Makkot 5b — the Talmud in English

And we challenge this:

If it is an istatit,

this band of conspiring witnesses,

then even the first band also should not be executed

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

And we answer:

Rabbi Abbahu said:

For example,

they proceeded and killed

the first band before another band came and discredited them, and only then was it revealed that the band of discrediting witnesses was an istatit.

And we challenge this:

What has happened has happened!

If so, since the first band is executed only in such a circumstance, for what purpose does the Mishna need to write this matter? After all, there is no practical halakhic ruling here, but only the statement of the fact that if they have already killed him, we have no way to restore the situation. Yet there is no halakha to execute only the first band!

And we answer:

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

If there is only one band, they are executed.

But

if there are more

bands,

they are not executed

at all.

And we challenge this:

It says

“only”

and this implies that there are other bands of witnesses, who are not executed, and nevertheless the first one is executed.

And we conclude: Indeed,

this is difficult.

And the Gemara brings an incident:

There was a certain woman who brought witnesses,

who brought witnesses to testify on her behalf,

and they were discredited,

their testimony was contradicted and found false; that is, when the court examined them concerning their testimony, one contradicted the other in details.

Again,

she brought witnesses,

she brought a second band of witnesses,

and

they too

were discredited,

and their testimony was nullified.

She went and brought other witnesses,

a third band,

who were not discredited.

Reish Lakish said:

Their testimony may not be accepted, 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 goes and brings false witnesses, is it the case that

all Israel—have they been established

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

On another occasion,

another time,

Rabbi Elazar and Reish Lakish were sitting

before

Rabbi Yohanan.

An incident like this one came before them,

an incident of this kind 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,

has all Israel been established

to testify falsely!?

And this was like Rabbi Elazar’s argument above.

He then turned and looked at him,

Reish Lakish turned his face

to Rabbi Elazar,

and looked at him

with displeasure,

with an angry expression, because he understood from Rabbi Yohanan’s wording that Rabbi Elazar had heard this argument from him, yet had not stated it to him in his name.

He said to him,

Reish Lakish said to Rabbi Elazar:

You heard a teaching from the son of the smith,

Rabbi Yohanan,

and you did not tell it to me in his name!?

And the Gemara discusses this:

Shall we say that Reish Lakish,

who rejected the third band because the woman with these witnesses had been established as having false witnesses, his reason was

that he agreed with Rabbi Judah,

who said in our Mishna that testimony is not accepted from witnesses who discredit all the bands, because they are an istatit band, which has been established as one that discredits, and their testimony is nullified on the basis of such a presumption?

And

if

Rabbi Yohanan,

who argues, “Has all Israel been established?”—his reason is

that he agreed with the Rabbis,

the first tanna in our Mishna, who said, “They will all be executed,” and believes the band that has been established as one that discredits.

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 position of

the Rabbis

I said this.

For

the Rabbis said only there

that they are trustworthy to discredit even though they have been established as doing so, because

there is no

person before us

who is going about,

seeking to hire false witnesses who would come and discredit separately every band that came against him; for the discrediting witnesses came on their own, and no person brought them.

But here,

there is

this

woman

who is going about,

seeking false witnesses, and therefore we will not accept even these, whom we have not succeeded in proving to be liars.

And

likewise, on the other hand,

Rabbi Yohanan could say to you: I said

that her witnesses are trustworthy despite the fact that she had previously brought false witnesses

even according to Rabbi Judah,

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

For

Rabbi Judah said only

but

there,

because

we say: Perhaps all the world was standing with these people?

It is logical that it is not common for all the witnesses who came to testify to have been with that band of discrediting witnesses in another place; therefore it is evident that they are false witnesses.

But here,

with the witnesses whom the woman brought, one cannot infer from the fact that all the first ones were found to be liars that the last band too are liars.

For it may be said that

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

Mishna:

Conspiring witnesses are not executed

until the judgment has been finalized on their testimony.

That is, unless the defendant’s judgment had already been finalized for execution, and afterward they were discredited. And this matter is learned from the plain meaning of the verse:

for the Sadducees say

that conspiring witnesses are not executed

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.”

And they understood that only if they had taken his life are the conspiring witnesses executed.

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

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

which implies that he only intended to do it to his brother,

and his brother is alive,

and he is punished for what he intended to do.

And

rather,

if so, why is it stated: “

a life in place of a life”?

So that you should not say:

Perhaps, once they have accepted their testimony

and they were discredited,

they should be executed,

because they have already intended it, and therefore even if the judgment had not been finalized and they were discredited, they should be punished.

The verse therefore says: “

a life for a life.”

This

teaches

that they are not executed until the judgment has been finalized.

Gemara:

The tanna

in a beraita:

Barיבי [a sage’s name, the son of Rabbi]

the name of a sage, the son of Rabbi]

says:

If they did not kill him—

they are executed.

