Sanhedrin 40b — the Talmud in English

And

we raise an objection:

say:

perhaps the intention of the verse is not that they should investigate the witnesses with seven investigations in one law, but rather

one by one, as it is written!

For each type of transgression, they should investigate the witnesses as it is stated concerning that transgression: concerning an apostate city, they should investigate the witnesses with three investigations; concerning idolatry, two investigations; and concerning conspiring witnesses, two investigations.

For if so,

if the intention of the verse is that concerning each one of the transgressions it is necessary to investigate the witnesses with seven investigations,

the Merciful One should have written them in one place,

it should have written the entire number of investigations in one place, and from there we would have learned it for all capital cases.

Rather, from the fact that the Torah divided the number of investigations among three places, it follows that they were written so specifically.

And we answer:

Since all of them,

all the places,

are written together,

since in their writing they were made alike with regard to the law of “investigation,” being written in all the places in similar language, it is evident that

they learn from one another,

learning from one another, to apply what is stated concerning one to the other.

And since they learn from one another,

since the verses learn from one another, the matter is considered

as though it were written in one place,

as though all the verses had been written in one place, and from this we learn that seven investigations are required.

And we object: How do they learn the verses from one another, applying what is stated concerning each one of the transgressions to all of them?

But

the three transgressions [an apostate city, an individual who worships idolatry, and conspiring witnesses]

are not similar to one another—

they are not similar to one another, and one cannot learn and apply the investigations stated concerning one to the others!

An apostate city is not similar to those other two—

an apostate city is not similar to conspiring witnesses and to an individual who worships idolatry; rather, it is more stringent than they are in one respect.

For

in an apostate city, not only are they punished, but they also burn all their property. Whereas

their property

of the conspiring witnesses and of the one who worships idolatry

escapes,

it is not forbidden and need not be destroyed; and since their law is more lenient, it is logical that one should be lenient concerning the accused, by thoroughly interrogating the witnesses who make him liable.

This is not so with an apostate city: since it is more stringent than they are, one cannot learn from them to be lenient with the accused and require the witnesses who come to make an apostate city liable to undergo additional investigations; rather, it is sufficient if we investigate them with the investigations stated concerning it.

Idolatry is not similar to those other two—

one who worships idolatry is not similar to an apostate city and to conspiring witnesses; rather, he is more stringent than they are in one respect.

For

the law of an apostate city is that they are to die

by the sword,

which is a lenient death; and likewise, we find that conspiring witnesses are liable only to a lenient death when they testified concerning someone who transgressed a transgression whose punishment is a lenient death. Since we find that they are liable to a lenient death, one may say that in this manner the Torah was not stringent with them, to put them to death until the witnesses have been thoroughly investigated.

Whereas one who worships idolatry is liable to stoning, which is a stringent death; and since his punishment is more stringent, one cannot learn from an apostate city and conspiring witnesses to be lenient concerning the witnesses who make him liable, and to investigate them with additional investigations. Rather, it is sufficient if we investigate the witnesses with the investigations stated concerning him.

Conspiring witnesses are not similar to those other two—

conspiring witnesses are not similar to one who worships idolatry and to an apostate city; rather, they are more stringent than they are in one respect.

For

one who worships idolatry and an apostate city

require warning

in order to become liable to death; and since their law is lenient, it is logical that one should be lenient by thoroughly interrogating the witnesses who make them liable.

This is not so with conspiring witnesses, who do not require warning in order to make them liable, as it is stated [Deuteronomy 19:19]: “And you shall do to him as he plotted”—and they intended to kill the accused without warning.

And since they are more stringent than one who worships idolatry and than an apostate city, one cannot learn from them to require the witnesses who come to refute the witnesses to undergo additional investigations; rather, it is sufficient if we investigate them with the investigations stated concerning them.

And we answer: We do not learn to apply what is stated concerning each one of the verses to all of them merely because they were made alike in their wording, but rather

from “thoroughly” and “thoroughly” they learn from one another,

from the fact that concerning the investigation of the witnesses, the expression “thoroughly” is written with regard to each of the transgressions.

And this learning is by the principle of gzera shava: the laws written in each of the places that contain the same expression are compared, and they are learned from one another.

And this gzera shava

this one

is mufneh.

That is, those words from which the gzera shava is expounded were written specifically for the purpose of the exposition. In this manner, one cannot challenge the learning of the gzera shava from the fact that in one place we find that its law is more stringent, and ask how we can compare its law to another place whose law is more lenient. For the Torah specifically wrote these words so that we would expound the gzera shava through them, despite the distinctions between the two places.

