Sanhedrin 41a (מא.) — the Talmud in English

It must be expounded and said that

if

this teaching

does not concern karet

apply it

to the requirement of a warning

for lashes, which is a punishment applicable in the case of one’s sister.

which is a punishment that applies in the case of one’s sister.

The school of Hezekiah taught

that the law of a warning is to be learned from elsewhere, as it is stated [Exodus 21:14]: “But if a man acts intentionally against his fellow to kill him by cunning”

“he shall die.”

It is difficult: From where do we know that he acted intentionally? Rather, it certainly refers to a case

where they warned him, and he nevertheless acted intentionally.

The school of Rabbi Yishmael taught

that the law of a warning is to be learned from elsewhere, as it is stated [Numbers 15:33]: “And those who found him gathering wood”

“brought him.” -

It does not say, “who gathered wood,” but rather, “gathering wood,” meaning that they saw him and found him, and after they found him he was gathering wood. And why must the verse be phrased in this manner? Rather, the verse comes to inform us

that they warned him, and he was still

gathering

wood

after they warned him.

The school of Rabbi taught

that the law of a warning is to be learned from elsewhere, as it is stated concerning one who has relations with a betrothed young woman [Deuteronomy 22:24]: “You shall bring them both out to the gate of that city, and stone them with stones, and they shall die: the young woman, because she did not cry out in the city, and the man”

“because he violated”

his fellow’s wife. The word “matter” is superfluous and is intended for exposition, because they are executed

for matters of speech

for which they were warned.

And it is necessary—

we require all the expositions through which the requirement of a warning is derived.

For had the Merciful One written

only the exposition concerning the forbidden relations of

one’s sister,

that a warning is required in order to become liable to lashes,

I would have said:

only

those liable to lashes

do

require a warning in order to become liable, but

those liable to execution,

who incur the more severe punishment,

do not

require a warning in order to become liable. Therefore

the Merciful One wrote

the exposition concerning those liable to execution as well, to expound

“if he acts intentionally”

as establishing the requirement of a warning.

And had the Merciful One written

only the exposition of

“But if a man acts intentionally”

concerning a murderer, establishing the requirement of a warning,

I would have said—

we would have thought that

this applies

only where a warning is required in a case involving a relatively lenient form of execution, such as a murderer who is liable to execution by

the sword, which is lenient,

a relatively lenient form of execution,

but

those liable to execution by

stoning, which is more severe, I would say

that

do not

require a warning in order to become liable to it. Therefore

it is necessary

to write all the expositions establishing the requirement of a warning.

And as for the two verses concerning those executed by stoning—

the fact that the Torah wrote two expositions establishing the requirement of a warning concerning those liable to execution by stoning, both concerning the one who gathers wood and concerning the betrothed young woman—

why do I need them?

According to Rabbi Shimon—

the additional exposition comes

to include those executed by burning,

to include those liable to execution by burning, which in his view is a more severe form of execution than stoning and cannot be derived from those liable to execution by stoning, the more lenient form. Therefore the Torah wrote an additional exposition concerning those liable to stoning, so that we may apply it to those liable to the more severe execution by burning, since the exposition is not necessary for its own context.

But

according to the Rabbis,

who maintain that execution by burning is less severe than execution by stoning, and that those liable to execution by burning can be derived by a kal va-chomer from those liable to execution by stoning, who require a warning,

they maintain that even

a matter that can be derived

is a matter learned

by a kal va-chomer, yet Scripture took the trouble to write it

explicitly.

And we challenge this: Why did the Torah write the expositions establishing the requirement of a warning concerning lashes and execution by the sword?

Let the Merciful One write

only the exposition

concerning those executed by stoning, and let these other cases be brought and derived from it!

Let the requirement of a warning in these punishments be derived by a kal va-chomer.

And we answer:

Here too,

these expositions concerning lashes and execution by the sword were written even though they could be derived by a kal va-chomer from those liable to execution by stoning, because

a matter that can be derived

is a matter learned

by a kal va-chomer, yet Scripture took the trouble to write it

so that we would expound it explicitly.

We learned in the baraita above that the witnesses are asked: Did the murderer

make himself liable to execution?

When you warned him, saying: Do not transgress this prohibition, for you will become liable to this particular execution, did he say: I am committing the act with that intention?

From where do we know

that the accused is liable to execution only if he made himself liable to execution?

Rava said, and some say it was Hezekiah: The verse states [Deuteronomy 17]: “By the mouth of two witnesses or three witnesses

“

shall the dead man be put to death.”

