Makkot 7a — the Talmud in English

Ile'a and Tuvya

were two witnesses concerning a loan. And both of them,

were relatives

—relatives

of the guarantor

of the loan—

were.

Rav Pappa was inclined to say that

they are not disqualified because of kinship to a litigant, since

with regard to

the plaintiff and the defendant, who are

the

borrower and the lender—

they are distant.

Rav Huna, son of Rav Yehoshua, said to Rav

Pappa:

Behold, the guarantor too is a litigant, since

if the borrower has no money

to repay the debt, does the lender not pursue the guarantor

to demand repayment of the debt!?

And since the guarantor is a litigant in this loan, his relatives are not valid to testify concerning it.

Mishna:

a.

One whose verdict was completed, and he fled

before the judgment and punishment were carried out against him, and he returned

and came before the same court

by which he was obligated—

they do not overturn his judgment!

They do not need to return and adjudicate his case, perhaps they will find a merit for him.

For this law—that the defendant has the right to request that they judge him anew—is [in Tractate Sanhedrin 42] only concerning one whom they are taking out to be executed, who, if he says, “I have something to teach in defense of myself,” they bring him back and judge his case a second time. But if he fled without a claim, his flight is not a reason to return and judge him again. [

But there are those who explain that, since he fled, the Sages penalized him, so that they would not return to judge his case. Arukh la-Ner].

But if he comes to another court, they must return and adjudicate his case.

b.

Wherever

two people stand and say: “We testify concerning so-and-so, whose verdict was completed in the court of so-and-so,”

for execution,

“and so-and-so and so-and-so are his witnesses” —

he shall be executed!

And the Gemara establishes the law of the latter clause outside the Land of Israel, where even before another court it is not necessary to return and adjudicate his case, and the law of the first clause when he went up to the Land of Israel; therefore, when he comes before another court, they overturn his judgment.

And since this is so, the Mishna concludes with the law of Sanhedrin everywhere:

c.

Sanhedrin—

is practiced in the Land and outside the Land.

That is, as long as there is a Great Court in the Chamber of Hewn Stone, judges who received ordination judge capital cases everywhere.

d.

A Sanhedrin that executes one person in a week,

seven years,

is called “

destructive.”

For it destroys the world, since they should have been deliberate in judgment and should have found merit in capital cases.

Rabbi Elazar ben Azariah says: One in seventy years.

And the Gemara discusses his intention: whether, according to him, even when it executes one person in seventy years it is called destructive, or whether he says the opposite—that if it executes one person in seventy years, this is the one that is not called destructive.

Rabbi Tarfon and Rabbi Akiva say: If we had been in the Sanhedrin

at the time when it judged capital cases,

not

would

a person ever have been executed.

For we would have examined the witnesses with questions to which they would not know how to respond, as explained in the Gemara.

Rabban Shimon ben Gamliel says:

If they acted in this manner,

they too

would have

increased bloodshedders in Israel,

because they would not fear punishment in court .

Gemara:

And the Gemara infers from the first clause of our Mishna, in which we learned that one who fled, returned, and came before the same court—they do not overturn his judgment.

It follows that specifically

before the same court they do not overturn

and do not judge him anew.

But

if the defendant came

before another court—

they overturn

his judgment and judge him anew.

And we raise a contradiction in the Mishna:

But the latter clause teaches: “Wherever two people stand and say: ‘We testify concerning so-and-so, whose verdict was completed in such-and-such a court, and so-and-so and so-and-so are his witnesses,’ he shall be executed.”

And it follows that even before another court they do not overturn his judgment!

And we answer:

Abaye said: It is not difficult.

Here,

in the first clause, the second court before which the defendant came was

in the Land of Israel,

and the first judgment was in a court outside the Land of Israel.

Therefore, if he comes before another court in the Land of Israel, they overturn his judgment, which was rendered outside the Land.

Whereas

here,

in the latter clause, it concerns a case where even the second court was

outside the Land,

and therefore they do not overturn his judgment.

And Abaye brings a source for this distinction:

For it was taught in a beraita: Rabbi Yehuda ben Dostai says in the name of Rabbi Shimon ben Shetah:

A defendant who

fled from

a court in the

Land

of Israel

to outside the Land,

after his verdict was completed, and came there before another court—

they do not overturn his judgment.

But if he fled

from

a court

outside the Land

and came

to

another court in the

Land

of Israel—

they overturn

his judgment, because of the merit of the Land of Israel,

perhaps he will find an opening of merit in the Holy Land.

We learned in the Mishna:

Sanhedrin is practiced

in the Land and outside the Land.

And we inquire concerning it:

From where are these matters?

For the Sages taught: “

And these shall be for you a statute of judgment throughout your generations

in all your dwelling places” [Numbers 35:29]. [

Rashi, in his commentary on the Torah there, brought that the Sifrei expounds this from the end of this verse, for it is written, “in all your dwelling places”].

We learn that Sanhedrin is practiced

in all the dwelling places,

in the Land and outside the Land.

