Makkot 5b (ה:) — the Talmud in English

And we challenge this:

If it is an istatit,

this band of conspiring witnesses,

then even the first band should likewise not be put to death!

For they are entirely untrustworthy, since their intention is to discredit all those who testify concerning this defendant.

And we answer:

Rabbi Abbahu said:

For example,

they proceeded and killed him

the first band before another band came and established that they were zomemim, and only afterward it became clear that the band of zomemim was an istatit.

And we challenge this:

What has happened has happened!

If so, if the first band is put to death only in such a case, why was this matter necessary to write in the Mishna? After all, this is not a practical halakhic ruling at all; it merely informs us of the fact that if they have already killed the defendant, we cannot undo what happened. But there is no halakha that only the first band is put to death!

And we answer:

Rather, Rava said: This is what it is saying:

If there is only one band, they are put to death.

But

if there are more

bands,

they are not put to death

at all.

And we challenge this:

It says

“only,”

which implies that there are additional bands of witnesses, who are not put to death, and nevertheless the first band is put to death.

And we conclude: Indeed,

this is difficult.

The Gemara relates an incident:

There was a certain woman who brought witnesses,

who would testify on her behalf,

and they were discredited,

their testimony was contradicted and found to be false. That is, when the court examined them concerning their testimony, each contradicted the other regarding the details.

Again,

she brought witnesses,

a second band of witnesses,

and

they too

were discredited,

and their testimony was invalidated.

She went and brought other witnesses,

a third band,

who were not discredited.

Reish Lakish said:

We do not accept their testimony, since

this woman has been established

as

one

who brings false witnesses.

Rabbi Elazar said to him: If she has been established

as one who repeatedly seeks out and brings false witnesses, is it the case that

all Israel have been established

as willing to listen to her and lie? How, then, can we establish the witnesses who came the third time as liars, and why should we not accept their testimony!?

On another occasion,

at another time,

Rabbi Elazar and Reish Lakish were sitting

in the presence of

before Rabbi Yohanan.

A case like this one came before them,

a case of this sort came before them.

Reish Lakish said: This woman has been established

as one who brings false witnesses, and we will not accept their testimony.

Rabbi Yohanan said to him: If this woman has been established

as one who brings false witnesses,

have all Israel been established

as people who testify falsely!?

This was the same argument Rabbi Elazar had made earlier.

He turned and looked at him,

Reish Lakish turned his face

toward Rabbi Elazar

and gazed at him

angrily,

with a stern expression, because he understood from Rabbi Yohanan’s words that Rabbi Elazar had heard this argument from him but had not attributed it to him.

He said to him,

Reish Lakish said to Rabbi Elazar:

You heard a teaching from the son of the blacksmith,

Rabbi Yohanan,

and you did not tell me in his name!?

The Gemara analyzes this:

Shall we say that Reish Lakish,

who rejected the third band because the woman had been established as one whose witnesses were false, based his reasoning on the view

that he stated in accordance with Rabbi Yehuda,

who said in our Mishna that testimony is not accepted from witnesses who discredit all the bands, because they are an istatit, having been established as people who discredit others, and their testimony is invalidated on the basis of such a presumption?

And

if it were

Rabbi Yohanan,

who argued, “Have all Israel been established?”, his reasoning would be

that he stated in accordance with the Rabbis,

the first tanna in our Mishna, who said, “They will all be put to death,” trusting the band that has been established as one that discredits others.

And we reject this:

Reish Lakish could say to you: When I told you

that her witnesses should not be accepted,

even

according to the opinion of

the Rabbis

I said this.

For

the Rabbis stated their view there only up to this point,

that the witnesses are trusted to establish others as zomemim even though they themselves have been established as such, because

there is no

person before us

who is seeking,

who is trying to hire lying witnesses to come and establish separately each band that will testify against him as zomemim. For the discrediting witnesses came on their own initiative, and no one brought them.

But here,

there

is this

woman

who is seeking,

who is pursuing false witnesses. Therefore, we will not accept even those whose lying we have not succeeded in proving.

And,

conversely,

Rabbi Yohanan could say to you: When I said

that her witnesses are trustworthy despite the fact that she had previously brought false witnesses, I said this

even in accordance with Rabbi Yehuda,

who in our Mishna did not accept testimony from a band that had been established as one that discredits others.

