Sanhedrin 10a — the Talmud in English

One who comes to testify and says:

“So-and-so had relations with my wife!”

It follows that

he,

the husband, and another witness

combine

in their testimony

to have him executed,

that so-and-so, as is the law concerning one who has relations with a married woman.

But they do not

combine

to have her executed,

the woman. For the husband is not fit to testify concerning his wife, since he is her close relative, and a close relative is disqualified from testimony. Rather, his statement is divided into separate parts. Therefore, although his testimony regarding executing the man who had relations with her is accepted, his testimony regarding the woman with whom he had relations is not accepted.

The Gemara discusses this:

What does this teach us?

What did Rava intend to teach us?

If he intended to teach

that we divide the statement,

meaning that we divide the credibility of his testimony, this is not a novel teaching, because

this is the same law!

It is the same law that Rava already taught us concerning the case: “So-and-so had relations with me willingly.”

The Gemara answers: This case contains a novel point that is absent from the earlier law.

You might have said

that if Rava had not taught us this novel point, we might have said that only

“a person is considered close to himself” is stated,

and therefore the testimony that he gave concerning himself is nullified. But

“a person is considered close to his wife” is not stated.

Therefore, his closeness to his wife would not cause the part of his testimony concerning her to be nullified. Rather, we might have said: Since his testimony concerning so-and-so, to have him executed, is trustworthy, and his testimony is heard and accepted in court because he is testifying concerning that man, his testimony concerning his wife should likewise be trustworthy.

Therefore,

Rava teaches us

that his closeness to his wife does indeed nullify the part of his testimony concerning her, and that only through dividing the statement is his testimony concerning so-and-so accepted.

The Gemara now brings another law concerning testimony.

And Rava said:

Two witnesses who testified and said:

“So-and-so had relations with a betrothed young woman,”

and they came to testify concerning the man, not concerning the young woman, and did not state the young woman’s name in their testimony,

and

afterward

were proven to be conspiring witnesses,

as other witnesses came and said: “You were with us elsewhere on that day, and therefore you could not have seen the act that you claim took place elsewhere”—the witnesses who were found to be conspiring

are executed

for having plotted to have “so-and-so” executed.

But

they do not pay money.

That is, they do not pay for the financial loss that they intended to cause the betrothed young woman by depriving her of the beneficial value of her marriage contract [as explained above, on page 9b], since they did not cause any young woman a loss, as they did not testify to the name of the young woman.

But if they testified concerning so-and-so that he had relations with a betrothed young woman, and mentioned that she was

the daughter of so-and-so,

thereby stating the young woman’s name,

and were proven to be conspiring witnesses—

then they

are executed

for having plotted to have so-and-so and the young woman executed,

and

also

pay money

to the young woman’s father, because they intended to deprive him of the beneficial value of the marriage contract, to which he has the right.

Therefore, since they plotted to cause the father a financial loss and plotted to have the man who had relations with the young woman and the young woman executed, their conspiratorial testimony is considered two separate testimonies:

“money for one person, and capital punishment for another,”

and therefore they are not exempt from paying money under the principle that when one is liable for the more severe punishment, that punishment takes precedence over the lesser punishment.

The Gemara brings a similar law, which Rava stated concerning an animal with which a person had relations.

And Rava said:

Two witnesses who testified and said:

“So-and-so had relations with

the

ox,”

and came to have the man who had relations with the animal executed, but did not come to have the ox executed, because they did not state to whom the ox belonged,

and were proven to be conspiring witnesses—

the witnesses found to be conspiring

are executed

for having plotted to have that man executed,

but do not pay money.

For they did not cause anyone to lose an ox.

But if they said: So-and-so had relations with

so-and-so’s ox!

and intended both to have so-and-so executed and to cause the owner of the ox to lose his ox,

and were proven to be conspiring witnesses,

then the witnesses found to be conspiring

are executed

for having plotted to have so-and-so executed,

and

also

pay money

to the owner of the ox, because they plotted to cause him to lose his ox. The principle that the more severe punishment takes precedence does not apply here, because their testimony is

“money for one person, and capital punishment for another.”

The Gemara raises a difficulty: What novel point does Rava teach us with this law?

This further case,

this second law stated by Rava,

why do I need it?!

Why did Rava need to teach it to us, when

this is the same law!

This law is precisely the same as the preceding law concerning “so-and-so had relations with a betrothed young woman.”

The Gemara answers: Indeed, Rava did not need to teach the basic law itself. Rather, he stated it as an introduction to another law.

Because he wanted to raise a question concerning it,

as Rava was uncertain about this law in a particular situation.

Rava raised the following question:

If the owner of the ox came with another witness, and both testified:

“So-and-so had relations with my ox! What is the law?”

It is obvious to Rava that the man is executed, since the owner’s testimony concerning that man is accepted together with the testimony of the additional witness. Rava’s question concerned the ox: Is it executed, or not?