And we object:

If so,

that from here we learned that Sanhedrin is practiced also outside the Land,

what is the meaning of

the verse in the portion of Judges [Deuteronomy, chapter 16], “Judges and officers shall you appoint for yourself

in all your gates,”

which implies only in your gates—that is, in the gates of the towns in the Land of Israel, and not in the gates of the towns outside the Land, which are not “the gates of your towns”?

This verse comes to teach that

in “

your gates,”

in the Land of Israel alone,

you shall place courts in every district and every district,

province and province,

and in every city and every city.

And

if

outside the Land

you are obligated to establish courts only

in every district and every district, and you are not

obligated to be

establishing

courts

in every city and every city.

We learned in the Mishna:

A Sanhedrin that executes

one person in a week is called destructive.

Rabbi Elazar ben Azariah says: One in seventy years.

It was asked of them:

Rabbi Elazar ben Azariah, who said, “One in seventy years”—does he mean that a Sanhedrin that executes even once

in seventy years is called ‘destructive’

as once in a week according to the Sages?

Or perhaps

one time in seventy years

is a customary occurrence;

it is the way of the world, that they execute and do not find merit, and only one that executes more frequently than this is called destructive.

that people will be executed and no grounds for acquittal will be found; only a Sanhedrin that executes more frequently than this is called destructive.

And we conclude:

Teyku.

We learned in the Mishna:

Rabbi Tarfon and Rabbi Akiva say: If we had been, etc.

And we inquire concerning it:

How would they act,

how would they exempt the defendant even though witnesses testified against him that he had killed?

Rabbi Yohanan and Rabbi Elazar both say

that they would ask the witnesses:

Did you see

whether the person who

was mortally injured had killed

the murderer, or whether he

was whole

when he

killed?

That is, did you examine the murdered person after his death to determine whether he was whole? For perhaps he was a mortally injured person, who had conditions that cause a person not to live more than a year, and one is not liable for killing such a person with the death penalty.

Rav Ashi said:

Even

if you should say

that the witnesses would answer, “Indeed, we examined him after death to see whether he was mortally injured, and we found him to be a person

whole

and healthy;

he

was,” testifying that they examined him for all the causes of mortal injury, they would still be afraid to execute him, because

perhaps in

that

place

where the murderer struck him with a

sword—

there was a perforation!

That is, perhaps the perforation that makes a person mortally injured was in the same place where the murderer struck the murdered person with a sword, and it is now impossible to know whether in this place there was not a perforation that makes a person mortally injured.

Therefore, it is never possible to execute a murderer who murdered with a sword.

And still we ask: for this exemption is only regarding a death penalty for which murderers are liable.

But

in the case of one who has intercourse with a forbidden woman

who is liable to a court-imposed death penalty,

how would they act,

how would they exempt him from the death penalty?

And we explain:

Abaye and Rava, both say:

They would ask the witnesses: did you

see

that he had intercourse with the forbidden woman

like

one who inserts

a brush into a tube?

It is an analogy for the manner of sexual intercourse. And since the witnesses do not look closely at this, the one who had intercourse would be exempt from the death penalty.

And we object: if so,

but the Rabbis,

who, according to their opinion, would indeed execute one who had intercourse with the forbidden woman

how would they judge him?

On what testimony do they rely in order to execute him, when the witnesses do not see the transgression precisely?

And we answer:

in accordance with Shmuel—

As Shmuel said:

the law of testimony

concerning adulterers —

once they see [them] behaving like adulterers!

It is sufficient that the witnesses see them conducting themselves in the manner of intercourse in order to make the man who had intercourse and the woman with whom he had intercourse liable, and they need not testify that they saw [it] like a brush in a tube.

Hadran alakh, chapter How the Witnesses [are examined].

Mishna:

These are the exiles

to the cities of refuge:

One who kills a person unintentionally,

and his law is divided according to the manner in which the act that caused him to kill his fellow was performed:

If

he was smoothing with a ma'agila,

he was plastering his sloping roof with plaster, and smoothing it with a piece of wood used by plasterers, called a "ma'agila," and he pushed it before him, along the slope of the roof downward,

and it fell upon him and killed him.

Or

he was lowering a barrel,

bringing it down from the roof, and certainly taking care that it would not break, so that he would not lose the barrel,

and it fell upon him and killed him.

Or he himself

was descending a ladder,

on its steps, taking the greatest care not to fall and be injured,

and he fell upon him and killed him

by the weight of his body—

In all these manners

he goes into exile!

The wording of Maimonides [chapter 6 of the Laws of Murderer]: For the manner of falling is commonly liable to cause damage most of the time, and it is something close to occurring. For it is the nature of something heavy to descend downward quickly. And since he did not hasten himself and properly correct his actions at the time of descent, he shall go into exile.

And in each example there is a novelty over the preceding one: even if he took greater care, he is still not considered coerced, but rather unintentional.

But if he was pulling

toward himself

with a ma'agila,

as he was occupied with pulling the smoothing wood toward himself and it slipped from his hand,

and it fell upon him and killed him.

Or

he was drawing up a barrel

and lifting it from below upward,

and the rope snapped, and it fell upon him and killed him.