Sanhedrin 40b (מ:) — the Talmud in English

And

we ask:

Say

perhaps the verse does not intend that the witnesses be examined with seven interrogations under a single rule; rather,

one by one, as it is written!

For each type of offense, the witnesses are examined in the manner stated with regard to that offense: with regard to an idolatrous city, the witnesses are examined with three interrogations; with regard to idolatry, with two interrogations; and with regard to conspiring witnesses, with two interrogations.

For if so,

if the intent of the verse is that, with regard to each of these offenses, the witnesses must be examined with seven interrogations,

let the Merciful One write them in one place,

the entire number of interrogations should have been written in one place, and from there we would derive the rule for all cases involving capital punishment.

Rather, from the fact that the Torah divided the number of interrogations among three places, it follows that they were written that way intentionally.

And we answer:

Since all of them

all the passages

are written together

they are equated in their wording with regard to the requirement of derisha, as they are written in similar language in all the passages, it is evident that

they are derived from one another,

that each is learned from the others, so that what is stated with regard to one is applied to the others.

And since they are derived from one another,

since these verses are learned from one another, the matter is considered

as though it were written in one place,

as though all the verses had been written in a single place; and from this we learn that seven interrogations are required.

And we ask: How can the verses be learned from one another, so that what is stated with regard to each of the offenses is applied to all of them?

But

the three offenses—the idolatrous city, an individual who worships idolatry, and conspiring witnesses

are not comparable to one another—

they are not similar to one another, and one cannot learn from one and apply the interrogations stated with regard to it to the others!

(Mnemonic: The idolatrous city, idolatry, witnesses.)

The idolatrous city is not comparable to those other two

the idolatrous city is not comparable to conspiring witnesses and to an individual who worships idolatry, but is more severe than they are in one respect.

For

with regard to an idolatrous city, not only are its inhabitants punished, but all their property is also burned. Whereas

the property

of the conspiring witnesses and of the one who worships idolatry

is spared;

it is not prohibited and need not be destroyed. Since their law is less severe, it would follow that the examination of the witnesses who render them liable should likewise be more lenient.

This is not so with regard to an idolatrous city: Since its law is more severe than theirs, one cannot derive from them a leniency for the defendant and require additional interrogations of the witnesses who come to render an idolatrous city liable. Rather, it is sufficient to examine them with the interrogations stated with regard to it.

Idolatry is not comparable to those other two

the one who worships idolatry is not comparable to the idolatrous city and to conspiring witnesses, but is more severe than they are in one respect.

For

the inhabitants of an idolatrous city are put to death

by the sword,

which is a lenient form of execution. Likewise, we find that conspiring witnesses are liable only to a lenient form of execution when they testified that someone committed an offense whose punishment is a lenient form of execution. Since we find that in such a case they are liable to a lenient form of execution, one may say that the Torah did not make their law so severe as to require that the witnesses be examined thoroughly.

By contrast, one who worships idolatry is liable to stoning, which is a severe form of execution. Since his punishment is more severe, one cannot derive from the idolatrous city and conspiring witnesses a leniency with regard to the witnesses who render him liable and require that they undergo additional interrogations. Rather, it is sufficient to examine the witnesses with the interrogations stated with regard to him.

Conspiring witnesses are not comparable to those other two

conspiring witnesses are not comparable to one who worships idolatry and to an idolatrous city, but are more severe than they are in one respect.

For

one who worships idolatry and the inhabitants of an idolatrous city

require a warning

in order to become liable to execution. Since their law is less severe, it would follow that the examination of the witnesses who render them liable should be more lenient.

This is not so with regard to conspiring witnesses, who do not require a warning in order to render them liable, as it is stated [Deuteronomy 19:19]: “And you shall do to him as he intended to do.” They intended to have the defendant executed without a warning.

Since they are more severe than one who worships idolatry and than the inhabitants of an idolatrous city, one cannot derive from them a requirement that the witnesses who come to refute the witnesses undergo additional interrogations. Rather, it is sufficient to examine them with the interrogations stated with regard to them.

