The Babylonian Talmud (abridged)

The Sanhedrin who executes a person once in seven years, is considered pernicious. R. Eliezar b. Azariach said: Even one who does so once in seventy years is considered such. Both R. Tarphon and R. Aqiba said: If we were among the Sanhedrin, a death sentence would never occur." (Mishna X.)

RULES AND REGULATIONS CONCERNING COLLUSIVE WITNESSES IN BOTH CRIMINAL AND CIVIL CASES, AND THE APPLICATION THERETO OF CORPOREAL AND OTHER PUNISHMENTS.

MISHNA I.: How should witnesses be made collusive (so that they should be punished)? If, e.g., they testify that so and so (who is a priest) is a son of a divorced woman (whom his father had illegally married, wherefore he lost his priesthood), the court has not to decide that the witness who has falsely testified shall be regarded such (and shall lose his priesthood if he is a priest), but he should be punished with forty stripes; likewise if one testifies that so and so is to be exiled for an unintentional murder, the court has not to decide that he, the witness, be exiled for false witnessing, but he is punished with forty stripes.

GEMARA: How should the text of the Mishna be understood? It states, "how should witnesses be made collusive," and according to the illustration hereafter adduced it ought to be: How should the witnesses not be made collusive (as the punishment of a collusive witness is according to the Scripture that the same which is to be inflicted upon the defendant if the accusation prove true, and it states that such a punishment does not apply to the witness; it furthermore states concerning the case of collusive witnesses, that they are considered collusive only, then, when another party of witnesses come and say that the witnesses in question were with them at another place on the same date on which, according to their testimony, the alleged crime was done. Hence, only in such cases they are considered collusive, but not otherwise. The Tana of the Mishna refers to this passage (Sanhedrin, p. 261): "Because all who are to be put to death biblically, their collusive witnesses and their abuses are punished with the same, except in the case of the married daughter of a priest," etc. And he (the Tana) adds that there are another sort of witnesses who are not subject to the punishment of collusiveness, but who are to suffer stripes instead, and this are those who testify that so and so is a son of a divorced woman or of such who has performed the ceremony of chalitza.

Whence is this deduced? Said R. Jeoshia b. Levy: From here [Deut. xix. 19]: "Then shall ye do unto him as he had purposed to do unto his brother; to him but not to his descendants" (and if the decision were that he should lose his priesthood, then even his children would be affected). But let the court affect him only and not his descendants? This cannot be done, as the law dictates that it shall be done just the same to him as to the alleged defendant, and if such be the case his descendants would necessarily be affected. B. Pada, however, says: This is to be drawn by a fortiori reasoning--viz.: he who has transgressed (by illegal marriage of a divorced woman) does not lose his priesthood, and only his descendants from this marriage lose it. Much less so should the witness who falsely testified lose his priesthood. Rabbina opposed: Were we to use such theory the whole case of collusiveness would be made illusory. As the same a fortiori method could be applied thus: He through whose false testimony a man was already stoned, is not to be stoned; so much less so if the accused man was not as yet stoned? Therefore the best is as it is answered above.

"Is to be exiled." Whence is all this deduced? Said Resh Lakish: From here [Deut. xix. 5]: "This one shall flee unto one of these cities," etc., i.e., this one, but not his collusive witnesses. R. Jochanan, however, said: This is to be drawn by a fortiori reasoning. He who has done such a crime intention. ally does not become exiled; so much less so he who is only testifying to such a crime. This statement, however, cannot be taken into consideration, as the reason why an intentional murderer is not to be exiled is that he shall not be atoned. But the witnesses who have not perpetrated such a crime should be exiled, so that they should expiate; therefore, the best interpretation is that of Resh Lakish given above.

Ula said: Where do we find a hint in the Scripture that collusive witnesses shall be punished with stripes (here is quoted from Tract Sanhedrin, p. 20, l. 39 to p. 21 up to l. 17. See there). The rabbis taught, "there are four points concerning collusive witnesses: (a) they are not made sons of a divorced woman or of such who has performed the ceremony of chalitza; (b) they are not exiled to the cities of refuge; (c) they do not pay the atoned money, and (d) they are not sold as Hebrew slaves." In the name of R. Aqiba it was said that: Nor do they pay on self-confession. They are not made sons of a divorced woman, etc., as said above, nor are they to be exiled as said above, and they do not pay atoned money, because the rabbis hold that the money which one has to pay in case his ox has killed a person is not considered as a recompense for damages, but as an atonement, and collusive witnesses are not under the category of atonement. And who is the Tana who holds this? Said R. Hisda: It is R. Ismael, the son of Johanan b. Brokah. (See Baba Kama, p. 90, l. 2 from bottom, to 91, l. 16.)

"And they are not sold as Hebrew slaves." R. Hamnuna was about to say that this is only in the case when he, the alleged defendant, has money to pay for the theft, or if the witnesses have money to pay; but in case both have not they are to be sold. Said Rabba to him: It reads [ibid. xxii. 2], "he shall be sold for his theft, but not for his collusiveness." The text says in the name of R. Aqiba, etc.: What is his reason? He holds that this is only a fine, and one does not pay fine upon his self-confession. Said Rabba: There is a support to R. Aqiba's theory in the fact that a collusive witness, though he has not committed the crime manually, is nevertheless responsible, and is to be killed in case his testimony caused a death-sentence; and likewise in civil cases he has to pay, although he has done no damage. And similarly said R. Na'hman.

R. Jehuda in the name of Rabh said: A collusive witness pays his share. What does this mean? Shall we assume that in the case where two witnesses were found collusive each of them pays half? This is already stated further on in a Mishna. Or does it mean that if one of them was found collusive, he has to pay half? This is not so, as there is a Boraitha which states that there is no payment imposed unless both are found collusive. Said Rabha: He speaks of the case when one came before the court testifying: I, together with so and so, have testified before such and such a court, and we, having been found collusive, the court has decided that we have to pay such and such an amount. And lest one say that, as his testimony does not make liable his colleague, he himself should not be responsible either, he comes to teach us that this is not so.

MISHNA II.: We testify that so and so has divorced his wife and has not paid the amount mentioned in her marriage contract (and that testimony was false). Although they have not done any damage, as the husband has to pay the marriage contract at some time, they are nevertheless not free from the following payment--namely, it is to be appraised how much one would risk for her marriage contract in case she should remain a widow or be divorced. However, if she died while her husband is still alive, he would inherit her (and such an amount they have to pay).

GEMARA: How should the appraisement be made? (here are two kinds of risks, one can risk to buy the inheritance of a woman from her husband, who would inherit her in case of her death when he is still alive; and one can also risk to buy this from the woman in case her husband die first. However, there is a great difference concerning the amount one would risk. As a rule, one would give much more when buying it from the husband than from the wife). According to R. 'Hisda the appraisement must be of the husband's, and according to R. Nathan b. Oshia, of the wife's estate. Said R. Papa: It prevails that the appraisement should be as of the wife's, and only to the amount mentioned in her marriage contract, without, however, touching the benefit which her husband has in the fruit of her estate while she is yet alive.

MISHNA III.: We testify that so and so owes to his neighbor a thousand zuz on the condition to pay him this debt after thirty days from to-day. He, however, claims that he has to pay the amount at the expiration of ten years: and such was found to be the case. It remains, then, to appraise how much one would give for keeping a thousand zuz ten years instead of thirty days, and such an amount they have to pay.

GEMARA: R. Jehuda in the name of Samuel said: If one made a loan to his neighbor for ten years the Sabbathic year does not annul it, and although when the Sabbathic year will arrive, he would transgress the negative commandment. "He shall not exact it of his neighbor" [Deut. xv. 2], yet at present this commandment does not exist, and we do not care for the later time. Said R. Kahana: This we have also learned in our Mishna, which states that the witnesses have to pay only the difference between thirty days and ten years. And if the Sabbathic year released the whole debt, they would have to pay the whole thousand zuz. Said Rabha: The Mishna may refer to one who lends his money on a pledge, or to one who transfers his documents to the court; and there is a Mishna teaching that in such cases the Sabbathic year has no effect.

R. Jehuda said again in the name of the same authority: "If one says I will make you a loan with the stipulation that the Sabbathic year shall not release me, it nevertheless releases." Shall we assume that Samuel holds that such is considered a condition against the biblical law, and it therefore does not hold good? Is it not taught (Baba Metzia, p. 126) if one says: I sell this article to you on the condition that you shall not claim any cheating against me, etc.? According to Samuel the condition holds good, though such a condition is against the written law? Yea, but to this it was added by R. Anan that Samuel himself has explained it to him (see continuation, p. 127); and according to this explanation there is no contradiction here. Now as the case here is analogous, it follows that he made the condition: "The Sabbathic year shall not release me, it releases nevertheless. But if he says in the condition that you shall not release it, then his condition holds good."

There is a Boraitha to the effect that if one loans money to his neighbor without a fixed term of return, he has no right to demand it before the elapse of thirty days. And Raba b. b. 'Hana was about to interpret this Boraitha in the presence of Rabh that such is the case only when he lends on a document, as one would not trouble himself to write a document for less than thirty days; but if it was a verbal loan, he may demand it at any time. Said Rabh to him: So said my uncle that there is no difference between a verbal and a written loan as regards the thirty days, so long as the loan was made without any term. Similarly we have learned in a Boraitha. Samuel said to R. Mathna.. You shall not sit down before you have explained me the courses wherefrom is based the Halakha that one shall not demand a loan no matter whether it be verbal or written before the elapse of thirty days? And he answered from [ibid., ibid. 9]: "The seventh year, the year of release," etc. Is it not self-evident that the seventh year is the year of release? why then the apposition? To tell that there is another release similar, and this is a loan without a term which cannot be demanded before thirty days, as the master said that thirty days, a fragment of a year, is considered a whole year.

MISHNA IV.: We testify that so and so owes 200 zuz to his neighbor, and they were found collusive; they have to suffer both stripes and payment, because the negative commandment for the trespass of which they have to receive stripes does not, make them pay. And only another verse concerning collusiveness makes them to pay. Such is the decree of R. Mair. The sages, however, maintain that he who pays is not to be punished with stripes. If they testify that so and so has deserved forty stripes, and are found collusive, they are to be punished with twice forty stripes, once on the basis of the negative commandment: "Thou shalt not bear false witness," and, secondly, on that of the commandment: "Shall ye do unto him as he had purposed to do unto his brother"; such is the decree of R. Mair. The sages, however, say: they suffer stripes only once.

GEMARA: This is in accord with the rabbis' theory, which reads [ibid. xxv. 2]: "According to the degree of his fault," which statement is to be explained that he is made responsible for one fault, and not for two. But what is the reason of R. Mair's decree? Said Ula: He bases it upon the case of an evil name, for which crime the law prescribes the double punishment of stripes and payment, and analogous is the case here treated. But is not the payment for an evil name considered a fine? He, R. Mair, holds with R. Aqiba that the payment of collusive witnesses is also required as a fine.

There are others who refer the saying of Ula to the following Boraitha: It reads [Ex. xii. 10]; (see Sanhedrin, p. 185, l. 23, to the end of the par.), and to the question, whence is it known that to a negative commandment that does not contain manual labor, the punishment of stripes does not apply, Ula answered from the case of an evil name stated above. What, then, do the rabbis who do not hold that they shall be beaten twice infer from "Thou shalt not bear false witness"? They need this for a warning to the case of collusiveness. And where is to be found such a warning according to R. Mair? Said R. Jeramaia in [Deut. xix. 20]: "And those who remain shall hear and be, afraid, and shall henceforth," etc. The rabbis, however, infer from this passage that such a case must be heralded (see Sanhedrin, p. 256). As to R. Mair, he, too, infers from here heralding, as according to him the words "and shall be afraid" would be superfluous, if heralding were not inferred therefrom.