For

Rabbi Yehuda stated his view only up to this point,

but

there,

because

we say: “Was the entire world standing there with these people?”

It is a logical assessment that it is not common for all the witnesses who came to testify to have been with the same band of discrediting witnesses at another place. Therefore, it is apparent that they are false witnesses.

But here,

with regard to the witnesses whom the woman brought, one cannot infer from the fact that all the earlier witnesses were found to be liars that the final band is also lying.

For it may be said that

these knew the testimony, whereas those did not know the testimony.

Mishna:

Conspiring witnesses are not put to death

until the judgment has been concluded on the basis of their testimony.

That is, unless the defendant’s judgment to be put to death has already been concluded, and only afterward they were established as zomemim. This matter is learned from the plain meaning of the verse:

For the Sadducees say

that the conspiring witnesses are not put to death

until he is killed

on the basis of their testimony, because this is what they understood from what is

stated: “

a life

for a life.”

They understood that only if they had taken his life are the conspiring witnesses put to death.

The Sages said to them: But it has already been stated, “

And you shall do to him as he plotted to do to his brother,”

which implies that he merely plotted to do it to his brother,

and his brother is still alive,

and he is punished for what he plotted to do.

And

rather,

if so, why was it stated, “

a life in place of a life”?

So that you should not say:

Perhaps, once their testimony has been accepted

and they have been established as zomemim,

they should be put to death,

because they have already plotted, and therefore even if the defendant’s judgment was not concluded before they were established as zomemim, they should be punished.

The verse therefore states, “

a life for a life.”

This

teaches

that they are not put to death until the judgment has been concluded.

Gemara:

A tanna

in a beraita taught:

Baribi

(the name of a Sage, the son of Rabbi)

says:

If they did not kill him—

they are put to death.

If they killed him—

they are not put to death!

His intention is to explain our Mishna: If only the judgment was concluded on the basis of their testimony, they are put to death; but if they have already killed the defendant, they are not put to death, because this is “as he did.”

He wondered and

said

to

his father: My son,

is it

not a kal va-chomer:

If, when they did not kill him, they are put to death, all the more so when they killed him, they should be put to death!

He said to him,

Baribi said to his father:

Our teacher, you have taught us that punishment is not imposed on the basis of a derivation!

A punishment may not be imposed solely on the basis of a kal va-chomer.

The source for this principle is the following

beraita: “

A man who takes his sister, his father’s daughter or his mother’s daughter

—it is a disgrace, and they shall be cut off before the eyes of the members of their people. He has uncovered his sister’s nakedness; he shall bear his sin.”

I have derived

from this verse the punishment of karet

only

for one who has relations with his sister

who is his father’s daughter,

who is

not his mother’s daughter, and

for one who has relations with his sister

who is his mother’s daughter,

who is

not his father’s daughter.

But his sister who is both

his mother’s daughter and

also

his father’s daughter—

from where

do we know that he is liable to karet for her?

The verse states at its conclusion,

“

He has uncovered his sister’s nakedness.”

This implies that he is punished with karet for every sister.

The tanna now returns to analyze what he said:

Before it could say

a special verse concerning his sister who is both his father’s daughter and his mother’s daughter,

I could

already have derived that he is liable to karet for her

by a derivation,

through a kal va-chomer:

For

if He punished one for

his sister who is

his father’s daughter

but not his mother’s daughter, and

punished one for

his mother’s daughter but not his father’s daughter,

with regard to his sister who is

his father’s daughter and his mother’s daughter—

is it not all the more so

that he should be liable to karet for her!?

This teaches

from the superfluous wording of the verse, “He has uncovered his sister’s nakedness,” which comes to teach a principle:

punishment is not imposed on the basis of a derivation.

The beraita continues:

The punishment—

we have learned

from here that one who has relations with his sister from his father and from his mother is liable.

The warning—

from where

do we know that one who has relations with his sister from his father and from his mother is warned against this by a prohibition?

The verse states: “

The nakedness of your sister, your father’s daughter or your mother’s daughter,

whether born in the household or born outside it, you shall not uncover their nakedness.”

I have derived

from this verse

only

the warning that one may not take

his father’s daughter who is not his mother’s daughter, or his mother’s daughter who is not his father’s daughter.

His sister who is

his father’s daughter and his mother’s daughter—from where

do we know the warning concerning her?

