Makkot 5a (ה.) — the Talmud in English

For proclamation!

To teach us that one must make a proclamation after punishing them, that their punishment came because they plotted to have the defendant held liable, and thereby those who hear will be deterred from doing as they did.

And

if it were

Rabbi Meir—

from “

they will hear and fear”

is derived

the law of proclamation. According to him, the continuation of the verse, “and they shall not continue to do,” is superfluous, and is therefore expounded as a warning to conspiring witnesses.

Mishna:

They divide into thirds,

they divide the punishment for conspiring witnesses equally among the witnesses,

with regard to

testimony concerning

money,

as its punishment is monetary.

But they do not divide into thirds,

they do not divide the punishment

with regard to lashes.

When witnesses plotted to have the defendant flogged, and when they were proven to be conspiring witnesses they became liable to lashes, the lashes are not divided among them. Rather, each of the witnesses receives the full number of lashes that they plotted to have him receive.

How so?—

If

they testified concerning him that he owed his fellow two hundred zuz, and they were found to be conspiring witnesses, they divide it among themselves,

if there were two witnesses, each pays half; if there were three, each pays a third; and so forth.

But if they testified concerning him that he was liable to forty lashes, and they were found to be conspiring witnesses—

each and every one

of the witnesses

receives forty lashes.

The amoraim disagreed in the Gemara concerning the reason for this distinction.

Gemara:

We raise the following question:

From where are these matters derived,

that if the witnesses plotted to have someone receive lashes, each conspiring witness receives all forty lashes?

Abaye said: It is stated “

wicked”

with regard to those liable to lashes, [in Deuteronomy 25:] “If the wicked man is liable to be flogged.”

as it says in Deuteronomy 25: “If the wicked man is liable to be flogged.”

And it is stated “

wicked”

with regard to those liable to court-imposed executions, [in Numbers 35:] “who is wicked, deserving of death.”

as it says in Numbers 35: “who is wicked and liable to die.”

And they derive by means of the gzera shava: “wicked” from “wicked.”

Just as there,

with regard to those liable to execution,

there is no partial execution,

but all the conspiring witnesses are executed —

so too here,

when they plotted to have him receive lashes,

there are no partial lashes,

but each witness receives all the lashes, just as he would have been executed by a complete execution if he had testified against his fellow with testimony that made him liable to execution.

Rava said,

there is another source for the principle that lashes are not divided into thirds:

We require

that the witnesses be dealt with “as he plotted,”

but there is none,

if each witness receives only part of the lashes.

For if each of the witnesses receives only part of the lashes, the punishment of “as he plotted” has not been fulfilled, since they plotted to have the defendant alone receive a complete set of forty lashes.

And we challenge this:

If so,

if dividing the punishment of lashes among the witnesses does not fulfill “as he plotted,” then when they testified to make him liable for

money as well,

each of the witnesses should pay the full amount that he plotted to impose, so why do they divide it among themselves? And we answer:

Money—

combines!

Since a monetary liability is a payment to the defendant, each witness can pay his share, and together they give the defendant the entire amount that they plotted to cause him to lose; this is considered a single payment of “as he plotted.”

However, the punishment of

lashes—

does not combine!

For if the number of lashes is divided among them, each witness individually is not punished with a complete set of lashes, and there is nothing that combines their portions into the complete number of lashes that they plotted to administer!

See the note for an explanation of the rationale underlying this distinction.

Mishna:

Witnesses do not become conspiring witnesses

to have their testimony definitively nullified and to make them liable under “as he plotted”—

until the witnesses who prove them to be conspiring

the conspiring witnesses

themselves

conspiring witnesses

[are contradicted].

The disproof must concern the witnesses themselves, rather than their being contradicted by testimony concerning the plaintiff and defendant, or concerning the murderer and the murdered person.

The Mishna explains:

How

does hazama concern the witnesses themselves, and how does contradiction concern their testimony?

If

the first witnesses said,

the conspiring witnesses:

“We testify concerning so-and-so that he murdered a person,”

at a specific time and in a specific place.