MISHNA V.: The fine of money may be divided into two or three shares; however, this is not to be done with stripes. How so? If they have falsely testified that one owes to his neighbor 200 zuz, and they were two or three persons, each of them has to pay his share to complete that amount. But if they have falsely testified that one deserves forty stripes, each of them is to get forty stripes in full.

GEMARA: Whence is all this deduced? Said Abaye: Concerning stripes, it reads [Deut. xxv. 2]: "Wicked"; and [Numb. xxxv. 31] it reads also "wicked" concerning capital punishment, and as that cannot be divided, so stripes are not to be divided either. Rabha, however, said: The reason is this: The punishment ought to be done to him as he had the purpose to do it to his brother. And as each one of them intended that the defendant be beaten with forty stripes, he has to get just the same. But why should not the same be concerning money fine? Because money if counted together completes the amount he should suffer, which is not the case with stripes.

MISHNA VI.: Witnesses cannot be made collusive unless the falsehood lies in their bodies; how so? If, e.g., they testify that so and so has killed a person and another party of witnesses came to contradict them, saying: How can you testify so? The killed one or the alleged murderer was with us at that date in such and such a place. They are, nevertheless, not considered collusive (so that they should be killed instead); but if the other party say you yourself were with us at that date in such a place, consequently you could see neither the murderer nor the killed one, then they are considered collusive and are to be killed upon such a testimony. If, thereafter, a third party of witnesses came and made collusive the second party, and a fourth party made collusive the third party, even if the number reach to 100 parties they all are to be killed. R. Jehuda, however, maintains that such parties of witnesses are to be considered στασις, and only the first party is to be killed.

GEMARA: Whence is this deduced? Said R. Ada: From [Deut. xix. 18]: "And, behold, if the witness be a false witness, he hath testified a falsehood against his brother," which means that the body of the witness should be found false. The disciples of R. Ismael taught, it reads [ibid., ibid. xix. 16]: "Testify against him for any deviation," which means the testifying itself should be a deviation.

Rabha said: "If two persons testify that one has killed a man in the east side of such and such a palace, and another party of witnesses come, saying that the same witnesses were with them in the west of the same, it is to be investigated if, while standing on the west side, one can see what is going on in the east side, they are not to be considered collusive, otherwise they are." Is this not self-evident? Lest one say that we have to investigate, perhaps their sight is better than the usual one, so that they could see, he comes to teach us that this does not matter. The same said again: "If two have testified that one has killed a person in the City of Sura Sunday morning, and another party came and testified that the same persons were with them in the City of N'hardaia Sunday evening, an investigation is to be made, if it is possible.

If the investigation shows that it is possible for one to walk during that time from Sura to N'hardaia, then they are not collusive; otherwise they are." Is this not self-evident? Lest one say it is to be feared perhaps the man went to the latter city in a flying camel he comes to teach us that such fear must not be taken into consideration.

And he said again: If they testify that on Sunday one has killed a person and are contradicted by another party that on Sunday they were with them, however it is a fact that the same person has killed a man on Monday; or even if they said that this man killed a person on Friday, the collusive witnesses are to be put to death, because at the time they testified the defendant was not as yet sentenced to death. But if they testified that the death sentence occurred on Sunday, and the other party testifies that they were with them at that time, the sentence, however, having occurred on Friday, or even on Monday, the first party is not to be considered collusive, because at the time they testified, the defendant was already sentenced to death. And the same is the case concerning fines. If, for instance, they testify that so and so has stolen an ox, slaughtered him or sold, on Sunday (for which he has to pay four and five fold), and the other party says that on Sunday they were with them, but the defendant did so on Monday, the first party is subject to the fine, because on Sunday the defendant was not as yet liable. However, if they say that the accused has done so on Friday; or even if they say that the decision of the court occurred on Monday the first party is not considered collusive, because at the time they testified, the man was already sentenced to a fine.

"R. Jehuda, however, said," etc. But according to him that all the parties are staçis, why should the first party be put to death? Said Rabha: He means to say that if there was only one party of witnesses. But did he not say the first party only? This difficulty remains. A woman once brought witnesses, and they were found false. She then brought another party, who were also found false. She then brought a third party. Said Resh Lakish: This woman is to be considered suspicious whose purpose is to use false witnesses. Said R. Alazar to him: Because she is suspicious should all Israel be suspected of testifying falsely? Such a case happened also before the court of R. Johanan, and Resh Lakish said the same as above. But R. Johanan exclaimed: "If she is suspicious should all Israel be suspected?" He (Resh Lakish) looked at R. Alazar rebukingly, saying: You have heard your statement from Bar Naf'ha (R. Johanan), and you have not mentioned his name! Shall we assume that R. Johanan is in accordance with the rabbis of our Mishna, and Resh Lakish is in accordance with R. Jehuda? Nay. Resh Lakish may say: "I am in accordance even with the rabbis, as in that case there was no one who searched for witnesses. In this case, however, the woman was searching for them." And R. Johanan may say: "I am in accordance with R. Jehuda"; however, this case is different, as she may have thought that the first parties were aware of her case, and she erred. The third party, however, may be aware of it.

MISHNA VII.: Collusive witnesses are not to be killed unless the sentence of capital punishment for the defendant is rendered. As only the Saducier declare that the collusive witnesses are put to death after the defendant was executed. Because it reads [Ex. xxi. 23]: "Life for life," to which the sages answered: Is it not written: "It shall be done to him as he had purposed to do unto his brother"? which means that his brother is still alive. Why, then, is it written "Life for life"? Lest one say that they should be executed as soon as their testimony was accepted, therefore it reads, "Life for life," to teach that they are to be put to death only, then, when the death sentence for the defendant was already rendered.

GEMARA: There is a Boraitha Biribi says: If the man who was accused by them was not executed as yet, the collusive witnesses are put to death; but if he was already executed, they are not. Said his father: "My son, can this not be argued by a fortiori reasoning that they should be put to death, if the accused was executed?" And he answered: "My master, have you not taught me that there is no punishment on the ground of a fortiori conclusions?" And this we have learned in the following Boraitha: It reads [Lev. xx. 17]: "If a man take his sister, the daughter of his father, or the daughter of his mother," from this we know only about the daughter of his father, not of his mother, and vice versa. But where do we know that he is guilty when she was the daughter both of his father and mother? To this it reads at the end of this verse, "The nakedness of his sister hath he uncovered." And this is written only for the purpose that one should not say that such is to be drawn by a fortiori conclusion, thus: If he is guilty for his sister who was only from one side, his father's or mother's, how much the more should he be guilty when she was his sister from both sides? Hence, from this we have to learn, that there is no punishment based on a fortiori conclusions. Thus far concerning punishment; but whence do we know that the same is the case concerning warning? To this it reads [ibid. xviii. 9]: "The nakedness of thy sister, the daughter of thy father, or the daughter of thy mother."

And it is also repeated [ibid., ibid. ii.]: "She is a sister," etc. Also for this purpose one shall not base this on a fortiori conclusion. All this is concerning capital punishment. But whence do we know that the same is the case with stripes? From an analogy of the expression "wicked" stated above (p. 7) and whence do we know that the same is the case concerning exile? From the analogy of expression "murder" as stated above. There is a Boraitha. R. Jehuda b. Tabai said: "May I not live to see the consolation of our nation, if I have not killed a collusive witness for the purpose of removing from the mind of the Saducier, who say that, collusive witnesses are not put to death, unless their accused were executed. Said Simeon ben Shata'h to him: I, too, swear by the consolation of our nation that you had shed innocent blood, as the law dictates that witnesses should not be put to death unless both of them are found collusive. Then Jehuda ben Tabai decided that he shall not render any decision before consulting Simeon ben Shatah. And all his lifetime he used to prostrate himself upon the grave of that witness. And a voice was heard. People thought that this was the voice of the dead one. But Jehuda told them that it was his own voice, saying, "You will see that after my death no voice will be heard."

MISHNA VIII.: It reads [Deut. xvii. 6]: "Upon the evidence of two or of three witnesses, shall he that is worthy of death," etc. If the evidence of two persons is sufficient, why does the Scripture mention three? To compare the evidence of three to that of two in the case of collusiveness, as another party of two, make the first party of two collusive, so they make them collusive even if the first is of three. And whence do we know that, even if they were a hundred persons, the evidence of two persons is sufficient? To this it reads: "Witnesses." R. Simeon, however, maintains that as two cannot be put to death, unless both of them are found collusive, so is it if they were three, all of them must be found collusive. And even if their number reaches a hundred, all of them must be found collusive before sentencing one of them to death. R. Aqiba, however, maintains that the third witness mentioned in the Scripture was not for the purpose to make for him the punishment more lenient, but, on the contrary, to make it more rigorous--viz., lest one say as the testimony of the third one was superfluous, because the evidence of two suffices, and, therefore, he should not be punished at all. The Scripture terms the third one in order to make him equal with the former two. From this we see that the verse punishes one, an accomplice who conjoins himself to transgressors, with the same punishment to be inflicted upon the transgressors themselves.

And we may learn from this: That so much the more will he who conjoins himself to those who are engaged in meritorious acts, be rewarded equally with them. Three witnesses are also equal to two in case one of them was found a relative or legally unfit for witnessing, as it is in the case of two when the testimony is invalidated, so it is in the case when one of the three was found such. And the same law applies even when their number reaches a hundred, from the expression "Witnesses." Said R. Jose: This is said concerning criminal cases only, but in civil cases, if one was found a relative or unfit, the evidence of the remainder is to be taken into consideration. Rabh, however, said, that as regards this there is no difference between civil and criminal cases. However, this rule holds good only when the relatives took part in warning the trespasser; but if they did not, the evidence of the others must be taken into consideration, since, if not, what could two brothers do when both saw that some one has killed a person (and there were also some other ones who have seen the murder, should then the testimony of the others be eliminated as void because there were also two brothers)?

GEMARA: Rabha said: The Mishna treats of a case where all of them have testified at once. Said R. A'ha of Difti to Rabbina: How could such a thing be possible with a hundred persons; could all of them testify at once? And he answered: It means that every one of them has testified just as his colleague has finished his testimony.

"What could two brothers do?" But how shall the court examine them? Said Rabha: They are to be questioned for what purpose they came here: to testify, or merely to see? If they say, we came to testify, then, if there was a relative or an unfit among them, their testimony is void; but if they say that merely to see, then must be taken into consideration the testimony of the others, since what could two brothers do, etc., as illustrated in Mishna.

It was taught: R. Jehuda in the name of Samuel said: The Halakha rules in accordance with R. Jose. And R. Nachman said: It rules in accordance with Rabbi.

MISHNA IX.: If two persons have seen the crime from one window and two others have seen it from another window, and there was one standing in the middle and warning the criminal, if the two parties could see each other, all of them are considered as one party of witnesses. But if not, they are considered two parties. And therefore if one of the parties was found collusive, he (the accused) and they (the collusive) are put to death, and the other party is free. R. Jose, however, maintains that there is no capital punishment unless two witnesses have warned this culprit, as it reads: "Upon the mouth of two witnesses." Another explanation of the words upon the mouth is that the Sanhedrin must not hear the evidence from a demonstrator (but they themselves must understand the language of the witness).

GEMARA: R. Zuthra b. Tubia in the name of Rabh said: Whence do we know that one witness is not relied upon? From [ibid., ibid. 6]: "He shall not be put to death upon the evidence of one witness." What does the expression, "one witness," mean? If it means that the testimony of one witness does not suffice, this is already stated above, "two witnesses"; hence it means that if two witnesses saw the crime separately, each from another place, and if they themselves could not see each other, such witnesses are not considered conjoined, so that their testimony should be taken into consideration. Furthermore, even if this was from one window, but one has seen it first, and then the other, they are likewise not to be considered conjoined. Said R. Papa to Abayi: Was it necessary to state this after the former statement, that even if each of them has seen the whole crime they are not to be conjoined if they do not see each other? So much the less so if each of them has seen but half of the act. And he answered: He speaks of an adultery case. Rabha said: If both of the witnesses have seen him who warned them, they are considered conjoined. And he said again that the warning suffices even if it comes from the mouth of the killed one. And even if a voice of warning was heard without their knowing whom it is from. R. Na'hman said: The individual witnesses in question are fit for civil cases, as it reads: "He shalt not be put to death upon the evidence of one witness," from which we learn about criminal cases only, but in civil cases they are to be considered.