The verse states: “

The nakedness of your father’s wife’s daughter, born of your father—

she is your sister,

you shall not uncover her nakedness.”

The words “she is your sister” are superfluous, and they come to include one’s sister from both his father and his mother.

The tanna continues to analyze his statement:

Before it could say,

even if Scripture had not stated the two superfluous words “she is your sister” to warn concerning one’s sister from his father and his mother,

I could

derive the warning concerning her

by a derivation,

through a kal va-chomer:

For

if one was warned

also

concerning his mother’s daughter but not his father’s daughter, and

also concerning

his father’s daughter but not his mother’s daughter—

his sister who is

his father’s daughter and his mother’s daughter—

is it not all the more so

that he is warned concerning her!?

This teaches,

from the superfluous wording of the verse concerning this warning, which comes to teach a principle:

a warning is not derived from a kal va-chomer.

Thus far are the words of Baribi, who brought his father the beraita stating that punishment is not imposed on the basis of a derivation. The Gemara now continues its discussion of the Mishna: The verse states “a life for a life,” teaching that they are not put to death until the judgment has been concluded on the basis of their testimony.

From this verse one can learn only the case where the witnesses plotted against those liable to capital punishment by a court. However, when they plotted against

those liable to lashes, from where

do we know that they do not receive lashes for their plot until the judgment has been concluded on the basis of their testimony?

The verse states

the gzera shava explained [on the preceding page], that we derive the law of witnesses testifying against those liable to execution from the law of witnesses testifying against those liable to lashes,

“Wicked, wicked”:

Just as, with regard to those liable to execution, conspiring witnesses are not executed until the judgment of the defendant has been concluded on the basis of their testimony, so too, with regard to testimony concerning those liable to lashes, the witnesses do not receive lashes until the judgment has been concluded on the basis of their testimony.

Those liable to exile—where is this derived from?

We still have no source for the rule that conspiring witnesses who are liable to lashes receive lashes only if the judgment was concluded on the basis of their testimony. For they are not like conspiring witnesses who came to render someone liable to lashes, concerning whom we have now learned by means of the gzera shava “Wicked, wicked,” from those liable to execution, that they do not receive lashes until the judgment has been concluded on the basis of their testimony. This is because conspiring witnesses who sought to render someone liable to exile do not receive lashes under the law of “as he plotted,” but receive lashes for violating “You shall not bear false witness,” and with regard to these lashes there is no gzera shava from “Wicked, wicked,” which is a gzera shava only with regard to the punishment of “as he plotted,” a punishment for what the witnesses plotted against the defendants, and it does not teach anything concerning lashes for violating “You shall not bear false witness,” which were derived above from the special obligation expressed by “and they shall justify.”

The Gemara explains:

It is derived,

this can be learned by means of the gzera shava

“Murderer, murderer,”

from those liable

to execution.

For it is stated with regard to those liable to execution: “You shall accept no ransom for the life of a murderer,” and it is stated with regard to those liable to exile: “To flee there, the murderer.” Just as, with regard to those liable to execution, the witnesses are not executed until the judgment has been concluded on the basis of their testimony, so too, with regard to those liable to exile, the witnesses do not receive lashes until the judgment has been concluded on the basis of their testimony.

It was taught in a beraita: Rabbi Yehuda ben Tabbai said: May I see consolation,

an oath, meaning: May my sons die and may I see consolation for their deaths,

if I did not execute one

witness

who had been proven conspiring,

he alone having been proven conspiring from the group of witnesses, and I did this in order

to remove the error from the hearts of the Sadducees, who would say: Conspiring witnesses are not executed until the defendant has been executed.

When this witness was proven conspiring, the defendant had still not been executed.

Shimon ben Shetah said to him: May I see consolation, if you did not spill innocent blood.

For the Sages said

in the adjacent Mishna:

Conspiring witnesses are not executed until both of them have been proven conspiring.

And they do not receive lashes until both of them have been proven conspiring.

For it is written: “And behold, he is a false witness,”

and we derive in Sotah [2b] that everywhere the term witness is stated, it means two witnesses.

Immediately Rabbi Yehuda ben Tabbai accepted upon himself that he would issue halakhic rulings only in the presence of Shimon ben Shetah,

so that if he erred, Shimon would correct him.