For it is clear that if the owner came to testify concerning his ox, saying that it had relations with a person or that a person had relations with it, but did not testify concerning a specific person, the ox is not stoned on the basis of his testimony. Rather, the question is whether, if the owner testifies and identifies the person who had relations with the ox or with whom the ox had relations, and his testimony concerning that person is accepted so that the person is executed, his testimony concerning his ox is also accepted. The possible sides of the question are as follows:

Do we say: Although

a

person is considered close to himself,

nevertheless

a person is not considered close to his property

with regard to dividing the statement? His closeness to his property cannot cause us to divide his statement. If we do not divide his statement, we say: Just as he is trusted concerning the man, and his testimony is heard and accepted in court, so too he is trusted concerning his property, and the ox is executed.

On the other hand—

or perhaps we say that a person is considered close to his property,

and his closeness to his property causes us to divide his statement: his testimony concerning the man is accepted and he is executed, while his testimony concerning the ox is not accepted, and the ox is not executed.

After raising the question,

after being uncertain,

he then resolved it

by logical reasoning:

“A person is considered close to himself,”

and we divide the statement, but

a person is not considered close to his property

so as to divide his statement. Just as he is trusted concerning the man, he is trusted concerning the ox, and therefore the ox is executed.

We learned in our Mishna:

“Lashes, with three.”

The Gemara discusses this:

From where are these matters derived?

From which verse did the Sages learn that a court of three is sufficient to impose forty lashes?

Rav Huna said: The verse states [Deuteronomy 25]: “When there is a dispute between people, and they approach the court, and they judge them, and they acquit the righteous and find the wicked liable. And it shall be, if the wicked person is liable to lashes, that the judge shall flog him forty times.”

The expression

“and they judge them,”

is in the plural;

that indicates two, and

since

a court may not have an even number of judges

as explained above, on page 3b,

one more is added to them; that makes three.

The Gemara raises a difficulty:

But if that is so,

if we interpret the verse in this manner, it also says there

“and they acquit”

in the plural—

that indicates two.

And it also says there

“and they find liable”—

that indicates

two,

making six altogether, and we should add one more;

that makes seven.

Why should we not interpret the verse in this manner, requiring seven judges to impose lashes?

The Gemara answers: The verse “and they acquit the righteous and find the wicked liable” cannot be expounded as indicating the number of judges, because it is needed for another exposition.

That

particular verse is needed for the teaching of Ulla,

for the matter taught by Ulla.

As Ulla said: What is the scriptural indication of conspiring witnesses?

Where do we have an indication in the Torah concerning witnesses who are found to have conspired?

Before continuing to bring Ulla’s exposition, the Gemara raises a difficulty:

Is it necessary to seek a

scriptural indication

from the Torah

concerning conspiring witnesses?! For,

this matter is explicitly stated in the Torah, as

it is written [Deuteronomy 19]: “When a false witness rises against a person to testify falsely against him, and the judges investigate thoroughly, and behold, the witness is a false witness; he testified falsely against his brother, then you shall do to him

так, как он замышлял

as he plotted

to do to his brother.”

The Gemara answers that Ulla intended to say:

What is the scriptural indication concerning conspiring witnesses

who cannot be punished with the very punishment that they plotted to inflict?

That they are given lashes,

that they are liable to receive forty lashes—

from where is this derived?

For example: Two witnesses testify concerning a koen who is presumed to be fit for the priestly service, saying that he is disqualified from the status of a koen and does not possess the sanctity of a koen, because his mother was divorced before she married his father, who was a koen, and the witnesses saw her divorce from her previous husband. Therefore, since his father was a koen who married a divorcee, he is disqualified from the status of a koen. Other witnesses then come

and prove them to be conspiring witnesses, saying: “At the time when you claim that you saw the mother’s divorce in a particular place, you were with us elsewhere, and you could not have seen the divorce there as you claimed.” When they come to punish the witnesses for their plot, it is impossible to punish them with the same punishment, namely, to make them disqualified from the status of a koen, because if they are Israelites this is not a punishment for them; and even if they are koanim, the Gemara there [Makkot 2b] explains that they cannot be punished by being made disqualified from the status of a koen.

In such a case, their punishment is forty lashes. Concerning this law, which is not learned from the verse “as he plotted,” since the punishment for conspiring witnesses cannot be carried out against them in that manner, Ulla asks: From where do we have an indication that they are liable to receive lashes?

Ulla expounds:

As it is written: “And they acquit the righteous and find the wicked liable.

And it shall be, if the wicked person is liable to lashes.” The question arises:

Is it because they acquit the righteous and find the wicked liable

that it says

“and it shall be, if the wicked person is liable to lashes”?

Granted, the wicked person’s guilt makes him liable to lashes; but why did the Torah mention the righteousness of the righteous person? Is the wicked person given lashes because of the other person’s righteousness?