"R. Jose said," etc.: Said R. Papa to Abayi: does R. Jose really hold such a theory? Have we not learned in a Mishna that if an enemy has killed unintentionally, he may be put to death because he is considered vicious, and warned? And he answered: This is not R. Jose from our Mishna, but R. Jose b. Jehuda from the following Boraitha, who said: A scholar needs no warning, for the warning is on the whole only for the purpose, that the court know whether it was done intentionally or unintentionally.

"From a demonstrator," etc. There were two foreigners who appeared in the court of Rabha, and he appointed an interpreter for them. But why did he do so? Is it not stated that the judges must not hear the case through an interpreter? Rabha understood what they said, but he could not answer them in that language.

Ailea and Tubia were relatives of a surety, and R. Papa was about to say that they are fit to be witnesses, because they are not relatives of the lender and borrower. Said R. Huna b. R. Joshua to him: If the borrower should not pay would not the lender demand the debt from the surety? Hence they are considered relatives in this case, and are not fit to be witnesses.

MISHNA X.: If, after the decision had been rendered the guilty one ran away, and thereafter he returned to the same court, his case must not be reconsidered. Everywhere, if two persons standing at any place testify that a decision was rendered for so and so by such and such a court, according to the testimony of the witnesses, so and so, the accused may be put to death upon their testimony.

The court of Sanhedrin is to be established in Palestine as well as in the countries outside of it.

The Sanhedrin who executes a person once in seven years, is considered pernicious. R. Eliezar b. Azariach said: Even one who does so once in seventy years is considered such. Both R. Tarphon and R. Aqiba said: If we were among the Sanhedrin, a death sentence would never occur. To which R. Simeon b. Gamaliel said: Such scholars would only increase bloodshed in Israel.

GEMARA: The Mishna states if he return to the same court his case must not be reconsidered. From which it is to be understood that if he returns to another court, it is to be reconsidered. And in the latter part it states that if two testify that such a decision was rendered, etc., he is to be put to death without any reconsideration? Said Abayi: This presents no difficulty. If he runs away to a court in Palestine from outside, it is to be reconsidered. As it is stated in the following Boraitha, R. Jehuda b. Dusthai said in the name of R. Simeon b. Shatah: That if one runs from the Palestine court to an outside court, his case must not be reconsidered. But if vice versa, it is to be reversed, because of the privilege Palestine has.

"Sanhedrin are to be established," etc. Whence is this deduced? From what the rabbis taught. It reads (Numb. xxxv. 29]: "For a statute of justice throughout your generations, in all your dwellings." From this it is inferred that Sanhedrin are to be established in Palestine as well as in the countries outside. But why is it written elsewhere "in thy gates"? To say that "in thy gates" in Palestine, you have to establish courts in every principal city, as well as in the small cities; but in the countries out of Palestine, you have to establish them in the large cities but not in the small ones.

RULES AND REGULATIONS CONCERNING UNINTENTIONAL MURDER AND EXILE WHICH IS THE PUNISHMENT THEREFOR.--WHO IS AND WHO IS NOT SUBJECT TO EXILE.--THE CITIES OF EXILE AND THEIR PREPARATIONS.--THE REDEEMING OF THE EXILED BY THE DEATH OF THE HIGH-PRIEST.

MISHNA I.: The following are exiled: He who kills a person unintentionally. If, e.g., one fixes his roof with a machine and the latter falls from his hand and kills a man, or if he takes off a barrel from the roof and it falls from his hand and kills, or if he himself falls from the ladder while descending and kills, he is to be exiled. However, if, while carrying the machine up to the roof, or pulling a barrel on a rope up to the roof, the rope breaks and the barrel falls and kills, or if he himself, while ascending to the roof, falls and kills, there is no exile. As there is a rule that for killing while descending, he is exiled, but not while ascending.

GEMARA: Whence is this deduced? Said Samuel: From [Numb. xxxv. 23]: "And he have let it fall upon him, that he died," which means that it fell in the usual manner. The rabbis taught [ibid., ibid. 15]: "Unawares" means to exclude the case when it was done intentionally; [Deut. xix. 4] "without knowledge" to exclude him who intends to do so. But is it not self-evident that he who kills a person intentionally is to be put to death? Said Rabha: It excludes even him who thought that such is allowed. Said Abayi to him: Is the act of one who thought that such is allowed not to be considered an accident? Answered Rabha: I hold that such is to be considered almost intentional.

Further on it is stated "without knowledge to exclude him who intended to do so." Is this not self-evident? Said Rabha, i.e., to exclude him who intended to kill an animal, and killed a man, or miscarried and killed a full term child.

The rabbis taught: It reads [Numb. xxxv. 22]: "If he have pushed against him accidentally "means to exclude a corner (where the injured one has entered, while the murderer was going from the opposite with a knife in his hand and wounded the former). "Without enmity" excludes the case where the murderer was his enemy. "Pushed" means with his body. "Or have cast upon him" includes the one who injured while bending himself for the purpose of raising his instrument to land the blow harder. "Without lying in wait" excludes him who intended to strike in one side, but struck in the opposite. [Ex. xxi. 13] "And if he did not lie in wait" excludes the one who intended to throw it as far as two and threw it four yards. [Deut. xix. 5] "And he that goeth into the forest with his neighbor" means as the entrance into a forest is permitted to every one, so also must the place be open where the accident happened--be open to every one--to the injurer as well as to the injured. R. Abuhu questioned R. Johanan: What is the law in this case: If one was climbing a ladder and, a step having been broken under him, he fell down and killed; is this to be considered on ascending, for which one is not liable, or on descending; for which he is? And he answered: It is already explained above: That a descending for the purpose of ascending is included. He (Abuhu) objected to him from the following: "This is the rule, that if while descending he is to be exiled, but if while ascending, he is not."

Does not the expression "while ascending" include a similar case to that about which I questioned you) And be answered: According to your theory, the expression "while descending" must also include something. And what is it? You must then say that it means to include chopping, e.g., a butcher that chops meat and kills a man (by a slip of the hatchet, etc.); similarly it may be said that the expression "while ascending" means to exclude same. As we have learned in the following Boraitha: "A butcher who has chopped meat," etc. One Boraitha declares him guilty if the killing was in front of him, but not if it happened behind. And another Boraitha asserts the contrary. A third one, however, declares him free at any rate. And they are not contradictory, since one of them speaks of the case that, while he was bending himself, the accident took place in front of him, he is then responsible. And if through his rising the accident happened behind, he is free. And the other two Boraithas speak of cases which happened to be in the contrary and otherwise.

Shall we assume that in this case the Tanaim of the following Boraitha differ--viz.: If one has climbed a ladder and the step under him broke and killed, one Boraitha declares him guilty, and another free. Is it not because one considered his climbing as ascending and the other as descending? Nay, according, to both, it is considered as ascending. But that which declares him liable means in respect of damages, and that which declares him free means from exile.

MISHNA II.: If the iron of a hatchet slipped off and killed, according to Rabbi he is not to be exiled, and according to the sages he is. The same differ also as regards the case where a piece of wood split off from the felled tree and kills; according to Rabbi he is, and according to the sages he is not exiled.

GEMARA: There is a Boraitha. Rabbi said to the sages: Does it read [Deut. xix. 5]: "The iron slippeth from its tree"? It reads, "from the tree." And secondly, in the beginning of the verse the expression is "to hew (etz) trees," and herewith "the iron slippeth," the same word, etz, is used, whence, as above, it means that a chip slipped from the tree, so by the expression "from the etz" is meant a piece of wood split from the tree. Hence, he is to be exiled. Said R. Hiye b. Ashe in the name of Rabh: Both (the sages and Rabbi) took their opinion from one and the same passage cited above. Rabbi holds that the law must be decided in accordance with the Masora writing, which is "v'nishshel," i.e., and the iron chips off a part of the wood. And the rabbis hold that the attention must be called to the traditional reading which is v'nashal, i.e., "and the iron slips off the helve." But does Rabbi indeed hold that attention must be given to the Masora? Did not R. Itz'hak b. Joseph in the name of R. Jo'hanan say: Rabbi, R. Jehuda b. Roietz, the school of Shamai, R. Simeon and R. Aqiba all hold that the attention must be given to the traditional reading? For this purpose Rabbi added in his discussion "and secondly," etc.

R. Papa said: If one threw a lump of brittle stone at a date tree and the dates fell off and killed (a child), we come to the differing of Rabbi and the sages mentioned in our Mishna.

Is this not self-evident? Lest one say that Rabbi would consider this as a secondary force (i.e., the killing was not the result of the direct force of the man who struck the tree, but of the second force of the tree), he came to teach us that it is not so. What then is considered second force according to Rabbi? If, e.g., he struck a bare branch of the tree, and it struck the branch upon which the dates were growing, and the dates fell and killed.

MISHNA III.: If one throws a stone in a public ground and it kills, he is to be exiled. R. Eliezer b. Jacob, however, maintains: If after the stone had been thrown one bent his head and received it, the thrower is free. If one throws a stone in his yard and kills a person, he is guilty if the killed one had a right to enter it, otherwise he is not. Because concerning this case a forest is mentioned in the Scripture, that the place of injuring should be similar to a forest into which every one is allowed to enter; excluding a private yard into which every one is not permitted to enter. Aba Shaul said: As the hewing of wood (mentioned in the Scripture in this case) is a private thing, so also the punishment of exile attaches but to a private act; excluding, e.g., a father who struck his son, or a teacher his pupil, or the messenger of the court who was on duty.

GEMARA: In public ground! Then he must be considered an intentional murderer? Said R. Samuel b. Itz'hak: It speaks that the accident occurred while he was removing his wall (see the discussion to this answer in Baba Kama, p. 72, l. 11-26).

"R. Eliezer b. Jacob said," etc. The rabbis taught: It reads [Deut. xix. 5]: "And find his neighbor," to exclude him who causes himself to be found under the stone. And from this R. Eliezer b. Jacob inferred his theory, that if after the stone was already thrown, one has put his head under it and was killed, the thrower is free.

"As hewing wood," etc. One of the rabbis questioned Rabha: Is hewing wood always considered a private affair? Is there not a meritorious act to hew wood for making a Sukka or for the purpose of burning it upon the altar? Hence, if an accident happened by such an act, let him be free. And he answered: This cannot be considered so, as a Sukka can be prepared from hewed wood, and the same it is with the altar. Hence, such an act cannot be considered meritorious.

MISHNA III.: A father is exiled if the accident happened to his son, and vice versa. All kinds of human beings are exiled when they killed by accident an Israelite; and same is exiled if he killed one of them accidentally, except a proselyte (who accepted upon himself only the seven commandments which were given to the descendants of Noah) who is to be exiled only, then, when he killed accidentally a proselyte like himself.

GEMARA: The Mishna states: A father is exiled if he killed his son accidentally. Was it not taught above that a father who struck his son is excluded? It speaks of a case where the son was already a learned one; or of a father who taught a trade to his son, who had had already another trade.

"And the son may be exiled," etc. There is a contradiction from the following. It reads [Numb. xxxv. 15]: "That killeth any person unintentionally." "Any person" means to exclude him who struck his father? Said R. Ka'hana: This presents no difficulty; the cited Boraitha is in accordance with R. Simeon, who holds that choking, which applies to killing one's father, is more rigorous, and such cannot be atoned. And our Mishna is in accordance with the rabbis, who hold that the sword is more rigorous than choking. And therefore the sword applies to parricide; however, an error in a crime to which the sword applies, can be atoned.