And

the second witnesses said to them,

the second set of witnesses:

“How can you testify

that you saw this man murdering a person at that time and in that place? It is impossible that you saw him do so at that time,

for the murdered person, or the murderer,

was with us

all

that entire day

on which, according to your testimony, the act occurred,

in such-and-such a place!”

And that place is far from the place where, according to your words, you saw the act, and you could not have seen this act in the place you mentioned.

It necessarily follows that your testimony concerning him is founded on a lie!

This is contradiction of the testimony, but not hazama of the witnesses themselves. Therefore—

these are not

the first witnesses, considered witnesses

who are conspiring witnesses,

because only their testimony was contradicted, and they themselves were not proven to be conspiring witnesses. This case is treated as two groups of witnesses contradicting one another, where it remains uncertain what the truth is.

But if

if

they said to them,

the second witnesses said to the first ones:

“How can you testify

that you saw this in such-and-such a time and in such-and-such a place? You could not have seen this act,

for you were with us

all

that entire day in such-and-such a place,

which is far from the place where the act occurred, according to your words, and you could not have seen it on that day in that place—

These,

the first witnesses, become witnesses

who are conspiring witnesses, and they are executed,

the first witnesses, the conspiring ones,

on the basis of

the testimony of the second witnesses, who proved them to be conspiring witnesses. The Torah trusted the witnesses who prove hazama and not those proven to be conspiring witnesses, since the former testify concerning the persons of the first witnesses, that they were elsewhere. The first witnesses are not trusted to contradict them.

The Mishna continues and says: Even if, after the second witnesses, who prove hazama, came and proved the first witnesses to be conspiring,

there came

two more witnesses

others,

who testified in accordance with the testimony of the first witnesses,

and the original witnesses who had proven hazama returned

and proved them to be conspiring witnesses,

the witnesses of the second group as well, these witnesses are trusted to prove them to be conspiring witnesses too.

And even if again

others came,

the witnesses of a third group, and testified like the first group, and the original two witnesses who proved hazama again

proved them to be conspiring witnesses,

even if

there were

one hundred

groups of witnesses who testified in accordance with the testimony of the first group, and one group of witnesses who prove hazama proved them all to be conspiring witnesses, claiming that all of them were with them at that time in another place—

they will all be executed

on the basis of the testimony of the two witnesses who proved hazama.

Rabbi Yehuda says: This group of witnesses who prove hazama—

This group of witnesses who expose the others as conspirators is

“it is a conspiratorial group”

itself!

That is, the term indicates that it has deviated from the proper path.

For the witnesses who prove hazama must necessarily have conferred among themselves and decided to prove false all the witnesses who would come to testify concerning this act.

And

therefore

he is not executed

[she is not executed]

on the basis of their testimony,

the testimony of those who prove hazama,

but

only the witnesses of the

first group.

The Gemara will explain why we do not invalidate their testimony even with regard to the first group.

Gemara:

The Gemara discusses

from where are these matters derived,

that hazama applies only when they testify concerning the witnesses themselves, that they were not at the place of the act?—

Rav Adda said: The verse states: “

And behold, the witness is a false witness; he answered falsely

against his brother.”

From the precision of the wording—that it does not say, “And behold, the testimony is false,” but rather, “the witness is false”— it follows that they are not considered conspiring witnesses

until the substance of the testimony itself is shown to be false!

That is, they must testify to the falsehood in the persons of the witnesses themselves.

The school of Rabbi Yishmael taught:

We derive it from the fact that it is written,

“to answer falsely against it.”

And we explain:

Until the substance of the testimony itself is made to deviate!

The witnesses who testified are removed from the matter and disqualified from testifying when the witnesses who prove hazama come and testify concerning them that they did not see the act at all.

Rava said: If

two

witnesses came

and said:

“In the eastern section of the mansion

[a large reception hall]

so-and-so murdered a person.”