Rather,

the Torah is hinting here to the law of conspiring witnesses: the wicked person receives lashes because the righteous person was acquitted. For example, at first

witnesses

who were liars came and

found the righteous person liable,

testifying falsely against him.

And

afterward

other witnesses came,

other witnesses came to court,

and

they

acquitted the originally righteous person,

the defendant, who had been righteous from the beginning, but whom the first witnesses falsely testified was wicked. Moreover, these witnesses found the genuinely wicked people liable,

and made those witnesses into wicked people,

meaning that they established that the first witnesses were conspiring witnesses. The law then is:

“And it shall be, if the wicked person is liable to lashes,”

meaning that the “wicked person,” the false witnesses, receive the forty lashes.

This exposition was stated [according to the Sages, who disagree with Rabbi Meir there in tractate Makkot] only when there is no other punishment. But if there is another punishment, such as when witnesses concerning money are proven to be conspiring witnesses, they are not punished both monetarily on the basis of the verse “as he plotted” and with lashes on the basis of Ulla’s verse, because a person is not given two punishments for one transgression. Rather, they pay money and do not receive lashes, as explained there.

The Gemara raises a difficulty against Ulla’s exposition: Why does he need to derive this from a verse that conveys the matter only by hint?

And let him derive it

by learning that they are liable to lashes

from

the verse [Exodus 20]:

“You shall not testify

against your fellow as a false witness.” Since the conspiring witness violated this negative commandment, he should be liable to lashes, as is the case with all negative commandments.

The Gemara answers that it is impossible for him to be liable to lashes for the negative commandment “You shall not testify”—

because it is a negative commandment whose violation does not involve an action,

as one violates it without performing an action, since it consists only of speech, and speech is not considered an action.

And

the law is that

for every negative commandment whose violation does not involve an action, one does not receive lashes,

since it is written in the Torah [Deuteronomy 28]: “If you do not take care to perform, the Lord will make your blows extraordinary.” The Sages expounded from here: Only one who commits a transgression through a complete action receives lashes.

Therefore, it is impossible to derive liability for lashes from “You shall not testify,” and Ulla consequently expounded it from the verse “And it shall be, if the wicked person is liable to lashes.”

We learned in our Mishna: The Sages hold: [the case of] lashes [is judged] by three,

they said in the name of Rabbi Yishmael:

that the liability for lashes is judged

by twenty-three.

And the Gemara asks:

What is the reason of Rabbi Yishmael?

What is the reason that Rabbi Yishmael holds [that it is judged] by twenty-three?

And the Gemara answers:

Abaye said: It is derived

we learn a gzera shava

“wicked, wicked”

from those liable for capital penalties. It is written here

in the judgment concerning lashes [Deuteronomy 25]:

“And it shall be, if the wicked man

is deserving of lashes,” and it is written there

in the judgment concerning a murderer [Numbers 35]:

“who is wicked, deserving of death,”

and we learn: just as

there

in the judgment concerning a murderer

[it is judged] by twenty-three, so here

in the judgment concerning lashes

[it is judged] by twenty-three.

This is Abaye’s view, whereas—

Rava said:

The reason of Rabbi Yishmael is because

lashes stand in the place of death.

For one who transgressed the Creator’s warning is fit to die, and the Torah penalized him with death, while lashes are like one of the deaths prescribed by the Torah, such as stoning and burning. Therefore a court of twenty-three is required—as with a death imposed by the court.

Rav Aḥa, son of Rava, said to Rav Ashi: If so,

that lashes are death,

why do I need an assessment!?

Why do we need to assess [him] [to estimate by means of a physician] whether he can receive forty lashes, and if he cannot, the law is that he is given fewer than forty lashes—according to his ability!? But if lashes are death,

let us strike him,

let us strike him forty [times], even though he cannot withstand [them],

and if he dies,

and if he dies—

let him die,

let him die, for according to Rava’s words he is like one who is liable for death.

He said to him: The verse says,

in the law of lashes [Deuteronomy 25]:

“And your brother shall be degraded before your eyes.”

And we expound:

when you strike,

when you administer lashes,

you strike upon the back of a living person,

you must strike upon the back of a living person. And if he dies with fewer than forty, then they will have lashed a dead person. Therefore they assess him as to with how many lashes he is still a living person.

Rather, if so, that according to the essential law lashes stand in the place of death, and the assessment is because they are to lash a living person, this is difficult:

if this is what is meant,

as it was taught in a beraita: They assessed him as able to receive twenty

if the physicians assessed that he could receive twenty lashes,

they do not strike him

twenty,

but [give him] lashes that are fit to be divided into thirds

a number divisible by three, so that they can strike him one-third from the front and two-thirds from the back, as is the law of lashes, and we learn this from the exposition of the verse.

And how many are they? Eighteen

eighteen.