And we resolve the difficulty: We do not apply what is stated with regard to each of the verses to all of them merely because they are equated in their wording. Rather,

we derive one from the other through the phrase “thoroughly,” “thoroughly,”

from the fact that the examination of the witnesses is described with regard to each of these offenses using the expression “thoroughly.”

This derivation is based on the method of gzera shava, in which the laws written in the various passages containing the same expression are compared and learned from one another.

And this gzera shava

this one

is mufne

that is, the words from which the gzera shava is derived were written specifically for the purpose of this exposition. In such a case, one cannot challenge the derivation by noting that in one place we find a more severe law, and asking how its law can be equated with that of another place where the law is more lenient. For the Torah wrote these words specifically so that the gzera shava could be expounded from them, despite the distinctions between the two cases.

For if it were not mufne—

if the words “thoroughly,” from which the gzera shava is derived here, had not been written specifically for the purpose of the exposition—

there would be room to refute it,

one could challenge the gzera shava, as we challenged above, by noting that in each of the passages we find a particular law that is more severe than in the others.

Since the gzera shava is mufne, we equate all the passages despite this challenge.

But is it indeed mufne,

how is the word “thoroughly,” from which the gzera shava is derived here, superfluous and specially intended for this exposition?

From the fact that it could have written

with regard to conspiring witnesses

“and they shall investigate and examine,” but the verse changed its wording

and altered its expression

to “thoroughly”—

we may infer

from this change of wording that it was written

to be made available

for exposition; the wording of the verse was intentionally written for the gzera shava, so that the number of interrogations stated with regard to each of them would be applied to all of them.

Still,

it remains difficult, because the word “thoroughly,” from which the gzera shava is derived,

is mufne on one side only!

It is superfluous in only one place, and not in both of the verses from which the gzera shava is derived.

For

granted

with regard to

those other two

the two passages—with regard to an individual who worships idolatry and with regard to conspiring witnesses—the word “thoroughly”

is mufne, because it could have written

the language of examination, but in this place it wrote “thoroughly.” Thus, the change of wording is superfluous, to establish and expound a gzera shava from it despite the possibility of a challenge.

But

with regard to

the idolatrous city,

where it is written: “And you shall investigate, examine, and inquire thoroughly,”

what could it have written

in place of “thoroughly” that would have had the same meaning as “thoroughly,” whose meaning here is an additional interrogation in the count of interrogations?

All of them are already written,

for all the expressions of examination have already been written there, and it was impossible to write another word in place of “thoroughly”!

If so, in the passage concerning the idolatrous city, the word “thoroughly” is not superfluous and specially intended as the basis for a gzera shava. Since the gzera shava can be challenged by noting that the idolatrous city is more severe than an individual who worships idolatry and than conspiring witnesses in one respect, it should not be expounded.

And we answer:

There,

with regard to the idolatrous city,

also

the word “thoroughly”

is mufne

to derive a gzera shava from it.

Since it could have written

the verse should have written

“investigate, investigate,” or “examine, examine,” but the verse changed its wording

and altered its language

to “thoroughly”; we may infer

from the change of wording that it was written in this manner in order

to be made available

for the gzera shava exposition.

In summary: In all three passages—the idolatrous city, an individual who worships idolatry, and conspiring witnesses—the examination of the witnesses who render the defendant liable to execution contains the word “thoroughly.” It is superfluous and specially intended to serve as the basis for a gzera shava. Therefore, the gzera shava is expounded despite the possibility of a challenge, all three cases are equated, and what is written with regard to each is learned and applied to all of them—namely, seven interrogations.

There are four types of execution through which the court administers punishment for different offenses: a. execution by stoning; b. execution by burning; c. execution by the sword; d. execution by strangulation. Some are more severe and some are more lenient.

We have therefore learned through this gzera shava the obligation to investigate and examine the witnesses with seven interrogations in these offenses, one of which is punishable by stoning and one of which is punishable by execution by the sword. We derive by kal va-chomer that the same applies to the other offenses punishable by execution at the hands of the court.