For if it were not mufneh—

if the words “thoroughly,” from which the gzera shava is expounded here, were not written specifically for the exposition,

there would be grounds to refute it,

one could challenge the gzera shava, as we challenged above that in each of the places we find a certain law more stringent than in the other places.

And since the gzera shava is mufneh, we expound it to compare all the places despite the refutation.

Indeed, it is mufneh,

how is the word “thoroughly,” from which the gzera shava is expounded here, superfluous and specifically set aside for the exposition?

From the fact that it should have written

from the fact that concerning conspiring witnesses it should have written

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

and the verse changed its wording

to “thoroughly”— \-

infer from it

from the change of wording that it was written

to set it aside

for exposition; and the essence of the verse was written specifically for the gzera shava, to apply the number of investigations written concerning each of them to all of them.

And still,

it is still difficult, for the word “thoroughly,” from which the gzera shava is expounded,

is mufneh on one side only!

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

For

granted

concerning

those other two

the two places—concerning an individual who worships idolatry and concerning conspiring witnesses—the word “thoroughly”

is mufneh, because it should have written

an expression of investigation, but instead “thoroughly” was written; therefore, the change of wording is superfluous, in order to compare it and expound a gzera shava through it, despite the refutation.

But

concerning

an apostate city,

in which it is written, “and you shall investigate and examine thoroughly,”

what should it have written

in place of “thoroughly,” which would have a meaning like “thoroughly,” whose meaning is an additional investigation in the number of investigations?

They are all already written,

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

If so, in the case of an apostate city, the word “thoroughly” is not superfluous and specifically set aside to expound a gzera shava from it; and since there is a refutation of the gzera shava—that an apostate city is more stringent in a certain law than an individual who worships idolatry and conspiring witnesses—we should not expound a gzera shava through it.

And we answer:

There,

in the case of an apostate city,

also, the word “thoroughly”

the word “thoroughly”

is mufneh

to expound a gzera shava from it,

from the fact that it should have written

that the verse should have written

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

and the verse changed its wording

to “thoroughly”; infer from it

from the change of wording that it was written thus in order

to set it aside

to designate it for the exposition of the gzera shava.

In summary: in all three places—an apostate city, an individual who worships idolatry, and conspiring witnesses—the word “thoroughly” appears concerning the investigation of the witnesses who make the accused liable to death, in a manner that makes it superfluous and specifically set aside in order to expound a gzera shava through it. Therefore, we expound the gzera shava despite the refutation against it, compare all of them, and learn from one to all of them, applying the number of investigations written concerning each of them to all of them—that is, seven investigations.

There are four types of death by which the court punishes for various transgressions: a. death by stoning; b. death by burning; c. death by execution with the sword; d. death by strangulation. Some of them are more stringent and some more lenient.

We have therefore learned through this gzera shava the obligation to investigate and examine the witnesses with seven investigations in these transgressions, one of which has stoning as its punishment and one of which has execution with the sword as its punishment. And we learn by kal va-chomer for the other those liable to deaths imposed by the court.

And those liable to strangulation come,

and we learn that it is necessary to investigate and examine with seven investigations the witnesses who make the accused liable to death by strangulation,

by a kal va-chomer from those liable to stoning

from idolatry, which is punishable by stoning,

and from those executed

from conspiring witnesses, who are executed by the sword, concerning whom we learned that it is necessary to investigate the witnesses with seven investigations, and without the investigations the accused is not put to death on the basis of the witnesses; all the more so that this leniency should apply concerning testimony about death by strangulation, which is more lenient than stoning and the sword.

And those liable to burning come

and we learn that it is necessary to investigate and examine with seven investigations the witnesses who make the accused liable to death by burning,

by a kal va-chomer from those liable to stoning

from idolatry, which is punishable by stoning, since stoning is more stringent than burning; and if the Torah was lenient concerning testimony about stoning, requiring the witnesses to be investigated with seven investigations, all the more so should it be lenient concerning testimony about burning, and not make the accused liable to burning unless they investigated the witnesses with seven investigations. [But from conspiring witnesses, who are executed by the sword, it is impossible to learn by kal va-chomer for those liable to burning, because death by the sword is more lenient than death by burning].

And we object concerning the kal va-chomer through which the law of investigating witnesses concerning burning is learned from investigating witnesses concerning stoning:

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

than burning; according to their view, one can learn the lenient case of burning by kal va-chomer from the stringent case of stoning, [for just as they were lenient in the stringent case, all the more so should they be lenient in the lenient case],

but according to Rabbi Shimon, who says that burning is more stringent, what is there to say?