"All kinds of human being," etc. What does the expression "all" mean to add? If a heathen and a slave, this was taught by the rabbis: A heathen or a slave is to be exiled or punished with stripes through an Israelite and vice versa. But how is this to be understood? It is correct that they are to be exiled in case an Israelite was accidentally killed by them, and by stripes it they cursed an Israelite. But how can this be done with an Israelite? It is correct that he is exiled when he killed one of them accidentally; however, how can he be beaten if he cursed one of them? Is it not written [Ex. xxii. 27]: "And a ruler among thy people thou shalt not curse." And it was explained that it speaks of him who acts according to the rules of thy people. Said R. A'ha b. R. Aika: It speaks of a case that one of the above-mentioned has hit an Israelite in such a manner as could not be appraised with payment. As R. Ami said in the name of R. Jo'hanan, that in such a case the heathen gets stripes. And the same is the case when an Israelite hits a heathen. And we do not compare the case of hitting with the case of cursing.

"Except a proselyte," etc. There are some who presented a question of contradiction in the following passages--viz. [Numb. xxxv. 15]: "For the children of Israel, and for the stranger and for the sojourner among them, shall these six cities," etc., while [ibid., ibid. 12] "And these cities shall be unto you for a refuge," which means to exclude strangers. Said R. Kahana: "This presents no difficulty; verse 12 means in case the stranger killed an Israelite, while verse 15 speaks of a stranger who killed one of his like." But there is a contradiction from the following: "And therefore a stranger, or an idolator who has killed even unintentionally is put to death; hence, it compares a stranger to an idolator, as in the case of an idolator there is no difference whether he kills a person of his like, or any person. The same is the case with a stranger." Said R. 'Hisda: "This presents no difficulty, as one Boraitha speaks of him who killed while descending, and the other while ascending. He who killed while descending, in which case an Israelite is to be exiled, is also exiled; but if he killed while ascending, in which case an Israelite is free, is put to death." Said Rabha to him: "Is it not to be drawn by a fortiori argument that in such a case he is to be free; namely, if while descending, in which case an Israelite is exiled, he is also exiled only; in case of ascending, in which an Israelite is free, so much the more he should not be put to death?" and therefore, says Rabha, that only then when the stranger has killed intentionally, thinking that such is allowed; and this is in accordance with his foregoing theory (p. 15) that such is to be considered almost intentional.

Abayi and R. 'Hisda, however, consider such a case an accident. Rabha objected to them from the following [Gen. xx. 3]: "Behold, thou shalt die for the sake of the woman whom thou hast taken." Does this not mean that he will die upon the decision of a human court? (Hence, although Abimelech thought she is single, nevertheless the court would sentence him to death)? Nay, it means he deserves death by Heaven. And as evidence to this can be adduced, the expression [ibid., ibid. 6] "against me." But how can this theory be taken as evidence? Is it not written [ibid. xxxix. 9] "and sin against God"? Does this mean and not against men? It surely means that for such a sin against God he will be tried by the human court (which punishes adultery with death).

Abayi objected to Rabha from [ibid. xx. 4]: "Lord, wilt thou then slay also a righteous nation?" (Hence we see that his uncertainty is considered accidentally.) Nay, this objection was already met as follows: It reads [ibid., ibid. 7]: "For he is a prophet." How is this to be understood? Because be is a prophet she has to be returned, but if a layman, she would not have to be returned? We must then say that this passage is to be interpreted in accordance with R. Samuel b. Na'hman thus: "Thou shalt return the wife at any rate, and to thy question, 'Lord, wilt thou then slay also a righteous nation?.... She is my sister,' etc., the answer is, he is a prophet, and has learned to say so from thyself." Usually, when a guest comes to a house, he is questioned about eating and drinking, but not whether the woman accompanying him is his wife or sister. (In his country, however, Abraham said that she is his sister only because he was questioned.) From all this it is to be inferred that a descendant of Noah is put to death because he had to learn and did not.

MISHNA IV.: Exile does not apply to a blind one. So says R. Jehuda. R. Meyer maintains that it does. An enemy is not exiled (as such a punishment does not suffice). R. Simeon, however, maintains: An enemy is to be put to death, for he is considered vicious. To which R. Simeon said: "It depends upon circumstances; sometimes such is exiled, and at other times he is not. For this is the rule: If there is a possibility to think that he killed intentionally, exile is not sufficient; but if such is not the case, he is exiled."

GEMARA: The rabbis taught [Numb. xxxv. 23]: "Without seeing" means to exclude a blind one who cannot see at all. So R. Jehuda. R. Meyer, however, maintains that this includes him; and their reasons are as follows [Deut. xix. 5]: "Into the forest," where, as usually, also the blind go; therefore the expression "without seeing" excludes him. Such is the reason of R. Jehuda. And R. Meyer's is: Because "without seeing" is an exclusion, and there being another expression "without knowledge," which is also an exclusion, we have two exclusions, and there is a rule that an exclusion after an exclusion comes to add something; hence it adds a blind one. R. Jehuda, however, explained the last expression to mean the exclusion of an intentional murder.

"An enemy is to be put to death." Why, he was not warned? Our Mishna is in accordance with R. Jose b. Jehuda, who says above (p. 13) that no such warning is needed.

"R. Simeon said," etc.: There is a Boraitha: How does R. Simeon illustrate his theory? If, e.g., the rope, to which the man's instrument was attached, broke--then he is exiled; but if the instrument slips out of his hand, exile is not sufficient, as he was the enemy of the killed, it is to be supposed that he did it intentionally. But have we not learned in another Boraitha: R. Simeon said. He is not exiled "until the entire ramming machine slips out of his hands"? Hence it contradicts in both cases: in case the rope broke, and in case the instrument slips. Nay, there is no contradiction in case of the rope; as one speaks of an enemy and the other of a friend. There is also no contradiction in case of the slipping of the instrument; as one Boraitha is in accordance with Rabbi (who says: If such a case happen to a friend he is exiled), while the other is in accordance with the rabbis who do not agree with him.

MISHNA V.: Whither are they to be exiled? To the cities of refuge, three of which are situated on the other side of the Jordan and three in the land of Cana'an. As [Numb. xxxv. 14]: "Three of these cities shall ye give on this side of the Jordan, and the three other cities shall ye give in the land of Cana'an." However, until the latter three were selected, those on this side of the Jordan have not protected as yet; as it reads [ibid., ibid. 13]: "six cities of refuge," which means none of them protects unless all the six are selected.

They were also obliged to prepare roads from one city to the other; as it reads [Deut. xix. 3]: "Thou shalt put in order for thyself the (way to them), and divide into three." Two scholars are to accompany the exile on the road to protect him, so that he shall not be killed by the relatives of the deceased, and they are to reconcile them. R. Meyer, however, said: He himself has to reconcile them, as it reads [ibid., ibid. 4]: "And this is the talk of man-slayer." R. Jose b. Jehuda, however, said: Formerly all murderers, accidental as well as intentional, used to flee to the cities of refuge; the court then sends after them and tries them. He who was found guilty was executed, otherwise he was freed; and him who was to be exiled they returned to the city of which he was taken; as it reads [Numb. xxxv. 25]: "The congregation shall restore him to the city of his refuge."

GEMARA: The rabbis taught: Three cities Moses separated on this side of the Jordan, and opposite them Joshua separated out in the land of Cana'an, and they were right opposite: one against the other, as two rows in a vineyard." Namely [Joshua xx. 7] "Hebron in Judah," opposite [Deut. iv. 43] "Bezer in the wilderness," "Shechem in the mountain of Ephraim", "Ramoth in Gil'ad," "Kedesh in Galilee in the mountain of Naphthali," "Golan in Bashan." "And divide into three" means there shall be the same distance from South Palestine to Hebron as from Hebron to Shechem; and from Hebron to Shechem as from the latter to Kedesh, and from Shechem to Kedesh as from the latter to North Palestine. Now let us see: three were needed on the other side of the Jordan, and only three for the whole land of Israel? Said Abayi: In Gil'ad there were many murderers, as it reads [Hosea vi. 8]: "Gil'ad is become a city of workers of wickedness, is full of traces of blood." What does this expression mean? Said R. Elazar: They were thirsty to shed blood. Why were the cities on both sides of the Jordan far from the boundary, and the middle one was near? Said Abayi: Because Shechem was also full of murderers; as it reads [ibid., ibid. 9]: "And troops that lie in wait for a man, like the band of priests, they murder on the way to Shechem." "Band of priests"--what does it mean? Said R. Elazar: They conjoin themselves to kill as the priests conjoin themselves to receive the heave-offering from the barns. But were there not more cities of refuge? Is it not written [Numb. xxxv. 6]: "And in addition to them shall ye give forty and two cities"? Said Abayi: The former protect the refugee at any rate, whether he is aware of that city being a place of refuge or not; while the latter accept him only when he was aware.

Was then the city of Hebron indeed a city of refuge? Does it not read [Judges i. 20]: "And they gave Hebron," etc. Said Abayi: It was only the suburb of it, as it reads [Joshua xxi. 12]: "But the fields of the city, and its villages, they gave to Caleb." Was Kedesh one of them? Does it not read [ibid. xix. 37]: "And Kedesh, and Edre'i," etc.? And there is a Boraitha that the city of refuge must neither be too large nor too small, but middle-sized ones. (The cities mentioned there were, however, all large ones?) Said R. Joseph: "There were two cities of the same name." Said R. Ashi: As, for instance, Sliquus and Aquri of Sliquus.

The text says: Middle ones. To this is added: They must be situated in places where there is water, and also where there are markets; and if such are not found, the same must be established. Also must they be situated near the army, and if the army was diminished, it must be added. If the dwellings in such cities become vacated, there must be brought new people composed of priests, Levites, and Israelites; and ammunition must not be sold in such cities, according to R. Ne'hamayi. The sages, however, allow this. But both agree that neither snares (for catching beasts) nor rope factories must there be established. All this is to prevent the relatives from coming to the cities in question. And R. Itz'hak said: This is inferred from [Deut. iv. 42]: "And that he should flee unto one of these cities and live," which means you shall prepare for him all the necessities of life. And there is a Boraitha that if a disciple is exiled, his master is exiled with him; because the expression "and live" means you shall supply him with the sources of moral life. And R. Zera said: From this we infer that one shall not teach a disciple of bad character. R. Johanan says: If it happens that the head of a college is exiled, the whole college is exiled with him. Is that so? Did not R. Johanan say that the study of the Torah relieves one; for immediately after the verse "in the wilderness" stated above, is written "and this is the law"? This presents no difficulty: it relieves only at the time he is occupied with it, but not otherwise. And if you wish, it may be said that it relieves from the Angel of Death; as it happened with R. Hisda, who was studying continuously, so that the Angel of Death could not come near him until he caused the cedar in the yard of the college to break, the noise of which stopped his studying, and the Angel of Death took hold of him. R. Tan'hum b. Hanilaye said: Why is the tribe of Reuben mentioned first among the cities of safety? Because he was the first to save Joseph from his brothers, as it reads [Gen. xxxvii. 21]: "And when Reuben heard it, he delivered him out of their hand."

R. Simlae lectured: It reads [Deut. iv. 41]: "Then Moses set aside three cities on this side of the Jordan, toward the rising of the sun." The Holy One, blessed be He, said to Moses: "Thou hast made the sun shining toward the murderers."

R. Simaye lectured: It reads [Eccl. v. 9]: "He that loveth money will never be satisfied with money; but he that loveth abundance, will finally have income." He that loveth money means Moses, our Master, who was aware that the three cities on the other side of the Jordan do not accept until the other three cities are selected; nevertheless he selected them, saying: I shall not fail to perform a meritorious act which came to my hand. And "he that loveth abundance"--who is fit to lecture before a crowd, he who possesses the fruits of knowledge (of Bible, Mishna, Halakha and Hagada). And this is what R. Elazar said. It reads [Psalm cvi. 2]: "Who can utter the mighty acts of the Lord? He who can publish all his praise." (He takes the latter not as a question, but as answer to the former.) The rabbis, according to others, Rabba b. Mari explained this passage thus: He who loves the abundance of scholars possesses the fruit of knowledge; and the rabbis looked upon Rabha b. Rabba who possessed such a quality. R. Ashi said: He who likes to learn among a crowd of scholars possesses the fruit of their knowledge. And this is what R. Jose bar Hanina said: It reads [Jer. l. 36]: "The sword on the badim means the sword may cut the necks of the scholars who are studying separately each for himself; and not only this, but they become also foolish and also commit a crime thereby." Rabina said: He who loves to teach many, has the fruit of knowledge. And this is what Rabbi said: I learned much from my masters, more, however, from my colleagues, and still more from my disciples.