And they derive those liable to strangulation,

and we learn that the witnesses who render the defendant liable to execution by strangulation must be investigated and examined with seven interrogations,

by a kal va-chomer from those liable to stoning

from idolatry, which is punishable by stoning,

and from those liable to execution

from conspiring witnesses, who are executed by the sword. With regard to these, we learned that the witnesses must be examined with seven interrogations, and without these interrogations the defendant is not executed on the basis of their testimony. All the more so, the same leniency applies to testimony concerning execution by strangulation, which is a more lenient form of execution than stoning and execution by the sword.

And they derive those liable to burning

and we learn that the witnesses who render the defendant liable to execution by burning must be investigated and examined with seven interrogations,

by a kal va-chomer from those liable to stoning

from idolatry, which is punishable by stoning. Since stoning is more severe than burning, and the Torah was lenient with regard to testimony concerning stoning by requiring that the witnesses be examined with seven interrogations, all the more so it is lenient with regard to testimony concerning burning, and the defendant is not rendered liable to burning unless the witnesses were examined with seven interrogations. [But one cannot derive by kal va-chomer from conspiring witnesses, who are executed by the sword, that the witnesses concerning those liable to burning must be examined, because execution by the sword is more lenient than execution by burning.]

And we ask concerning the kal va-chomer by which the requirement to examine witnesses concerning burning is derived from the requirement to examine witnesses concerning stoning:

This works well according to the Rabbis, who say that stoning is more severe

than burning. According to their view, the lenient law of burning can be derived by kal va-chomer from the more severe law of stoning, [since if the Torah was lenient in the more severe case, all the more so it is lenient in the lenient case].

But according to Rabbi Shimon, who says that burning is more severe, what can be said?

How can the more severe law of burning be derived from the more lenient law of stoning?

Rather, Rav Yehuda said:

Four additional interrogations are to be derived from the verses. With regard to an idolatrous city, it is written [Deuteronomy 13:15]: “And you shall investigate, examine, and inquire thoroughly.”

And behold,

one:

true;

two:

correct

the matter. Here are two additional interrogations. Likewise, with regard to an individual who worships idolatry, it is written [Deuteronomy 17:4]: “And you shall investigate thoroughly.”

And behold,

one:

true;

two:

correct

the matter. There are four additional interrogations in total, and together with the seven interrogations that we have already derived,

that makes eleven,

there are eleven interrogations here.

And we assign

seven

of them

—to the seven interrogations, remove three

additional expressions of examination that were written

for the gzera shava.

One remains for them

one superfluous expression of examination remains.

According to Rabbi Shimon

the superfluous interrogation is expounded

to include

and to derive from it the requirement concerning testimony about those liable to

burning,

for according to his view burning is a more severe form of execution than stoning, and it cannot be derived by kal va-chomer from the examination of witnesses concerning idolatry, which is punishable by stoning.

And

according to the Rabbis

who hold that stoning is more severe than burning, and that the law of examining testimony concerning burning can be derived by kal va-chomer from testimony concerning stoning, nevertheless they expound the superfluous interrogation to derive from it the requirement of examination in testimony concerning those liable to burning. For according to the Rabbis, even

a matter that is derived

a matter that is learned

by kal va-chomer, the verse took the trouble to write explicitly.

The Torah took the trouble to state it explicitly.

Rabbi Abbahu raises an objection:

How do we know that according to the Rabbis the superfluous interrogation is expounded to derive from it the requirement of examination in testimony concerning those liable to burning, even though it can be derived by kal va-chomer?

Say

perhaps the superfluous interrogation was written in order

to include

and derive from it that the witnesses must be examined with

eight interrogations!

And we answer:

And eight interrogations

are there?

Is there an additional interrogation concerning the time and place, through which the witnesses could be refuted based on their answer to that interrogation, such that the witnesses can be examined in addition to the seven interrogations?