How can the stringent case of burning be learned from the lenient case of stoning?

Rather, Rav Yehuda said:

One should expound four additional investigations from the verses. For concerning an apostate city it is written [Deuteronomy 13:15]: “And you shall investigate and examine and inquire thoroughly

and behold,

a.

true,

b.

correct

is the matter”; here are two additional investigations. And likewise concerning an individual who worships idolatry it is written [Deuteronomy 17:4]: “And you shall investigate thoroughly

and behold,

a.

true,

b.

correct

is the matter.” In total there are four additional investigations, and together with the seven investigations that we already expounded,

there are eleven.

there are eleven interrogations here.

And we expound

seven

of them—

for the seven investigations; remove three,

three additional expressions of investigation were written

for the gzera shava.

One remains,

one superfluous expression of investigation remains.

According to Rabbi Shimon—

they expound the additional investigation

to bring in,

to learn from it concerning testimony about

those liable to burning,

for according to his opinion burning is a death more stringent than stoning, and it is impossible to learn it by kal va-chomer from the investigation of witnesses concerning idolatry, which is punishable by stoning.

And also

according to the Rabbis,

who hold that stoning is more stringent than burning, and it is possible to learn the law of investigating testimony concerning burning from testimony concerning stoning by kal va-chomer, nevertheless they expound the additional investigation to learn from it the law of investigation concerning testimony about those liable to burning, because according to the Rabbis, even

a matter that comes

a matter that is learned

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

the Torah took the trouble to state it explicitly.

Rabbi Abbahu scoffs at this:

From where do we know that according to the Rabbis they expound the additional investigation to learn from it the law of investigation concerning testimony about those liable to burning, even though it can be learned by kal va-chomer?

Say

perhaps the additional investigation was written in order

to bring in

to learn from it that the witnesses must be investigated

with eight investigations!

And we answer:

And eight investigations—

are there such a thing?

Is there an additional investigation concerning the time and the place [through which they could refute the witnesses by the answer they give to that investigation], so that the witnesses can be investigated beyond the seven investigations?

And since there is no additional investigation, Rabbi Yehuda therefore said that even according to the Rabbis, who say that burning is more lenient than stoning, they expound the superfluous expression of investigation to learn the law of investigating testimony concerning those liable to burning from testimony concerning stoning, even though it is learned by kal va-chomer.

And we refute:

Why

why

did you not

find an additional investigation that leads to refutation?

But there is something to bring in

for it is possible to investigate an additional investigation concerning the time,

at what part of the hour—

during which part of the hour the act occurred.

And it was likewise taught in a beraita,

and we find a beraita in accordance with the words of Rabbi Abbahu:

They would investigate him [

the witness]

with eight investigations!

If so, this presents a difficulty to Rabbi Yehuda: Why do the Rabbis not learn from the superfluous expression of investigation that the witnesses must be investigated with eight investigations?

And we resolve the words of Rabbi Yehuda:

This works

the eighth investigation is possible only

for Abaye according to 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—

properly

the witnesses can be investigated with an eighth investigation—during which part of the hour the act occurred—and through this investigation one brings the witnesses to refutation. For if the witnesses say that they were during the middle or the first third of the hour, and witnesses come and say that during this part of the hour the witnesses were with them elsewhere, they are conspiring witnesses.

But for Abaye according to Rabbi Yehuda, who says that a person errs by half an hour, and for Rava, who says that people err greatly—

what is there to say?

For if we investigate the witnesses with an eighth investigation—during which part of the hour the act occurred—we will not be able to bring them to refutation through this investigation. For even if the witnesses say during which part of the hour the act occurred, and witnesses come to refute them, 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 is difficult for Rabbi Abbahu: What is the eighth investigation that can be learned from the additional investigation?

And we answer:

Rather,

according to Rabbi Abbahu, the eighth investigation that can be

brought in

to be learned from the additional investigation is

how many

Sabbatical cycles

in the Jubilee

the act occurred.

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

that is

the investigation

in which week

of the Jubilee the act occurred.

Rather,

according to Rabbi Abbahu, the eighth investigation that can be

brought in

to be learned from the additional investigation is

in which Jubilee

the act occurred.

And the other one—

and Rabbi Yehuda, who does not expound the additional investigation to learn from it an eighth investigation, holds:

since he has already said

the witness has already said

in which week

of the Jubilee the act occurred,

he does not require

it is not necessary to investigate him

in which Jubilee

the act occurred, since the witnesses do not delay their testimony for an entire Jubilee, and certainly their intention is the most recent Jubilee; and afterward they cannot explain their words by saying that their intention was the previous Jubilee.