R Jehoshua b. Levi said: It reads [Psalm cxxii. 2]: "Our feet are now standing within thy gates, O Jerusalem." Who caused that our feet shall conquer the enemy and stand within the gates of Jerusalem? The same gates in which the Law was studied. He said again: It reads [ibid., ibid. 1]: "I was rejoiced when they said unto me, Unto the house of the Lord let us go." David said before the Holy One, blessed be He, Lord of the Universe, I have heard people say, When will this man die, so that Solomon, his son, shall build the Holy Temple and we will rejoice? And He answered [ibid. lxxxiv. 11]: "For better is a day in thy courts than a thousand." I like one day in which thou art occupied with the Law better than the thousand burnt-offerings which Solomon, thy son, will sacrifice before me in the future.

"To prepare roads," etc. There is a Boraitha. R. Eliezer b. Jacob said: "The word 'refuge' was written at every crossing for the purpose that the murderer shall recognize the way to take. Said R. Kahana: This is inferred from the above-cited verse [Deut. xix. 3], which means you shall establish all preparations needed on this way.

R. Hamma b. Hanina, when he wanted to lecture on this case, used to begin with [Psalm xxv. 8]: "Good and upright is the Lord: therefore he pointeth out to sinners the right way," saying, If He puts the sinners in the right way, so much the more the upright.

Resh Lakish used to begin his lecture on this case with [Ex. xxi. 13 and I Sam. xxiv. 14]: "From the wicked proccedeth wickedness." The Scripture speaks about two men each of whom killed a person: one of them intentionally, and the other unintentionally, but there were no witnesses in either of these cases. The Holy One, blessed be He, appoints them into one inn, and be who had killed intentionally is placed under a ladder, while the other, who killed unintentionally, descends the steps, falls and kills him (the one under the ladder). Hence the outcome is: he who has killed intentionally was killed; and the unintentional killer was exiled.

Rabba b. R. Huna in the name of his father, according to others the latter in the name of R. Elazar, said: From the Pentateuch, Prophets, and Hagiographa it is inferred that the way the man likes to follow, he is led upon by Heaven. From the Pentateuch [Numb. xxii. 12]: "Thou shalt not go with them," and [ibid., ibid. 20]: "Rise up, go with them"; from the Prophets [Is. xlviii. 17]: "Who teach thee for thy profit, who lead thee by the way thou shouldst go"; and from Hagiographa [Prov. iii. 34]: "If (it concern) the scornful, he will himself render them a scorn; but unto the lowly doth he give grace."

R. Huna said: If a relative killed the murderer who had already been in the city of refuge, he is nevertheless free; because he holds. that the expression "he deserveth not a judgment of death" [Deut. xix. 6] applies to the relative. An objection was raised from the following: The just-cited verse speaks of the murderer; but perhaps it speaks of the relative of the dead? For this purpose it reads [ibid., ibid. 4]: "When he hath not been an enemy to him in time past." Hence the verse in question speaks of the murderer? He (R. Huna) holds with the Tana of the following: The verse in question speaks of the relative; but perhaps of the murderer? For this it reads (4) "enemy" hence the verse in question necessarily concerns the relative.

Another objection was raised from our Mishna which states: "Two scholars have to accompany him." Was it not for the purpose of warning the relatives, that, in case they would attempt to slay, the same will be done to them? Nay, only to reconcile them; they should not consider him as a blood-shedder, for he has done it by error. And to the opinion of R. Mair that the murderer himself could do so, it was answered: "Outside defence is more considered."

R. Elazar said: A city, the majority of which are murderers, does not protect; as it reads [Joshua xx. 4]: "And speak in the ears of the elders of that city his words," but not the words which they (the elders) had to speak for themselves some time ago. The same said again that a city in which there are no elders does not protect. In this case, however, R. Ami and R. Assi differ. According to one it does, and according to the other it does not. The same differ concerning a stubborn and rebellious son, and also concerning breaking the neck of the heifer [Deut. xxi.], as in all the cases the elders are mentioned, and they are not found; however, he who holds that it does not matter maintains that it was written only because it is usual that a city should have its elders, but not to prevent if there are none.

R. Hama b. Hanina said: Why is the portion of murderer., with a strong language [Joshua xx. 1]: "And the Lord spoke to Joshua" instead of said; and also at the end of the verse (2), "Whereof I have spoken"? Because this command was the only one which the Lord commanded Joshua to fulfil what had been already written in the Pentateuch. And whence do we know that spoke is stringent language? From [Gen. xlii. 30]: "Spoke roughly." However, concerning this subject R. Jehudah and the rabbis differ: according to the one it was because Jeshuah delayed to establish them, and according to the others the reason is as said above.

It reads [josh. xxiv. 26]: "And Joshua wrote these words in the book of the law of God." R. Jehudah and R. Ne'hamiah differ: according to one he wrote only the eight verses, which begin with "And Moses died"; according to the other he wrote the portion of the cities of refuge. And the latter explains the expression "in the book of the law of God" thus: Joshua wrote in his book that which had been already written in the book of the law of God.

In case the Holy Scrolls were sewn with thread of flax, R. Jehuda and R. Meyer differ: according to the one it is valid; according to the other it is not. The latter's reason is [Ex. xiii. 9]: "In order that the Law of the Lord may be in thy mouth," we see, then, that the Law is compared to Tephilin, and as the Tephilin are to be sewn with thread of a calf, the same is the case with the Holy Scrolls. And according to the other it is compared only as regards the hide of such cattle which is allowed to the mouth, but not concerning other laws. Said Rabh: I have seen the Tephilin of my uncle and they were sewn with thread of flax. (Says the Gemara): The Halakha, however, does not prevail with him.

MISHNA VI.: There is no difference between the high-priests who were anointed with the holy oil (in the first Temple) and those who were sanctified by the holy dress (in the second Temple), and even him who has temporarily substituted the high-priest in case of sickness--they all release the murderer by their death. R. Jehudah said: Even the priest who was anointed for the war only. Therefore the mothers of the priests used to support the murderers with food and clothes that they shall not pray death to their sons.

GEMARA: Whence is this deduced? Said R. Kahana: From [Numb. xxxv. 25-28], where the death of the high-priest is mentioned three times, from which we infer the three kinds of priests in the Mishna. And R. Jehudah, who adds also the anointed for the war, infers it from verse (32), where the priest is mentioned the fourth time. The rabbis, however, do not care to add same, because the word high is not mentioned there, hence it means one of the above-mentioned.

"The mothers of the priests," etc. They shall not pray, but what if they should, would it effect? Does it not read [Prov. xxvi. 2]: "As the bird (cometh) to flit away, as the swallow, to fly off: so will an undeserved curse not come (to fulfilment)"? Said a certain elder: I understood from the lecture of Rabha that it is counted as a sin to the priest, who should pray that no accident might happen in that generation, and he did not. As it happened with one whom a lion has consumed a distance of three passas from R. Jehoshua b. Levi's dwelling, and Elisha did not talk to him for three days. Said R. Jehudah in the name of Rabh: The curse of a sage and be it for nothing, is realized; and this we see to have been the case with Achithaphel. When David was digging under the altar a hole to reach the watery depth of the earth (-Shithin), the water came up and menaced to inundate the world; whereupon David asked: Is it allowed to inscribe the Holy name upon a piece of broken clay and drop it into the water; and as no answer came from the people present, he exclaimed: Whoever amongst ye knows and abstains from answering, shall be suffocated! Then Achithaphel concluded a fortiori thus: If the Lord has allowed His name to be erased by water in order to make peace between husband and wife, so much the more so when the peace of the whole world is concerned. Accordingly he decided that it is allowed; David then following this decision dropped the bit of clay with the name on into the water, and the water turned back into its depths. Nevertheless Achithaphel choked himself [2 Sam. 17, 23]; all which corroborates Rabh's saying quoted above by R. Jehudah.

R. Jehudah in the name of Rabh said: If a sage has put some one under the ban conditionally, a release must take place at any rate by the same sage or by some other one. And this is inferred from the case of Judah, of whom it reads [Gen. xliii. 9]: "If I bring him not unto thee," etc. R. Samuel b. Na'hamoni in the name of Jonathan said: It reads [Deut. xxxiii. 6-7]: "May Reuben live... this is the blessing of Judah." (Why, then, is Judah mentioned just after Reuben and also his blessing distinguished with the expression "and this"?) Because all the forty years during which Israel was in the desert, the remains of Judah were dismembered in his coffin until Moses arose and prayed for him, saying: Lord of the universe! Who caused Reuben to confess if not Judah? Hear, Lord, the voice of Judah!" Immediately, then, the members of his body were placed in their order. However, he was not allowed to enter the heavenly college until Moses prayed: "And bring him unto his people." Still he could not discuss with the rabbis; to this Moses said: "Let the power of his hand contend for him!" Still he could not answer questions; thereupon Moses said: "And be thou a help to him from his adversaries."

The schoolmen propounded a question: When is the murderer released? Does the release of the murderer require the death of all those priests mentioned in the Mishna or the death of one of them suffices? Come and hear: If his decision was rendered at the time when a high-priest did not exist, he remains there forever. Now, if he is released by the death of one of them, let him be returned by the death of a substitute? Hence he must wait until the death of them all. However, perhaps the Mishna speaks of a case where there was no substitute?

MISHNA VII.: If after the decision had been rendered the high-priest dies, he is not exiled. If, however, the priest dies before it was rendered and another priest was appointed and the decision was then rendered, he returns on the death of the second one. If, however, his decision was rendered while a high-priest did not exist, or he was to be exiled, because be killed a high-priest, or a high-priest who himself killed accidentally, he never returns from his exile.

The murderer is never to go out from his place of exile even if he was a witness to a meritorious or to a civil, or even to a criminal case. And even if Israel needs him and should he be a captain in Israel, like Johab b. Zeruiah, he must not go out all his life; as it reads [ibid., ibid. 25]: "To the city of his refuge, whither he had fled," which means there shall be his dwelling, there shall be his death, there his burial.

As the city itself protects, so does its limit; therefore, if it happens that a murderer goes outside of the limit and the relatives of the deceased meet him, according to R. Jose, the Galilean, it is a meritorious act for the relatives to kill him; and if a stranger kills him he is not responsible. R. Aqiba, however, maintains that a relative is not responsible, but it is not meritorious; while a stranger is responsible for his death.

GEMARA: What is the reason of the first statement in the Mishna? Said Abayi: This is to be drawn by a fortiori reasoning: he who was already exiled is released, so much the more is he who is only sentenced to it. But perhaps he who was already in exile is atoned, but not he who was not there as yet? Does, then, the exile atone? The death of the high-priest atones.

"Dies before it was rendered," etc. Whence is this deduced? Said R. Kahana: From [Numb. xxxv. 25]: "And he shall abide in it until the death of the high-priest, who hath been anointed with the holy oil." Who has anointed him? Certainly not the murderer! It, therefore, means: He who was anointed in his days. But what has the high-priest done that the murderer's fate should depend upon his death? He ought to have prayed that the decision of the court be in behalf of the defendant, which he did not.