Since there is no additional interrogation, Rabbi Yehuda therefore said that even according to the Rabbis, who hold that burning is more lenient than stoning, the superfluous expression of examination is expounded to derive the requirement of examining testimony concerning those liable to burning from testimony concerning stoning, even though it can be learned by kal va-chomer.

And we refute this:

Why, then,

why

did you not

find an additional interrogation that leads to refutation?

But there is one to include:

it is possible to conduct an additional interrogation concerning the time,

how much of the hour

that is, during which part of the hour the act took place.

And it was taught likewise,

and we find a beraita in accordance with Rabbi Abbahu’s statement:

They would examine him

the witness

with eight interrogations!

If so, this presents a difficulty to Rabbi Yehuda: Why do the Rabbis not derive from the superfluous expression of examination that the witnesses must be examined with eight interrogations?

And we resolve the statement of Rabbi Yehuda:

This works well

the eighth interrogation is possible only

according to Abaye in accordance with Rabbi Meir, who says that a person does not err at all, and also according to that version which says that a person errs somewhat—

it works well

to examine the witnesses with an eighth interrogation—during which part of the hour the act took place. This interrogation can lead to the witnesses being refuted, because if the witnesses say that the act took place during the first half or first third of the hour, and other witnesses come and say that during that part of the hour the witnesses were with them elsewhere, they are conspiring witnesses.

But according to Abaye in accordance with Rabbi Yehuda, who says that a person can err by half an hour, and according to Rava, who says that people make substantial errors—

what can be said?

If the witnesses are examined with an eighth interrogation concerning during which part of the hour the act took place, this interrogation cannot lead to their being refuted. For even if the witnesses say during which part of the hour the act took place, and other witnesses come to refute them by saying that during that part of the hour the witnesses were with them elsewhere, the witnesses can say that they erred by half an hour.

This presents a difficulty to Rabbi Abbahu: What is the eighth interrogation that can be derived from the superfluous interrogation?

And we answer:

Rather,

according to Rabbi Abbahu, the eighth interrogation that can

be included

and derived from the superfluous interrogation is:

How many

Sabbatical cycles

within the Jubilee

did the act take place?

And we reject this: This interrogation is not an additional interrogation beyond the seven, because

that is

the same as the interrogation

during which week

of the Jubilee did the act take place.

Rather,

according to Rabbi Abbahu, the eighth interrogation that can

be included

and derived from the superfluous interrogation is:

During which Jubilee

did the act take place?

But the other one

Rabbi Yehuda, who does not expound the superfluous interrogation to derive an eighth interrogation, holds as follows:

Since he said

the witness has already said

during which week

of the Jubilee the act took place,

he does not require

he need not examine him to determine

during which Jubilee

the act took place. The witnesses do not delay their testimony for an entire Jubilee, and it is certainly their intention to refer to the most recent Jubilee; they cannot subsequently explain that they intended the preceding Jubilee.

We learned in the Mishna:

Rabbi Yosei says:

The witnesses are examined only with three interrogations, and these are: a. On which day? b. At what hour? c. In what place?

It was taught

in a beraita:

Rabbi Yosei said to the Sages: According to your statement,

that you hold that the witnesses must be examined with seven interrogations,

does one who comes

to the court and testifies

and says: Yesterday

yesterday

they killed him,

does

the judge say to him

:

During which week

of the Jubilee?

Which year? Which month? On which day of the month?

There is no place for these interrogations. Rather, it is sufficient to examine the witnesses concerning the day, the hour, and the place.

They said to him:

The Sages: But according to your statement, is it not difficult? After all, also

according to your statement

it is difficult: Is it so that

one who came

to court and testified

and said, “They killed him just now,”

would the judge

say to him

the following:

“On which day? At what hour? In what place?”

For in this case as well, there is no room for the inquiries that you concede must be conducted with regard to the witnesses.