But he is still not dead. Rather, this indicates that he is already regarded as dead before he comes before the court, and this is because with his own mouth he made himself liable to execution. From here we derive that he is not liable to execution

until he makes himself liable

with his own mouth

to execution,

and says: I am committing the act with that intention.

Rav Hanan said: With regard to the witnesses concerning a betrothed young woman,

who testified that a betrothed young woman had committed adultery and was liable to execution,

who were proven conspiring witnesses

and became liable under the law “you shall do to him as he intended to do to his brother”:

they are not executed, because

on account of

the fact that they can say:

We came only

to prohibit her to her husband,

and not so that she would be executed on the basis of our testimony, and since they did not intend to have her executed, they are not liable to execution.

And we challenge this: How can their claim that they did not intend to have her executed be accepted?

But they warned her!

The witnesses warned her, and therefore through their testimony she became liable to execution because they had warned her.

And we answer: It is referring to a case

where they did not warn her.

And if they did not warn her—

how could she be executed?

How could she have been executed on the basis of their testimony? And if in fact she would not have been executed on the basis of their testimony, there is no novelty in the fact that the witnesses are not executed, since the verse states “as he intended,” and the witnesses are not liable to a punishment greater than the one they intended to impose on the accused through their testimony.

And we answer: It is referring to witnesses who testified

about a learned woman,

who knows the halakhot and does not require a warning. Therefore she would have been executed on the basis of their testimony. Nevertheless, since the witnesses did not warn her, they can claim that they did not intend to have her executed through their testimony, but only to prohibit her to her husband.

But when the witnesses said in their testimony that they had warned her, since the law of a warning applies only with regard to liability to execution, they can no longer claim that they did not intend to have her executed through their testimony.

And this halakha—that a learned person who is well versed in the halakhot does not require a warning in order to become liable to lashes or execution—is

in accordance with the view of Rabbi Yosei, son of Rabbi Yehuda.

As it was taught

in a baraita:

Rabbi Yosei, son of Rabbi Yehuda, says: A learned person

does not require a warning, because a warning was given only to distinguish between an unintentional act and an intentional one,

and the learned person knows this himself without being warned.

And we challenge this: How could they accept the testimony of witnesses testifying that the betrothed young woman had committed adultery without having warned her, so that she would be executed on the basis of their testimony?

And since they are not executed,

meaning that they are not executed if they are found to be conspiring witnesses,

how could she be executed?

How could she be executed on the basis of the testimony?

It would be

that this is

testimony that you cannot refute,

as it is impossible to do to the witnesses what the testimony requires be done to the accused.

And any testimony that you cannot refute—

is not called testimony!

Here too,

in fact, she is not executed on the basis of their testimony, because the testimony cannot be refuted in a manner that would render them liable to execution on its basis.

And this is what

said

Rav Hanan:

Because they are not executed, since they can say

that they came only

to prohibit her to her husband

and did not intend to have her executed,

she too is not executed

on the basis of their testimony,

as it would be

that this is

testimony that you cannot refute.

And we challenge this:

But with regard to a learned woman, concerning whom we maintain

that she is executed in accordance with the view of Rabbi Yosei, son of Rabbi Yehuda, how can this be found?

How can it be possible, according to Rabbi Yosei, for witnesses to testify concerning a learned woman that she committed adultery and become liable to execution on the basis of their testimony? In every such case, it would be testimony that cannot be refuted.

And we answer: There is a case in which she becomes liable to execution on the basis of their testimony, for example,

when she committed adultery and then committed adultery again,

as the witnesses testifying about the second act of adultery cannot say that they came only to prohibit her to her husband, since she had already become prohibited to her husband through the first act of adultery. Therefore, they came through their testimony only to have her executed.

And we refute this:

But they can say:

We came only

to prohibit her to

her second paramour,

to testify that she had committed adultery, since we learned in tractate Sota [26b] from the two occurrences of the term “and she became impure” that just as she becomes prohibited to her husband, so too she becomes prohibited to her paramour. Therefore, through the second act of adultery she became prohibited to the second paramour, and the witnesses can claim that they came to testify for that purpose, and they would not become liable to execution if they were found to be conspiring witnesses. And since this is so, she too would not be executed on the basis of their testimony, since the testimony does not render the witnesses liable to execution if they are found to be conspiring witnesses.

And we answer: The case in which she becomes liable to execution on the basis of their testimony is when they testify

that she committed adultery

a second time

with her first paramour,

to whom she had already become prohibited through the first act of adultery;

alternatively, that she committed adultery

a second time

with one of her relatives,

to whom she was already prohibited as a forbidden relation. In such a case, the witnesses cannot claim that they came to testify in order to prohibit her to her husband or to her paramour, since she was already prohibited to them. Therefore, through their testimony they came only to have her executed, and if they are found to be conspiring witnesses, they are executed; she too is executed on the basis of their testimony.