If they killed him—

they are not executed!

And this is his intention regarding our Mishna: if the judgment was only finalized on their testimony, they are executed; but if they had already killed the defendant, they are not executed, because this is “as he did.”

He was astonished and

said

to him,

“My son”,

is it not the case that

it is a kal va-chomer: if, when they did not kill him, they are executed, all the more so if they killed him, they should be executed!

If, when they did not execute him, they are executed, all the more so when they executed him, they should be executed!

He said to him,

Barיבי to his father: Surely

our teacher taught us that punishment is not imposed on the basis of a logical derivation!

A punishment is not imposed solely on the basis of a derivation from a kal va-chomer.

And the source for this principle is from that

which was taught: “

A man who takes his sister, the daughter of his father or the daughter of his mother

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

I have only

learned from this verse that one is punished with excision

but

for one who has relations with his sister

the daughter of his father, who is

his sister

not the daughter of his mother, and

for one who has relations with his sister

the daughter of his mother, who is

his sister

not the daughter of his father.

But with regard to his sister who is both

the daughter of his mother and

also

the daughter of his father—

from where

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

The verse teaches

at its end: “

He has uncovered the nakedness of his sister.”

And this implies that for every sister he is punished with excision.

And now the tanna returns and reasons concerning what he said:

Before it says

a special verse concerning his sister from his father and mother,

I have

also learned to make him liable to excision for her

by the law,

through a derivation of kal va-chomer:

For

if he was punished for

his sister who is

the daughter of his father

but not the daughter of his mother, and

he was punished for

the daughter of his mother but not the daughter of his father,

with regard to his sister who is

the daughter of his father and the daughter of his mother—

is it not all the more so

that she is subject to excision!?

This teaches

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

punishment is not imposed on the basis of a logical derivation.

And the beraita continues and says:

Punishment—

we have heard

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

Warning—

from where

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

The verse teaches: “

The nakedness of your sister, the daughter of your father or the daughter of your mother,

born in the house or born outside, you shall not uncover their nakedness.”

I have only

learned from this verse

but

to warn that he should not take

the daughter of his father who is not the daughter of his mother, and the daughter of his mother who is not the daughter of his father.

His sister who is

the daughter of his father and the daughter of his mother—from where

do we know the warning concerning her?

The verse teaches: “

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 his sister from his father and his mother.

And the tanna continues to reason concerning his words:

Before it says,

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

I have

learned to warn concerning her

by the law,

through a derivation of kal va-chomer:

For,

if he was warned

also

concerning the daughter of his mother who is not the daughter of his father, and

also concerning

the daughter of his father who is not the daughter of his mother—

his sister who is

the daughter of his father and the daughter of his mother—

is it not all the more so

that they are warned concerning her!?

This teaches,

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

warnings are not given on the basis of a logical derivation.

Thus far are the words of “Barיבי,” who brought his father the beraita stating that punishment is not imposed on the basis of a logical derivation. And the Gemara continues to discuss the words of the Mishna: the verse teaches “a life for a life,” to teach that they are not executed until the judgment has been finalized on their testimony.

From this verse one can learn only when the witnesses intended the punishment of those liable to court-imposed executions. But when they intended the punishment of

those liable to lashes, from where

do we know that they are not lashed for their intention until the judgment has been finalized on their testimony?

The verse says

the gezera shava explained [on the preceding page], by which we learn from the law of witnesses concerning those liable to death to the law of witnesses concerning those liable to lashes,

“wicked, wicked”:

Just as with regard to those liable to death, the conspiring witnesses are not put to death until the judgment of the accused has been concluded through their testimony, so too, with testimony concerning those liable to lashes, they are not flogged until the judgment has been concluded through their testimony.

Those liable to exile—from where?

We still have no source for conspiring witnesses who are liable to lashes, that they are flogged only if the judgment was concluded through their testimony. For they are not like conspiring witnesses who came to make someone liable to lashes, concerning whom we have now learned through the gezera shava of “wicked, wicked,” from those liable to death, that they are not flogged until the judgment has been concluded through their testimony. This is because conspiring witnesses who sought to make someone liable to exile are not flogged under the law of “as he plotted,” but are flogged for the transgression of “You shall not answer as a false witness,” and with regard to these lashes there is no gezera shava from “wicked, wicked,” which is a gezera shava only concerning the punishment of “as he plotted,” which is a punishment for what the witnesses plotted against the accused, and it does not teach about lashes for “You shall not answer as a false witness,” which are learned above from the special obligation of “and the righteous shall justify.”

And the Gemara explains:

It is derived,

this is to be learned by a gezera shava of

“murderer, murderer”

from those liable

to death.