And two witnesses came

to prove them to be conspiring witnesses

and said: “But surely, at that same time,

at that very time

you were with us in the western section of the mansion”—we see,

we see,

that is, we observe,

if, as they stand,

if while they are standing

in the western section of the mansion,

it is possible

that they can see

that they are able to see

the eastern section of the mansion—

these are not conspiring witnesses.

And if not —

these are conspiring witnesses.

And we raise an objection:

Is this obvious?!

And we explain:

It might have entered your mind

that one might say that it is impossible to judge them as conspiring witnesses, because

perhaps they have exceptionally keen vision;

perhaps these witnesses can see farther than anyone else, and perhaps they indeed saw from east to west across the city.

It therefore teaches us

that we do not take this possibility into consideration, and we establish them as conspiring witnesses on this basis.

And Rava said: If two came and said: In

the city of

Sura,

in the morning,

at the time of morning,

on Sunday, so-and-so killed a person.

And two came

to establish them as conspiring witnesses,

and said:

On that same day,

in the afternoon,

toward evening,

on Sunday —

you were with us in Nehardea,

which is distant from Sura.

We see

that

if

from

morning until afternoon,

from morning until evening,

it is possible to travel

and arrive

from Sura to Nehardea —

they are not conspiring witnesses.

But if not,

if it is impossible to arrive within a single day, from morning until evening, from Sura to Nehardea,

they are conspiring witnesses,

since it is thereby proven that these witnesses were not at the place of the event about which they testified at the time it occurred.

And here, too, we raise an objection:

Is this obvious?!

And we explain: Rava came to teach by this statement that

it might have entered your mind to be concerned about

a flying camel,

perhaps the witnesses traveled from Sura to Nehardea on an exceptionally swift camel,

it therefore teaches us

that we do not take this possibility into consideration; rather, we establish them as conspiring witnesses on the basis of this testimony.

And Rava said: If two came and said: On Sunday, so-and-so killed a person.

And two came and said: You were with us on Sunday,

and you did not see such an event on Sunday, although the substance of your statement—that so-and-so killed the person—is correct.

Rather,

he did not kill him on Sunday, as you said, but rather on the following day,

on Monday, he killed

him,

so-and-so, the person

in question.

And not only that, but even if they said

—the second witnesses said: Already on

Friday evening, so-and-so killed the person!

Thus the killer had already become liable to receive the death penalty for an act that preceded the testimony of the conspiring witnesses.

Nevertheless, these first witnesses, who were established as conspiring witnesses,

are executed!

They are not exempt on the grounds that they came to testify against a person who was already liable for the death penalty, so that it turns out that they did not conspire to have him executed, since he was already a “dead man” at the time they came to testify against him —

because

at the time that they were testifying

about the event [which, according to their statement, occurred on Sunday] —

the man,

the murderer, who had in fact killed earlier, was still

not a man liable for execution.

Since, as long as they had not testified in court against him regarding the fact that he had actually killed on the preceding Friday, he was still not liable for the death penalty.

Therefore, had the testimony of the conspiring witnesses been accepted and not discredited, they would have rendered liable for execution a person who was not yet liable for execution; thus, they conspired to execute a person who was not yet liable for execution by a court.

And we challenge Rava:

What does this teach us

through these words of Rava?

But we already

learned

this novelty in the Mishna: It is possible that the defendant is liable for the death penalty, and nevertheless the conspiring witnesses are also executed for their testimony against him.

As we learned [below, 6b]: If two see him from one window and two from another window, if some of them do not see one another, they constitute two sets of witnesses.

Therefore, if one of them is found to be conspiring —

he and they are executed.

And

the other set

is exempt.

Thus, we learn that the conspiring witnesses are executed even though the actual event about which they testified was true, and the murderer himself is executed on the basis of the testimony of the second set. The reason is that when they came to testify falsely against him that he was liable for the death penalty, he had not yet become liable for execution by a court, although he had already committed the act of murder that rendered him liable for the death penalty. What, then, did Rava teach?