We learned in the Mishna:

Rabbi Yose says:

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

It was taught

in a beraita:

Rabbi Yose said to the Sages: “According to your words,

that you hold that the witnesses must be investigated with seven investigations, is it so that

one who comes

to the court and testifies

and says: “Yesterday

yesterday

they killed him,”

is it so that

he says to him

the judge:

“In which week

of the Jubilee

? In which year? In which month? On which day of the month?”

For there is no place for these investigations; rather, it is sufficient that they investigate the witnesses concerning the day , the hour, and the place.

The Sages said to him:

And according to your words, is it not difficult? For also

according to your words

it is difficult: Is it so that

one who came

to the court and testified

and said, “Now they killed him,”

would the

judge say to him:

:

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

For in this manner as well there is no place for the interrogations which you admit must be conducted with the witnesses.

Rather,

the answer to this is that

even though it is not necessary

to interrogate the witness with these interrogations, nevertheless

we impose them upon him—

we put these questions to him—

in accordance with Rabbi Shimon ben Elazar,

who said above: The court would transfer the witnesses from room to room when they came to testify, and they would say to them: “We shall not judge in this room, but rather in the other room,” so that the witnesses’ minds would become confused, and if they were lying, they would retract.

Here too,

so it is also here,

even though it is not necessary, we impose them upon him—

even though it is not necessary to interrogate the witnesses with all the interrogations, nevertheless they interrogate them, so that their minds will become confused, and if they are lying, they will retract—

in accordance with Rabbi Shimon ben Elazar.

And Rabbi Yose,

why does he hold that the witnesses are not interrogated with the interrogations concerning the Jubilee, the year, the month, and the date in the month, but only concerning the day, the hour, and the place?

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

“Yesterday,”

yesterday,

“they killed him”—

is common in most testimonies;

therefore the witnesses are not interrogated with the interrogations concerning the Jubilee, the year, the month, and the date in the month, since these interrogations are superfluous in most testimonies .

But testimony in which witnesses come and say:

“Now they killed him”—

is not common in most testimonies;

therefore it is sufficient if they interrogate the witnesses concerning the day, the hour, and the place, since these interrogations are necessary in most testimonies.

We learned in the Mishna: The witnesses are asked:

“Do you know him?”

That is, if they are witnesses concerning a murderer, they ask them whether they know the murdered man, lest he was a gentile.

The Sages taught

in a beraita: The witnesses are asked:

“Do you know him,

the murdered man? Did

a gentile kill

or

did an Israelite kill ?

him?”

“Did

you warn him

the murderer?

“Did

he accept upon himself

the murderer

the warning,

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

“Did the murderer

permit himself to death?

For when you warned him: ‘Do not transgress this prohibition, for you are liable to a particular death for it,’ he said: ‘I am doing it on that condition’?

For the halakha is that a person is not liable to a court-imposed death or lashes unless they warned him at the time of the transgression—that is, they said to him: ‘Do not commit this transgression, for you are liable to a court-imposed death or lashes for it,’ and he replied: ‘I know, and I am doing it on that condition’ .

And likewise the witnesses are asked whether

the murderer killed

the murdered man

within the time of speech

from the warning—that is, immediately upon the conclusion of the warning, before the amount of time required to say, “Greetings to you, my master and teacher,” had elapsed; for this period of time is called proximate to the warning. But if he waited after the warning longer than the time of speech, there is concern that perhaps he had already forgotten the warning .

If they testify concerning

one who worshipped idolatry,

the witnesses are asked:

“Whom did he worship?”

Which idol did he worship? Did he

worship Peor

or

worship Markulis?

“And with what did he worship?”

With which type of worship did he worship? Did he worship

by slaughtering or by burning incense,

incense,

by pouring,

or

by bowing down?

Ulla said: From where is warning [derived] from the Torah,

from where do we learn that a person is not liable to a court-imposed death or lashes unless they warned him at the time of the transgression ,

as it is stated

[Leviticus 20:17]:

“And a man who takes his sister, the daughter of his father or the daughter of his mother, 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”

—is the matter dependent upon seeing?

Is it through seeing that they become liable to karet? Surely they become liable to karet through the act of the transgression.

Rather,

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

until they show him the reason of the matter,

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

And even though this verse was stated concerning liability for death by karet, and karet is a punishment at the hands of Heaven, for which warning is not necessary in order to become liable to a punishment at the hands of Heaven.