What is different about a betrothed young woman that he mentions her?

Why did Rav Hanan mention the case in which they testified concerning a betrothed young woman who had committed adultery?

Even in the case of a married woman as well!

The same law should apply: If they testified concerning her that she had committed adultery, the conspiring witnesses are not executed, since they can claim that they came only to testify in order to prohibit her to her husband, and did not testify so that she would be executed on the basis of their testimony.

Yes—

the same law indeed applies to a married woman;

rather,

the reason Rav Hanan stated this halakha with regard to a betrothed young woman was to teach that

even this one who has not yet sat

under him,

since even this woman, who had not yet lived with her husband but was only betrothed to him, might be thought not to have been considered by the witnesses as one whom they could prohibit to him, since they would not see her living with him, nevertheless

the witnesses can

say

that

they came only

to prohibit her to her husband

to testify.

Rav Hisda said:

If one witness

says, “He killed him with a sword,”

the murderer,

and another

of the witnesses

says

that he killed him

with an ariran,

a spear used for stabbing,

he killed him,

the murderer—

this is not correct:

the statements of the witnesses do not correspond, their testimony is invalid, and the accused and the witnesses are immediately exempt, since their testimony is found to contradict itself.

But if one witness

says, “His garments”—

the murderer’s clothes were

black, and another

of the witnesses

says

that

his garments

—the murderer’s clothes—were

white—

this is correct,

and their testimony is accepted, since their statements are not found to contradict one another regarding the substance of the testimony, but only concerning a peripheral matter unrelated to its substance.

A challenge is raised

from a baraita that we learned: What is testimony that is

correct?

That it be correct—

that the statements of the witnesses correspond.

And the baraita provides an example: For example, if one witness

says: “He killed him with a sword,”

the murderer,

and another

of the witnesses

says

that he killed him

with an ariran,

a spear used for stabbing,

he killed him,

the murderer. Or if one witness

says: “His garments”—

the murderer’s clothes were

black, and another

of the witnesses

says: “His garments”—

the murderer’s clothes were

white—

this is not correct!

The statements of the witnesses do not correspond, and their testimony is invalid.

It is explained in the baraita that even when the statements of the witnesses are not found to contradict one another regarding the substance of the testimony, but only regarding a peripheral matter unrelated to its substance, their testimony is invalid.

Rav Hisda interpreted it

as meaning that the baraita refers to a contradiction in the murderer’s clothing, specifically

the cloth with which they strangled him,

which is part of the substance of the testimony: The witnesses testified that the murderer strangled his fellow with his garment, and one of the witnesses testified that it was black, while the other testified that it was white.

That is,

it is like the first case brought in the baraita, in which their statements were found to contradict one another concerning

the sword and the ariran

with which the murderer killed him, which are part of the substance of the testimony. Therefore, when their statements are found to contradict one another, their testimony is invalid.

Come and hear

a challenge from a baraita in which we find that even when the statements of the witnesses contradict one another in details that are not part of the substance of the testimony, their testimony is invalid. We learned: If one witness

says, “His shoes”

of the murderer were

black, and another says, “His shoes”

were

white—

this is not correct!

Their statements do not correspond, and their testimony is invalid.

And we reject this:

There, too,

the reference is to an element of the testimony itself,

for example,

that they testified

that he kicked him with his sandal and killed him,

and if so, the sandal is an element of the testimony itself. Therefore, if the witnesses’ statements contradicted one another regarding the color of the sandal, their testimony would be invalid.

Ta shma

to raise a difficulty from what we learned in our Mishna:

It once happened that ben Zakkai examined

the witnesses

regarding the stalks of a fig,

that is, the ends by which the figs were attached to the tree—whether they were thick or thin, whether they were long or short, and the like. The stalks of the fig are not an element of the testimony itself, for he did not murder the victim with the stalks of the fig. Nevertheless, if the witnesses’ statements contradicted one another, ben Zakkai disqualified them, even though this was not an element of the testimony itself.

Rami bar Ḥama said:

It is referring

for example,

to witnesses who testified

that he plucked a fig on Shabbat, and he was killed over that,

meaning that the witnesses sought to have him executed because he had violated the labor of detaching [harvesting] on Shabbat.

And we raise a difficulty: How can this be the interpretation of the beraita,

but it was taught

in a beraita:

They said to him,

the witnesses,

“He killed him beneath a fig tree!”

And it was on the basis of this testimony that ben Zakkai examined the witnesses regarding the stalks of the fig.