Abayi said: We have a tradition that if after the decision was rendered the defendant dies, his remains must be carried to the city of refuge; as it reads [ibid., ibid. 32]: "That he should come again to dwell in the earth until the death of the priest." Dwelling in the earth means the grave. There is a Boraitha: If he dies in the city of refuge before the death of the high-priest, his remains may be carried to his native place; as it reads [ibid., ibid. 28]: The manslayer may return unto the earth of his possession. What is meant by "the earth of his possession"? The grave. In the case when after the decision had been rendered, the high-priest was found unfit for his dignity, e.g., he was the son of a married, or of one who performed the ceremony of Halitzah, R. Ami and R. Itz'hak of Nafha differ: one holds that the priesthood is dead, and it is equivalent to the death of the high-priest; while the other holds that it is abolished, hence he was never a priest and the decision against the murderer was rendered when a high-priest did not exist; accordingly, he must remain there forever.

"And a high-priest did not exist," etc. R. Jehudah said in the name of Rabh: It reads [I Kings ii. 28]: "And Joab fled unto the tabernacle." Joab erred twice in so acting. (a) he thought that the horns of the altar protect, while the roof of the Temple protects; and (b) he thought that the altar of the tabernacle of Shila protects; in reality, however, the altar of the Temple, only, protects. Said Abayi: He erred also in this: he thought that it protects every one, while in reality it protects only a priest on duty, which was not the case with him.

Resh Lakish said: It reads [Isaiah lxiii. 1]: "Who is this that cometh from Edom, dyed red in his garments from Bozrah?" The heavenly ruler of Rome will err thrice in the future. (a) He will think Bozrah protects, while only Bezer does so; (b) that it protects even an intentional criminal, while it does so only an unintentional; and (c) it protects only a man, but not an angel as he was.

R. Abuhu said: The cities of refuge are not given for cemeteries, as it reads [Numb. xxxv. 3]: "And their open spaces shall be for their cattle, and for their goods, and for all their requirements," i.e., requirements for life, but not for death; and the statement above that the murderer must be buried in the city is no objection, as concerning him the Scripture dictates a separate law.

"So does its limit." There is a contradiction from the following: It reads [ibid., ibid. 25]: "And he shall abide in it," but not in its limit? Said Abayi: This presents no difficulty; concerning protection it does, but to dwell he is not allowed.

"Outside of the limit." The rabbis taught: It reads [ibid., ibid. 27]: "And the avenger of the blood should kill the manslayer: he shall not be guilty of blood." It is a meritorious act of the avenger to do so; and every stranger may do so if there is no relative. Such is the decree of R. Jose the Galilean. R. Aqiba, however, maintains that if the relative likes to do so, he may; but it is not meritorious. A stranger, however, if he did so, is guilty. The reason of the former is: it does not read "if he will kill him;" and the reason of the latter is: it does not read "he shall kill him." Mar Zutra b. Tubiah in the name of Rabh, however, said that if the relative has killed him while he was out of the limit, he is to be killed if he did it intentionally. But this is not in accordance with R. Jose, nor with R. Aqiba. In accord with whom, then, is his theory? With the Tana of the following Boraitha: R. Eliezer said [ibid., ibid. 12]: "Until he have stood before the congregation for trial." To what purpose is this written (is it not self-evident that he is not to be executed without a trial)? Because (27) reads "should kill... not guilty of blood"; lest one say that so it is even if the avenger had killed him before he was tried and found guilty, therefore it reads "until he have stood... for trial." R. Jose and R. Aqiba, however, infer from the just-cited passage that if the Sanhedrin themselves have seen one killing a man, they must not execute him unless he has been tried before another court and found guilty.

The rabbis taught: It reads (26): "Should at any time pass the boundary," etc., which means intentionally, but whence do we know as to if he pass unintentionally? Therefore, "at any time," which would be superfluous if not signifying this case. But is there not a Boraitha to the effect that if one has killed intentionally he is put to death, etc.? This presents no difficulty: the Boraitha cited is in accordance with him who holds that the Scripture speaks in accordance with human language, while the rabbis do not hold so. Said Abayi: It seems to me that he who holds that the Scripture speaks in accordance with human language is correct in this case, because his final case should not be more rigorous than the beginning. In the beginning if he had killed a man intentionally he is put to death, and if unintentionally he is exiled; and the same is to be his final case: if he goes out of the limit intentionally, he is killed; but if unintentionally, he must be returned to his exile.

If a father has killed a son unintentionally, his other son may be considered the avenger in accordance with one Boraitha; another Boraitha, however, states that he must not be so considered. Shall we assume that one is in accordance with R. Jose and the other with R. Aqiba? How can such be borne in mind? Is it not decided (Sanhedrin, p. 246) that a son must not be appointed by the court to punish his father with whatsoever punishment, etc.? Therefore, we must say that one Boraitha speaks of his son, and the other of his grandson.

MISHNA VIII.: A tree placed in the limit, but its branches extending outside of it or vice versa, in any case the inclination of the branch must be considered.

GEMARA: There is a contradiction from the following: A tree which stands inside but is inclined outside, or vice versa if from opposite the surrounding wall and inside, it is considered as inside; and if the same were inclined outside it is considered as outside? Do you contradict tithe with cities of refuge? Concerning tithe the Scripture relies upon the surrounding wall of the city, but concerning the cities in question it relies upon the dwelling, and one can use his dwelling under the branch but not upon the root of a tree. Rabh Ashi explains the expression of the Mishna, "the inclination of the branch must be considered," with also, i.e., the inclination must also be considered, and so much the more the root of it.

MISHNA IX.: If one killed accidentally in the city of refuge, he is to be exiled from one neighborhood to another; and if such happen to a Levite, he is to be exiled from one city to another.

GEMARA: The rabbis taught: It reads [Ex. xxi. 13]: "Will I appoint thee a place," etc., i.e., while thou art still alive. "Whither he shall flee" signifies that if such happen while Israel was still in the desert, they were exiled. And where to?--to the camp of the Levites. From this it was said that if it happen to a Levi that he killed, he is exiled from one district to another; and even if he was exiled to the district in which he resides, it protects him. And R. A'ha b. R. Aika said: This may be inferred from [Numb. XXXV. 28]: "Because in the city of his refuge shall he remain," i.e., "his refuge" means which was his before he was exiled.

MISHNA X.: Similarly, if a murderer was exiled to the city of refuge and the townsmen like to honor him, he has to say to them: "I am a murderer"; and if they say it does no-t matter, he may accept. The exiled have to pay to the Levites rent for their dwellings. So R. Jehudah. R. Mair, however, said: They have not. If, after the high-priest's death, he returns to his city, he is returned to that office which he occupied before (e.g., head of a college), according to R. Mair. R. Jehudah, however, maintains: He must not occupy the same.

GEMARA: Said R. Kahana: The Tanaim of the Mishna differ concerning the rent in the six cities in question only, for one explains the expression "unto you" to mean for protection only, and the other one explains it "unto all Your necessities." However, on the addition Of 42 cities all agree that they have to pay rent. Said Rabha to him: There cannot be any doubt in the explanation of "unto you," which certainly means to all your necessities, and therefore it is the contrary: they differ concerning the 42 cities; the one holds they were added only for protection, and the other holds they were added on equal terms with the six; but concerning the six themselves all agree that there was no rent.

"He returns to his office." The rabbis taught: It reads [Lev. xxv. 41]: "And he shall return unto his own family, and unto the possessions of his father shall he return," i.e., he may return only to his family, but not to the office which his parents occupied. So R. Jehudah. R. Mair, however, said he may return to the offices of his parents, and the same is the case with exile. And this is inferred from the pleonastic words, "shall he return." What does it mean, "the same is with exile"? As the following Boraitha: The murderer shall return to the land of his possession, i.e., he may return only to the land, but not to the office of his parents. So R. Jehuda. R. Mair, however, maintains: He may also occupy the place of his parents, because of the analogy of expression "return," which is mentioned in both places, Ex. xxi. and Numb. xxv.

WHO IS SUBJECT TO THE PUNISHMENT BY STRIPES.--THE DETAILS OF THE PROCEDURE REGARDING THE EXECUTION THEREOF.--WHAT CIRCUMSTANCES FREE THE CULPRIT THEREFROM.--THE RESPECTIVE DUTIES OF THE THREE JUDGES WHO MUST WITNESS THE EXECUTION.

MISHNA I.: To the following stripes apply: He who had intercourse with his own sister, with his sister of his father or his mother, or the sister of his wife, with the wife of his brother or his father's brother, or with a woman while menstruating. (To each of these crimes Korath--shortened life--applies, and according to this Mishna the human court has a right to punish them also with stripes.) The same is the case if a high-priest marries a widow; a common priest--a divorced or her who performed the ceremony of Halitzah; an Israelite--a bastard or a descendant of the Gibeonites; and the same is, if a daughter of an Israelite marries the just-mentioned persons. If a high-priest marries a widow who was previously divorced, he is to be beaten twice, because of two names ("widow" and "divorced"); if, however, a common priest marries a widow who has previously performed the ceremony of Halitzah, he is liable only for the violation of one negative. A high-priest who was unclean and partook of things belonging to the sanctuary or entered the sanctuary while unclean; and he who consumed illegal fat, blood, or meat left overnight from the sacrifice, or piggul, or unclean meat, and also of such which was slaughtered and brought outside of the Temple; he who ate leaven on Passover, ate or labored on the Day of Atonement; who compounded oil similar to that of the Temple, or compounded the frankincense of the Temple, or anointed himself with the oil used in the Temple; who ate carcasses or animals preyed by beasts, or reptiles--to all of them stripes apply.

It applies also to him who partook of mixture, of first tithe of which the heave-offering was not separated as yet, of second tithe and eatables belonging to the sanctuary which were not redeemed yet. How much has one to partake of the mixture to make him liable? According to R. Simeon, whatsoever; while to the rabbis, not less than the size of an olive. Said R. Simeon to the sages: Do you not admit that if one consumed an ant--minute as it is--he is culpable? And he was answered: Because it is a creature in itself. Rejoined he: One grain of wheat is also complete as to its creation.

GEMARA: The Mishna treats of those crimes to which Korath applies, but not of those under the category of capital punishment. Hence it is in accordance with R. Aqiba of the following Boraitha: Crimes under the category of Korath, as well as under that of capital punishment, are also punished with stripes if they were so warned. So R. Ismael. R. Aqiba, however, maintains: Only that of Korath; because if they repent after the punishment with stripes, the heavenly court forgives them; but if they are under capital punishment the human court cannot forgive them even though they repent. What is the reason of Ismael's theory? [Deut. xxviii. 59]: "Then will the Lord render peculiar thy plagues," etc. What the peculiarity is, is not stated; however, from [ibid. xxv. 2]: "The judge shall cause him to lie down" (the expression of which has a similarity), we understand that the peculiarity is stripes; and in [ibid. xxviii. 58] it reads: "If thou wilt not observe," etc.; hence the violation of all negative commands is punished by stripes. But if so, let them apply also to the violation transgression of a positive commandment? It reads: "If thou wilt not observe." R. Aqiba's reason is: concerning stripes the expression is "according to the degree of his fault," which means for one fault, but not for two faults, to which capital punishment applies.

"Things belonging to the sanctuary," etc. It is correct, the transgression of entering the sanctuary of which the punishment as well as the warning is stated--viz.: the punishment [Numb. xix. 13]: "Hath defiled the tabernacle of the Lord; and that soul shall be cut off from Israel," and the warning [ibid. v. 3]: "That they defile not their camp"; but concerning eating sanctity, we find the punishment [Lev. vii. 20]: "The flesh... his uncleanness upon him... shall be cut off." But where is the warning to it? According to Resh Lakish from [ibid. xii. 4]: "Any thing hallowed shall she not touch"; and R. Jehanan said: Bardelah taught: From an analogy of expression "his uncleanness" here, and the same expression is found in the above quotation [Numb. xix.]. As there the punishment and the warning are stated, the same also applies to this case.