For concerning those liable to death it is said, “You shall not take ransom for the life of a murderer,” and concerning those liable to exile it is said, “to flee there, the murderer”; just as concerning those liable to death the witnesses are not put to death until the judgment has been concluded through their testimony, so too concerning those liable to exile the witnesses are not flogged until the judgment has been concluded through their testimony.

It was taught: Rabbi Judah ben Tabai said: May I see consolation,

an expression of an oath: may my sons die and may I see their consolation,

if I did not put to death

one

conspiring

who alone among the group of witnesses had been refuted, and I did this in order

to remove from the hearts of the Sadducees, who would say: Conspiring witnesses are not put to death until the accused has been put to death.

And when this witness was refuted, the accused had still not been put to death.

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

For the Sages said

in the Mishna nearby:

Conspiring witnesses are not put to death until both of them are refuted.

And they are not flogged until both of them are refuted.

For it is written, “And behold, the false witness has testified,”

and we learn in Sotah [2b] that everywhere that “witness” is stated, its meaning is two witnesses.

Immediately Rabbi Judah ben Tabai accepted upon himself that he would issue legal rulings only before Shimon ben Shetah

so that if he erred, he would correct him.

And throughout all the days of Rabbi Judah ben Tabai, he would prostrate himself upon the grave of that witness, and his voice would 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.

You should know

that this is so when you see

tomorrow, he [

I, in an expression of euphemism]

dead,

and then

his voice is not heard.

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

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

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

For

perhaps

indeed this was the voice of the slain witness, and when Rabbi Judah ben Tabai died it became silent, because

he stood with him in judgment.

He stood against him in the judgment above when he came there upon his death.

Alternatively, he appeased him,

Rabbi Judah ben Tabai appeased the slain witness.

Mishna: 44

It is stated in the Torah:

“By the mouth of two witnesses or three witnesses shall the dead man be put to death” [

Deuteronomy 17:6].

And the verse demands interpretation, for

if the testimony is established through two,

all the more so is it established through three.

And if so,

why did the verse specify

three

witnesses?

Rather,

the verse also stated three, in order

to compare three to two—

to teach:

just as three refute two,

for they are more numerous than the first witnesses,

so too two refute three.

And from where

do we know that two refute

even one hundred

witnesses?

The verse says, “By the mouth of two witnesses or three witnesses.” It would have been sufficient to say, “By the mouth of two or three witnesses”; and for what purpose did the verse repeat and say “witnesses” both with regard to two and with regard to three? Rather, the verse comes to include even one hundred witnesses.

Rabbi Shimon says:

the comparison comes to teach us this matter:

Just as two are not put to death until both of them are refuted, [

as we learned from “And behold, the false witness has testified,” and a witness stated in the Torah means two]—

so too three are not put to death until all three of them are refuted.

And from where—even one hundred? —

The verse says

“witnesses.”

Rabbi Akiva says: The third did not come to make it lenient.

That is, Rabbi Akiva agrees that the law is like the first tanna and like Rabbi Shimon, but he only disagrees concerning the exposition of the verse, and holds that the Torah did not need to write “or three witnesses” in order to teach us that two refute three, or that they are not refuted until all of them are refuted, for two are believed for every testimony, and it is obvious that they are also believed to refute three.

And from the verse “Behold, the false witness has testified” we already learned that it is necessary to refute the three as one, for they all became witnesses at once, and they are one “group of testimony.”

And necessarily, this superfluous wording did not come to teach us to make the law of conspiring witnesses lenient when a third witness is added with them;

rather, the verse came

to

make his law more stringent,

concerning the third witness, so that it should not be said: We do not need his testimony, and without him the accused would have become liable, and we will not apply the law of plotting to him. Therefore, the verse came to teach us that the third too is considered one of the “establishers of the matter.”

And to make his law —

like that of these.

For if all three of them were refuted, they are all put to death, even though his testimony was not needed to make the accused liable.

And from here we learn—

And if so [

if this is so]

the verse punished

one who is

attached

to those who commit a transgression,

who is merely secondary 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 is

attached to those who perform a mitzva, like those who perform a mitzva.

For the measure of goodness is greater than the measure of punishment. For concerning the measure of goodness it is said, “preserving kindness for thousands,” whereas concerning punishment it is said, “visiting the iniquity of the fathers upon the third and upon the fourth generations.” And they learned from here that the measure of goodness is greater than the measure of punishment five hundredfold!

And

Rabbi Akiva further expounded from the comparison of two to three, which came to teach us: Just as with two, if one of them is found to be related or disqualified, their testimony is invalid,

since only one witness remains,

so too

if

three

witnesses came, if

one of them is found to be related or disqualified, their testimony is invalid.

From where

do we know that

even if

one hundred

came and one of them was found to be related or disqualified, the testimony of all of them is invalid?

The verse says

“witnesses.”

The verse states

“witnesses.”