Rather, Rami bar Ḥama said:

It is referring

for example,

to witnesses who testified

that he impaled him with a branch of a fig tree,

meaning that he took a branch from a fig tree, sharpened it, and killed him by stabbing him with it. If so, the examinations conducted by ben Zakkai regarding the type of stalk of the fig were examinations relating to an element of the testimony itself.

Ta shma

to raise a difficulty from what we learned:

He said to them,

Rabban Yohanan ben Zakkai said to the witnesses,

“This fig tree—

were

its stalks thin,

or perhaps

were its stalks thick?

Were

the figs black,

or were they

white figs?”

And necessarily, it is impossible to interpret this as meaning that he murdered the victim with the figs themselves, for figs are soft. Rather, it is certainly the case that he examined the witnesses even regarding matters that were not an element of the testimony itself, and if their statements contradicted one another, he disqualified them.

Rather, Rav Yosef said: “Are you bringing an objection from ben Zakkai?”

Can one really raise a difficulty from the statements of ben Zakkai?

Ben Zakkai is different,

for the approach of ben Zakkai is different:

he considers examinations equivalent to interrogations,

for just as during interrogations, if the witnesses contradict one another even regarding matters unrelated to the substance of the testimony—for example, one says that the incident took place in a certain location and the other says that it took place in another location, although the location is not an element of the testimony, since the victim was not killed by the location—and nevertheless, if they are contradicted on this point, their testimony is invalid, so too with regard to examinations. Ben Zakkai maintains that if they are contradicted during the examinations, even regarding matters that are not an element of the testimony, their testimony is invalid.

And Rav Ḥisda did not state his words in accordance with the view of ben Zakkai, but in accordance with the view of the other tanna’im who disagree with him.

Who

is this

ben Zakkai?

If you say

that this is

Rabbi Yohanan ben Zakkai, -

it is difficult:

Was he present in the Sanhedrin?

Was he alive during the period of the Sanhedrin, when they judged capital cases?

But it was taught

in a beraita:

All the years of Rabbi Yohanan ben Zakkai’s life totaled one hundred twenty years.

For forty years

of the first part of his life,

he engaged in commerce,

in business.

For forty years

of the middle part of his life,

he studied

Torah.

For forty years

of the final part of his life,

he taught

and became a judge and one who issued halakhic rulings.

And it was taught

in a beraita:

Forty years before the destruction of

the Temple, the Sanhedrin went into exile and sat in the place called the Shops,

which was a place in Jerusalem which was called “the Shops.”

And Rabbi Yitzhak bar Avudimi said:

The reason that the Sanhedrin went into exile from the Chamber of Hewn Stone to “the Shops” was

to indicate that they no longer judged monetary penalty cases.

And we inquire about this: Is it possible that the reference is to

monetary penalty cases?

Was it necessary for the Sanhedrin to sit in the Chamber of Hewn Stone in order to judge monetary penalty cases?

Rather,

the intention is

to indicate that they no longer judged capital cases,

for capital cases may be judged only when the Sanhedrin is located in the Chamber of Hewn Stone, as it is stated [Deuteronomy 17:8]: “And you shall arise and ascend to the place.” This teaches that the place enables capital cases to be judged. And once the Sanhedrin saw that the number of murderers had increased and that they were unable to judge all of them, they arose and went into exile from their place, to a place called “the Shops” .

And we learned: “After the destruction of the Temple, Rabban Yohanan ben Zakkai instituted.”

It follows that Rabbi Yohanan was still alive after the destruction of the Temple. Consequently, during the final forty years of his life, when he was a judge, they did not judge capital cases, since forty years before the destruction they had already ceased judging capital cases.

Rather,

one must say that

ben Zakkai

mentioned in the Mishna as having examined the witnesses was another ben Zakkai,

an ordinary one.

This is also logically reasonable,

and so it is also reasonable:

for if it enters your mind

that the ben Zakkai mentioned in the Mishna was

Rabban Yohanan ben Zakkai,

it is difficult: Would

the Rabbi

who arranged the Mishnayot have called him

ben Zakkai

without mentioning his personal name, “Rabbi Yohanan”?

And we reject this: It is impossible to interpret the ben Zakkai mentioned in the Mishna as another person, for

it was taught

explicitly in a beraita:

“It once happened that Rabban Yohanan ben Zakkai examined the stalks of figs!”

If so, it is clear that this was Rabban Yohanan ben Zakkai, and it is difficult, since during the final forty years of his life, when he was a judge, they did not judge capital cases.

Rather,

one must say that the incident took place before he became a judge, while he was still

a student sitting before his teacher, and he stated a matter

before the judges, that the witnesses should be subjected to numerous examinations,

and they found his reasoning sound,

and his words were accepted.