And throughout all the days of Rabbi Yehuda ben Tabbai’s life, he would prostrate himself on the grave of that witness, and his voice could be heard.

And the people thought to say

that they were hearing

the voice of the slain man.

He said

to them:

It is my own voice.

Know

that this is so when you see

tomorrow, he [

I, as a euphemism]

is dead,

and then

his voice is not heard.

Then it will become clear to you that it was my voice that was heard when I prostrated myself on his grave.

Rav Aha, son of Rava, said to Rav Ashi:

There is no proof from the fact that his voice was not heard after he died that this was not the voice of the slain man.

For

perhaps

it was indeed the voice of the slain witness, and when Rabbi Yehuda ben Tabbai died it became silent, because

he stood with him in judgment.

He stood against him in the judgment of Heaven when he arrived there after his death.

Alternatively, he appeased him—

Rabbi Yehuda ben Tabbai appeased the slain witness.

Mishna: 44

It is stated in the Torah:

“By the testimony of two witnesses or three witnesses shall the dead man be executed,” [

Deuteronomy 17:6].

And the verse requires interpretation, for

if the testimony is established by two,

all the more so is it established by three.

If so,

why did the verse specify

three

witnesses?

Rather,

the verse mentioned three as well in order

to juxtapose three with two—

to teach:

Just as three can prove two conspiring,

since they outnumber the original witnesses,

so too, two can prove three conspiring.

And from where

do we know that two can prove

even one hundred

witnesses conspiring?

The verse states: “By the testimony of two witnesses or three witnesses.” It would have sufficed to say, “By the testimony of two or three witnesses.” Why, then, did the verse repeat the word “witnesses” with regard both to two and to three? Rather, the verse comes to include even one hundred witnesses.

Rabbi Shimon says:

the juxtaposition comes to teach us this:

Just as two are not executed until both of them have been proven conspiring, [

as we learned from “And behold, he is a false witness,” and the witness mentioned in the Torah means two witnesses]—

so too, three are not executed until all three of them have been proven conspiring.

And from where do we know that this applies even to one hundred?—

The verse states

“witnesses.”

Rabbi Akiva says: The third did not come to make the law more lenient. [

That is, Rabbi Akiva agrees that the law follows the first tanna and Rabbi Shimon; he disagrees only concerning the exposition of the verse and maintains that the Torah did not need to write “or three witnesses” in order to teach us that two can prove three conspiring, or that they are not considered conspiring witnesses until all of them are proven conspiring, since two are trusted with regard to every testimony, and it is obvious that they are also trusted to prove three witnesses conspiring.]

And from the verse “Behold, he is a false witness,” we have already learned that all three must be proven conspiring together, since they became witnesses together, and they constitute one “group of witnesses.”

Perforce, this superfluous wording did not come to teach us to make the law of conspiring witnesses more lenient when a third witness joins them;

rather,

the verse comes

to make the law more stringent for him,

the third witness, so that one might not say: His testimony is unnecessary, since the defendant would have been held liable without him, and therefore the law of conspiring witnesses should not be applied to him. The verse therefore comes to teach us that even the third witness is considered one of those who “establish the matter.”

And to render his law—

like theirs.

If all three of them were proven conspiring, all of them are executed, even though the testimony of the third was not needed to render the defendant liable.

And from here we learn—

And if so, [

if this is so,]

the verse punished

one who

joins

those who commit a transgression,

who is merely ancillary to them and is not needed, and nevertheless his law is

like that of those who commit a transgression—

all the more so will He grant reward to

one who

joins those who perform a mitzva, like those who perform a mitzva.

For the measure of goodness is greater than the measure of punishment. With regard to the measure of goodness it is stated: “Preserving kindness for thousands,” whereas with regard to punishment it is stated: “Visiting the iniquity of the fathers upon the third and fourth generations.” From here they learned that the measure of goodness is five hundred times greater than the measure of punishment!

And

Rabbi Akiva further expounded the juxtaposition of two to three, which comes to teach us:

Just as, with two witnesses, if one of them is a relative or disqualified, their testimony is invalidated,

since only one witness remains,

so too,

if

three

witnesses came, if

one of them is found to be a relative or disqualified, their testimony is invalidated.

From where

do we know that

even

if

one hundred

came and one of them was found to be a relative or disqualified, the testimony of all of them is invalidated?

The verse states

“witnesses.”