There is a Boraitha in accordance with Resh Lakish: "Hallowed shall she not touch" is a warning to the consumer. You say consumer, but perhaps it means literally (touching); therefore it reads further on, "into the sanctuary shall she not come," etc. Hence hallowed is compared to the sanctuary. As to the transgression of the sanctuary Korath applies, so also the warning concerning the hallowed must speak of a similar punishment (i.e., consuming). But not of touching, to which Korath does not apply.

Rabba b. b. Hanna in the name of R. Jehanan said: To a negative command which is preceded by a positive one, stripes apply. There were people who questioned R. Johanan whether he said so, and he answered: Nay! Said Rabba: I swear that he said so, and it is also written and taught; "written" [Numb. v. 3]: "Shall ye send out... that they defile not their camps"; and "taught" in our Mishna: A defiled person who enters the sanctuary gets stripes. But why did R. Johanan retract his previous statement? Because the case of a seducer was difficult to him--namely, a seducer who had divorced his seduced wife, if he is a common Israelite, remarries her, but is not punished with stripes; if he, however, was a priest (who is forbidden to marry a divorced woman), he gets stripes and does not remarry. Now, as in this case, the negative command: "That he must not divorce her all his life" is succeeded by the positive command: "That he shall marry her," why, then, should not a common Israelite be punished with stripes for divorcing her? Said Rabha: The reason why he does not get stripes is that the positive "He shall remarry her" rests upon him all his life. (This is inferred from the words "all his days," which, if they were not explained that in case he has divorced her he shall remarry her, would he superfluous; with the explanation, however, the command, "He shall remarry her," is attached to the negative "He shall not divorce her"; and there is a rule that to a negative command which is succeeded by a positive, no stripes apply.)

And when Rabbin came from Palestine he said the same in the name of R. Johanan. Said Rabh Papa to Rabha: Why did R. Jehanan say above that he gets stripes? The negative in question is not similar to the negative of "muzzling" (which was said that it is placed there to teach that only to such which is not succeeded by a positive stripes apply)? Rejoined Rabh Papa: Should the negative become weaker because of the succeeding positive? Answered Rabha: According to your theory stripes should apply to each negative which is succeeded by a positive, which is not the case. Said Rabh Papa again: There it is different, as the positive usually comes to remove the negative (i.e., one shall not do so, but if he did, shall he do so and so). But Rabha's explanation holds good only according to him who holds that the culprit does not get stripes unless he abolishes the succeeding positive command. (Le., the seducer who has divorced his wife may always say: "I will remarry her." Hence the positive is not abolished, and therefore he is not liable. But according to him who holds that only then is he free from stripes when he fulfils the command (i.e., if he comes to the court, which commands him to marry her immediately, and if he does not listen he gets stripes). Hence, you cannot say that this positive rests upon all his life, and consequently it does not modify its preceding negative? Let us see: this objection applies only to Johanan's foregoing theory, and he said to the disciple who has repeated before the Boraitha concerning a positive which succeeds a negative: "Go and teach thus: Only when he has abolished the succeeding one, but not otherwise." R. Simeon b. Lakish, however, differs, and says: He is free from stripes only when he has fulfilled the succeeding one.

What is their point of difference? A doubtful warning--e.g., in the case in question, if he was warned that he shall not divorce her, it was still doubtful whether after divorcing he will not remarry her; hence such a warning is not considered certain. But, nevertheless, according to R. Johanan it suffices, so that he may be punished; but according to Resh Lakish he is not. And both differ in the explanation of R. Jehudah's theory in the following Boraitha: It reads [Ex. xii. 10]: "And ye shall not let anything of it remain until morning; and that which remaineth of it until morning ye shall burn." We see, then, that the verse comes to place a positive after a negative for the purpose that if one did leave he shall not be punished, and has only to burn it. Such is the decree of R. Jehudah. R. Johanan explains R. Jehudah's words thus: The reason why he does not get stripes is the succeeding positive, but if it were not he would be punished, although the warning was doubtful, as he could thereafter burn it. Resh Lakish, however, explains it thus: The reason why he does not get stripes is the succeeding, but if it were not he would get stripes, as to a negative command that does not contain manual labor, stripes do apply. But let us see: Resh Lakish cannot deny that such a warning was a doubtful one, and R. Johanan cannot deny that such a negative does not concern manual labor; what, then, is the use of their explanation?

Both agree that, if not for the succeeding, stripes would apply; notwithstanding that there were both a doubtful warning and a positive of no manual labor. Resh Lakish shares the opinion of R. Jehudah of another Boraitha (Chulin 82, b.), in which R. Jehudah admits that a doubtful warning is not considered; and R. Johanan holds with R. Jehudah of the following: R. Idi b. Abin in the name of R. Amram and R. Itz'hak, quoting R. Johanan, said: R. Jehudah in the name of R. Jose the Galilean declared that for the violation of all the negatives of the Torah, if there be manual labor implied, the transgressor is punished with stripes, but not if mental, except in the cases of an oath, exchanging, and cursing his neighbor by the Holy name. But if so, then, R. Johudah contradicts himself? Resh Lakish may say that there are two Tanaim who said in the name of R. Jehudah differently, and R. Jehanan may say that in the latter Boraitha R. Jehudah declared the theory of his master, but his own opinion he declared in the former Boraitha.

There is a Mishna: He who took the mother-bird with her children gets, according to R. Jehudah, stripes, but is not obliged to send away the mother-bird; and according to the sages, he sends away, but is not punished with stripes; as the rule is: for a negative which is conjoined with a positive there is no liability. Said R. Johanan: There is only one more case similar to this. And to the question of R. Elazar, What is it? he rejoined: Go and find out! He did so and found the following: "If a seducer has divorced," etc., v. above, p. 37. But this can be correct only with him who holds that he is released from stripes after the fulfilment of the positive only. But according to him who holds that stripes do not apply unless the positive is abolished, such can be done only with the former mother-bird by killing her, as then the positive he "shall send her away" is abolished. But how can such be found in the case of the divorce in question; and should you say that he killed her, then he deserves capital punishment; and there is a rule that stripes do not apply to him who is to be executed? Said R. Simi of 'Huznah: "E.g., he accepted betrothal money for her from some one else, hence she becomes the wife of another, and the positive "he shall remarry" is abolished. Said Rabh: Such cannot be considered; as in case she made him her messenger to accept the above, she may ignore the message; and, if he did it without asking her who gave him the right to such that it should be considered?

Therefore said R. Simi of Nehardea: If, e.g., he has made a vow publicly that he must not derive any benefit from her (and such a vow cannot be absolved), hence the positive is abolished and he is liable. Are there indeed no more similar cases to those by R. Johanan stated? Is there not robbery to which it reads, "Thou shalt not steal," and the positive "He shall return it," and also concerning a pledge to which the negative is, "Thou shalt not come to pledge," and the positive is "Thou shalt return the pledge at sunset"? And these two cases also can be explained in both ways: Fulfilled the positives or not, abolished the positives or not? With these cases it is different, for he has to pay, and there is a rule: He who pays does not get stripes. But is there not "Peah," the negative of which "thou shalt not cut... the corners" and the positive "unto the poor... leave" [Lev. xxiii. 22], which also may be explained in both ways as said above? Therefore we must say that R. Jehanan by his statement, There is only one similar case, meant "Peah" and not a seducer; since concerning the latter the Law dictates that even if there were a vow on the mind of the public it can be absolved when such absolution is necessary to a meritorious act; as it happened with a children-teacher who struck too much the children and R. A'ha excommunicated him, Rabbina, however, returned him, because he could not find as good a teacher.

"Carcasses preyed," etc. Said R. A'ha: He who neglects nature's duties when called, transgresses the negative "ye shall not make your souls abominable" [Lev. XX. 25]. And R. Bibi b. Abayi said: He who drinks water from the horn of a barber transgresses the same.

"Partook of mixture, first tithe," etc. R. Bibi in the name of Resh Lakish said: They differ only in case he take a grain of it, but as regards flour all agree that the size of an olive is needed., R. Jeremei in the name of same authority, however, said: As they differ in respect of wheat so they do in that of flour too. An objection was raised from our Mishna. R. Simeon said to them: Do you not agree if he ate an ant, etc., and to the answer of the rabbis "because it is a creature" he rejoined, A wheat grain is also complete in its creation, hence we see that they only differ in respect of the grain, but not in that of flour? R. Simeon meant to say thus: According to my opinion it is the same with flour, but to your theory, admit that if he ate a grain of it he shall be culpable, because of its completeness. The rabbis, however, maintain: We cannot compare a grain to a living creature. There is a Boraitha in accordance with R. Jeremei: R. Simeon said concerning stripes: Size does not count; it counts only concerning sacrifices.

MISHNA II.: Stripes also apply to the following: To him who partook of the first fruit before the ceremony of reading was performed; of the sacrifices under the category of the most holy outside of the curtains, and of those under the category of a minor grade or of second tithe outside of the surrounding wall; and also to him who breaks a bone in the Paschal Lamb if it was a clean one. However, if he left from a fit one, or broke a bone of an unfit one, stripes do not apply.

To him who takes a mother-bird with her children from her coop according to R. Jehudah stripes apply, but he is not obliged to send the mother away, and according to the sages he must send her away and stripes do not apply, according to the rule: If a positive succeeds a negative, no stripes apply.

GEMARA: Said Rabba b. b. Hana in the name of R. Johanan: Our Mishna is in accordance with R. Aqiba, whose name is omitted, as it is one of the many anonymous Mishnayoth which bear his opinion without mentioning his name. The sages, however, maintain that concerning first fruits, their placing on the Temple is the main thing, but the ceremony of reading is no obstacle. But why not say that it is in accordance with R. Simeon, to whose opinion, also, most of the Mishnayoth were composed anonymously? This comes to teach that R. Aqiba is in this respect in accordance with R. Simeon. Which R. Simeon? Of the following Boraitha: It reads [Deut. xii. 17]: "And the heave-offering of thy hand," which means the first fruits; said R. Simeon: What does this come to teach us? If only that they must not be eaten outside the surrounding wall, it was not necessary at all, as this could be inferred from tithe, regarding which the law is more lenient, by drawing a fortiori conclusion: If one consumes tithe regarding which the law is lenient, outside of the wall, he gets stripes, so much the more when he consumes first fruits, concerning which case the law is more rigorous; therefore we must say that the verse means to include him who had consumed them before the ceremony of reading was performed. And "thy freewill-offering" [ibid., ibid.], means thanks and peace-offerings. R.

Simeon, however, said: The verse does not mean them, as it was not necessary to teach that they must not consume outside of the wall, for the same reason that they could be inferred from the leniency in tithe by the same a fortiori reasoning. Therefore it means him who consumed of same sacrifices before their blood was sprinkled. And "first born" means literally. Said R. Simeon: If it meant so, it was not necessary either, as this could likewise be inferred by a fortiori reasoning from tithe; and if it means: who commanded them before blood-sprinkling, it was also not necessary, as it could be inferred from the above-mentioned sacrifices by a fortiori reasoning, as they are more lenient than the first born. Therefore we must say that it means to include him who consumes a first born even after its blood was sprinkled. "Thy herds or of thy flocks" means sin and transgression-offerings. R. Simeon, however, said: That if it meant them, it would not be necessary, as they could be inferred by a fortiori reasoning from tithe; thanks and peace-offerings, and first born, all of which are more lenient than that of sin and transgression. Therefore it means to include him who consumed from the latter even after sprinkling outside of the curtain. "Nor any of thy vows" means burnt-offerings. Said R. Simeon: It would not be necessary, as they could be inferred by a fortiori reasoning from all those cases mentioned above, and therefore it means to include him who consumes from a burnt-offering after sprinkling even inside the curtains, that he get stripes. Said Rabha: Every mother should bear a son like R. Simeon; although his theory can be objected to.