And we answer:

The latter clause,

because of the novelty in the conclusion of Rava’s statement, which will be explained below, where Rava said,

“This is not so with regard to

the discrediting of witnesses who testified regarding

the final judgment,” —

it was necessary for him

to teach this to us.

Therefore, he stated the entire teaching, even though it contains no independent novelty.

For after Rava said in the latter clause of his statement, as will be explained below, that in testimony concerning execution or a fine, the defendant’s liability depends on the final judgment, while the liability of conspiring witnesses depends on whether they testified before or after the final judgment, there is now a novelty even in Rava’s initial clause. In monetary matters, in which the defendant becomes liable even before the final judgment, the conspiring witnesses do not become liable if they testified after the act that rendered him liable, even if their testimony was false, because they did not see the act.

And this is the latter clause of Rava’s statement:

Two came

on Tuesday

and said: On Sunday

the judgment of so-and-so was finalized

in the court in a certain place, sentencing him to death because he had killed a person.

And two came

other witnesses and established them as conspiring witnesses,

and said: On Sunday you were with us

in another place.

Rather,

it was indeed so that so-and-so killed the person, and already

on Friday evening

of the previous week

the judgment of so-and-so was finalized.

And not only that, but even

the witnesses who established the first witnesses as conspiring witnesses delayed the time at which his judgment was finalized and

said,

the witnesses who established them as conspiring witnesses:

On Monday, the judgment of so-and-so was finalized

for execution —

these

conspiring witnesses

are not executed!

Because

even according to the testimony of those who established them as conspiring witnesses, on Tuesday,

even according to the testimony of the disqualifying witnesses, on Tuesday,

at the time that they were testifying,

when the conspiring witnesses testified,

the man was liable for execution.

His sentence of execution had already been issued by the court, and therefore one who kills him is exempt, since he has no blood [for which one is liable]. It follows that the conspiring witnesses did not come to create a new liability for execution, since he had already been sentenced to death by a court beforehand.

And Rava added and said:

And likewise with regard to payments of a fine!

For one who confesses to a fine is exempt from payment. Therefore, here too there is a distinction between testimony concerning the act itself and testimony that the judgment has already been finalized.

For if

two came and said: On Sunday he stole

a beast belonging to another person,

and slaughtered and sold

it, and he is therefore liable for double payment for the theft and for fourfold or fivefold payment [including the double payment] for the slaughter or sale,

and two came and said: On Sunday you were with us.

Rather,

the event indeed occurred in this manner, but only

on Monday he stole, slaughtered, and sold —

the first witnesses are conspiring witnesses, and

they pay,

since he had not yet become liable in court for the fine of double payment and the fine of fourfold or fivefold payment, and the thief could have exempted himself from the fine by confessing to it. Through this testimony, they came to render him liable and to prevent him from having the possibility of exempting himself.

And not only that, but even if they said

that the event had already occurred

on Friday evening,

when he

stole, slaughtered, and sold,

nevertheless the first witnesses are considered conspiring witnesses and

they pay,

because

at the time that they were testifying —

he was still

not a man liable for payment.

For the court had not yet rendered him liable for the fine, and he could confess to the fine and become exempt; through their testimony, he loses this possibility.

But if

two came

on Tuesday

and said: On Sunday he stole, slaughtered, and sold,

and already

his judgment was finalized,

and the court rendered him liable for payment of the fine,

and two came and said: On Sunday you were with us, but

the act and the final judgment had already occurred

on Friday evening,

when he

stole, slaughtered, and sold, and his judgment was finalized.

And not only that, but even if they said: On Sunday

he stole, slaughtered, and sold, and

only

on Monday his judgment was finalized,

nevertheless, the first witnesses

do not pay,

because

at the time that they were testifying

against him on Tuesday, already

the man was liable for payment; the court had already rendered him liable for payment of the fine on Monday, and they caused him no loss.

The court had already made him liable for the fine on Monday, and they caused him no loss.

Nor can he now confess and become exempt, since the court has already rendered him liable.

We learned in the Mishna:

Rabbi Yehuda says: This is a staged conspiracy.