Rather,

the explanation is that

although it is not necessary

to question the witness with regard to these inquiries, nevertheless

we impose them upon him:

we pose these questions to him,

in accordance with the statement of Rabbi Shimon ben Elazar,

who said above: When the witnesses came to testify, the court would take them from room to room, saying to them, “We will not adjudicate in this room, but in the other room,” in order to confuse the witnesses, so that if they were lying, they would retract their testimony.

Here too,

so it is here:

although it is not necessary, we impose them upon him;

even though it is not necessary to question the witnesses with regard to all the inquiries, nevertheless they question them, in order to confuse them, so that if they are lying, they will retract their testimony,

in accordance with the statement of Rabbi Shimon ben Elazar.

And Rabbi Yosei,

why does he maintain that the witnesses are not questioned with regard to the inquiries concerning the Jubilee year, the year, the month, and the date in the month, but only with regard to the day, the hour, and the place?

Because he maintains that testimony in which witnesses come and say:

“Yesterday,”

yesterday,

“they killed him”—

is common in most testimonies;

therefore, the witnesses are not questioned with regard to the inquiries concerning the Jubilee year, the year, the month, and the date in the month, as these inquiries are superfluous in most testimonies .

Whereas testimony in which witnesses come and say:

“They killed him just now”—

is not common in most testimonies;

therefore, it is sufficient to question the witnesses with regard to the day, the hour, and the place, as these inquiries are necessary in most testimonies.

We learned in the Mishna: The witnesses are asked:

“Do you recognize him?”

That is, if they are witnesses in a murder case, they are asked whether they recognize the murdered person, lest he was a gentile.

The Sages taught

in a beraita: The witnesses are asked:

“Do you recognize him,

the murdered person? Did

a gentile kill him,

or did

a Jew kill him ?

him?”

Was

a warning given to him

the murderer?

Did

the murderer accept

the

warning,

saying: “I know that I am warned by the Torah not to perform this act”?

Did the murderer

make himself liable to execution?

That is, when you warned him, “Do not transgress this prohibition, for you will thereby incur the specified form of execution,” did he say: “I am doing it on that condition”?

For the halakha is that a person is not liable to execution by a court or to lashes unless he was warned at the time of the transgression; that is, they said to him: “Do not commit this transgression, for you will thereby incur execution by a court or lashes,” and he replied: “I know, and I am doing it on that condition” .

The witnesses are likewise asked whether

the murderer killed

the murdered person

within the time of speech

following the warning; that is, immediately upon the conclusion of the warning, before the amount of time it takes to say, “Peace be upon you, Rabbi,” had elapsed. This period is called proximate to the warning. But if he waited longer than the time of speech after the warning, there is concern that he may already have forgotten the warning .

If they testify concerning

one who worshipped idolatry,

the witnesses are asked:

“Which one did he worship?”

Which idol did he worship? Did he

worship Peor

or

worship Markulis?

“And by what manner did he worship it?”

By which type of worship did he worship it? Was it

by slaughtering or by offering incense,

incense,

by pouring a libation,

or

by prostration?

Ulla said: From where is the requirement of a warning derived from the Torah?

From where do we learn that a person is not liable to execution by a court or to lashes unless he was warned at the time of the transgression ?

As it is stated “And a man who takes his sister, the daughter of his father or the daughter of his mother, and sees her nakedness,

(Leviticus 20:17):

“And if a man takes his sister, his father’s daughter or his mother’s daughter, and sees her nakedness,

and she sees his nakedness—it is a disgrace, and they shall be cut off before the eyes of the members of their people” [Leviticus 20:17]—

Is the matter dependent upon seeing?

Are they liable to karet because of seeing? Surely they become liable to karet because of the act of transgression.

Rather,

they expound that the intention of the verse is that he is not liable

until they show him the reason for the matter,

that they warn him and clarify to him the reason for the prohibition: that she is forbidden to him because she is his close relative.

And although this verse is stated with regard to liability for karet, and karet is a punishment at the hands of Heaven, for which a warning is not required in order to incur a punishment at the hands of Heaven.