It was taught: R. Gidel in the name of Rabh said: A stranger who had consumed sin- and transgression-offerings before their blood was sprinkled, is free from any punishment, because it reads [Ex. xxix. 33]: "And they shall eat those things wherewith the atonement was made to consecrate them, and to sanctify them; but a stranger shall not eat thereof, because they are holy." Now as the sprinkling of blood only atones, they can be considered holy only after the sprinkling w performed, but before this act they are not considered as yet holy; so that the negative "one shall not eat because they are holy" does not rest upon the consumer.

R. Elazar said in the name of Hosea: Concerning the first fruit, placing it in the Temple is the main thing, and not the ceremony of reading, as it is not considered the final act. In this case the following Tanaim differ [Deut. xxvi. 10]: "Thou shalt set it down before the Lord," i.e., lift it up (before the Lord in all four directions). But perhaps it means literally, to place it? This is already written in verse (9). So R. Jehudah. R. Eliezer b. Jacob, however, maintains: This means literally (hence, this is the main act which completes the ceremony prescribed to first fruit); lifting up, however, he infers from [ibid., ibid. 4]: "And the priest shall take the basket out of thy hand," i.e., that the priest shall lift it up towards all four directions. His reason is based on the analogy of expression "hand," which is also mentioned concerning peace-offering [Lev. vii. 30]: "His own hands shall bring it." And as there lifting up is needed by both the ripest and the owner of the offering, so also here the hands of both are needed. How so? The priest places his hand under those of the owner, and the two lift it up together.

Rabha b. Ada in the name of R. Itz'hak said: One is culpable for the first fruits immediately after they have seen the face of the Temple; and it is in accordance with the Tana of the following Boraitha: R. Eliezer said: Of the first fruit, a part of which was outside and a part inside, that of outside is considered common in all respects, while that of inside is considered holy in all respects. And R. Shesheth said: Only the placing is the main act of the ceremony and not the reading.

"Most holy," etc. But why the repetition? It has been already stated with regard to second tithe and things of the sanctuary which were not as yet redeemed? Said R. Jose b. Hanina: The second part of the Mishna treats of a case when both were pure--and the man and the second tithes which were consumed outside of the wall, and the first part speaks of the case when both were defiled, and that he consumed them within the city. And whence do we know that one is culpable because of defilement? From the following Boraitha: R. Simeon said [Deut. xxvi. 14]: "Neither have I removed thereof while unclean," means neither when I was unclean and they were clean, nor vice versa. R. Eliezer said: Whence do we know that second tithe which became defiled may be redeemed even within Jerusalem! From [Deut. xiv. 24]: "Not able to carry it," which means also when it was not fit for eating, as the expression for carrying is "sheath" and in [Gen. xliii. 34], a similar expression is used for eatables. R. Bibbi in the name of R. Assi said: From the just-cited verse is to be also inferred that even one step outside the wall one may redeem the second tithe, if it is too heavy for him to carry it further. R. Hanina and R. Hosea, while sitting together propounded the following question: How is it if he was already within the gate of the wall in such a position that he was already inside but his load was outside--may he redeem it at that place or not? A certain old man then taught them in the name of R. Simeon b. Jo'hai: It reads [Deut. xiv. 24]: "Is too far from thee," means from the full extent of your capacity (and as he is already within the gate it can, not be considered far any longer, etc., and is not to be redeemed). R. Assi said in the name of R. Jehanan: The culpability for second tithe arises only after it has seen the face of the wall of Jerusalem, and the reason is [ibid. xii. 12]: "But before the Lord thy God must thou eat them," and (17): "Thou mayest not eat within thy gates"; hence, only at that time when the positive "before thy Lord must thou eat them "can be fulfilled, the negative: "Thou mayest not eat," etc., applies, but not otherwise.

MISHNA III.: He who makes a baldness in the hair of his head, or rounds it; he who destroys the corners of his beard, or makes incisions in his flesh for his dead, is liable. There is no difference whether he made one incision for five dead bodies or five incisions for one dead body, as in either case he is liable for five negatives. For rounding his hair he is also liable for two (one for one corner on one side, and another for the other corner on the other side; and for his beard five, for there are five corners. R. Eliezer, however, maintains that if he took off the whole beard at one time he is culpable only for one. The culpability arises only, then, when he took it off with a razor. R. Eliezer, however, maintains that the same is the case if he took it off with snuffers or a scraper (an instrument with which the hairs are removed singly).

GEMARA: The rabbis taught [Lev. xxi. 5]: "They shall not make any baldness," lest one say that if one made several baldnesses in his head he is culpable only for one, therefore it reads, "any baldness" (i.e., culpable for each one). And to what purpose is it written "upon their head"? Because [Deut. xiv. i], "Ye shall not cut yourselves, nor make any baldness between your eyes for the dead." Lest one say that be is culpable only when he did so between the eyes, therefore "their head" to include any place of the head. From here, however, we know that priests only are forbidden to do so, as they are subject to many commands which do not apply to a common Israelite; whence do we know that the same is the case with the latter? From the analogy of expression "baldness" in both verses; as in the first he is culpable for each baldness in the head as for that between the eyes, the same is the case with an Israelite. And as in [Deut. xiv.] it says plainly "for the dead," so also in [Lev.] it means for the dead only.

What should be the size of the bald spot which would make him culpable? The size of a bean according to R. Jehanan in the name of R. Eliezer b. R. Simeon. R. Huna, however, said: Such a size which could be discerned. R. Jehudah b. 'Habibah said: In this three Tanaim differ. According to one it is the size of a bean, according to the other it is a discernible size, and the third, however, maintains that he is culpable even for two hairs. Some, however, say: Instead of two hairs, it must be of the size of a lentil.

"He who rounds," etc. The rabbis taught [Lev. xix. 27]: "Ye shall not cut round the corners of your head" means the end of his head, i.e., who makes his temple as hairless as the spot back of his cars to the nape of his neck. A disciple taught before R. Hisda: Both are culpable, he who rounds, and the rounded one. To which R. Hisda answered: Should he who eats dates from a sieve be culpable? Your Boraitha is in accordance with R. Jehudah, who holds that to a negative which does not contain manual labor, stripes apply (with whom the Halakha does not prevail). Rabha, however, says: It speaks that he himself has rounded his hair, which case all agree that he is culpable. And R. Ashi said: Even if he only assists the one who rounds his hair.

"And he who destroys the corners of his beard." The rabbis taught: "The corners of his beard," means the end of it; and what is meant by the end? The Shibboleth (sheaves).

"Incisions," etc. The rabbis taught [Lev. xix. 28]: "For the dead... any incision," lest one say that he made such because of the fall of his house or because the ship sank, therefore "for the dead," to teach that he is culpable only if he did so for a dead. And whence do we know that if he made five incisions for one dead he is culpable for each one? From "any incision" which makes him culpable for each of them. R. Jose said: Whence do we know that if he made one incision for five dead he is culpable for five? From the expression "l'Nefesh" (soul) i.e., he is culpable for each soul. But does not the same passage exclude the case when he did so for "his house" or "ship," etc.?

R. Jose holds that "cut" in Deut. iv. and incision is one and the same, and there also reads "for the dead," hence this also may be inferred.

Samuel said: If one made an incision with an instrument he is culpable. An objection was raised from the following: Incision and cutting is one and the same (but incision means with the hand and cutting with an instrument), hence for an incision with an instrument he should not be culpable? Samuel holds in this respect with R. Jose that there is no difference at all.

A disciple taught before R. Jehanan: For dead he is culpable at all courts whether 'by hand or instrument, but if for an idol, by an instrument he is culpable, but not by hand; as it reads [I Kings,. xviii 28]: "And cut themselves after their custom with knives."

"Culpable only for one," because he holds that he transgressed only one negative command. "With a razor." The rabbis taught [Lev. xxi. 5]:"The corner of their beard shall they not shave off," i.e., with a razor. But lest one say even with scissors he shall be culpable, therefore it reads [ibid. xix.], "thou shalt not destroy." But if so let him be culpable for destroying it even with snuffers or scrapers? therefore the expression "shave off," and destroying by shaving is brought about by a razor.

"R. Eliezer," etc. From whatever opinion he start: if he cares for the analogy of expression, then it is with a razor only; and if he does not, let him be culpable even if he did it with scissors? He cares for the analogy, but to his opinion snuffers and scrapers are equivalent to a razor.

MISHNA IV.: The culpability for etching-in [Lev. xix. 28] arises only when he has done both, wrote and etched-in with dye or any other indelible thing, but to one of them no culpability attaches. R. Simeon b. Jehudah in the name of R. Simeon said: He is not culpable unless he etched-in the holy name; as the above-cited verse reads, "and any etched-in writing shall you not fix on yourselves: I am the Lord."

GEMARA: Said R. Aha b. Rabha to R. Ashi: Does it mean unless he etch-in the words "I am the Lord"? And he answered, Nay! It is as Bar Kapara taught: "He is not culpable unless he writes the name of an idol, as the words "I am the Lord" mean I am the Lord, but not another one.

R. Malkhiya in the name of R. Ada b. Ahaba said: One is forbidden to put ashes upon his wound in the flesh, because it looks like a tattooing. [Said R. Papa: Throughout both Mishna and Boraitha, the name Malkhiya when mentioned is Malkhiyah, but in Halakhas it is Malkhiyoo]. R. Ashi, however, said: It does not matter, as the wound shows there is no tattooing.

MISHNA V.: A Nazarite who was drinking wine the whole day, is culpable only for one negative. If, however, he was warned, Do not drink, do not drink! he is culpable for each time he does not listen to. The same is the case if he had defiled himself by touching dead the whole day, he is culpable for one only; but if he was warned, You must not do so! etc., he is culpable for each one. The same is also the case with shaving himself. If he did so the whole day without warning he is culpable for one only, if with warning, for each time warned. A similar case this: If one was dressed with Kelaim, he is culpable for the whole day only once; but if he was told not to dress himself with it, and he undresses and redresses, he is liable for each time. There is an instance that one may plough only one bed and shall be culpable for eight negatives--viz: If he ploughs with an ox and an ass both of which were from the sanctuary, if there was Kelaim in a vineyard, if that occurs in the Sabbatical year and on a legal holiday, and, finally, if he is a priest or a Nazarite in a legally unclean place. Hanania b. 'Hakhinai said: It can be added to that "who at the same time was dressed with Kelaim." And he was answered: This is not under the category of ploughing. Rejoined he: Does, then, a Nazarite belong to this category?

GEMARA: Said R. Bibi in the name of Rabh Assi: Not only when he undresses and redresses himself entirely, but even when he put his sleeve in and out. And R. Aha b. R. Aika has shown that he puts in the sleeve and puts it out. But R. Ashi maintains that it means the time during which he could put in and out.

"Ploughing one bed," etc. Said R. Yanai: At a meeting there was voted and resolved that he who protects Kelaim is liable to stripes. Said R. Jehanan to him: Is this not explained in our Mishna, which mentions that there was Kelaim in the vineyard? And if one were not culpable for protection what would have the ploughing to do with it? You must, then, say that while ploughing he protects it, and the Mishna makes him culpable. Rejoined R. Yanai: If I had not uncovered for you the broken clay pot, you would surely not have the pearl which was lying under it. Said Resh Lakish to R. Jehanan: Would not such a great man praise your statement? I would say that our Mishna is in accordance with R. Aqiba, who holds that one is liable even for keeping it. Said Ula to R. Na'hman: After it was decided that protecting is the same transgression as sowing, let him also be culpable for sowing on a legal holiday? And he answered: It was left out by the Tana of the Mishna. Rejoined he (Ula): It numbers eight, consequently nothing was left. Said Rabha: The different kinds of labor in one article are considered with respect to Sabbath only, but not to holidays. And Ula said: (I also think) so it is.

MISHNA VI.: The number of stripes is forty less one, as it reads [Deut. xxv. 2, 3]: "By a number, forty," i.e., near forty. R. Jehudah, however, said: Forty in full, and the fortieth is between his shoulders. The examination (by the physicians of the court) as to the number of stripes he can receive and remain alive, must be such that can be equally divided by three. If the decision was that he is able to receive forty, but after receiving a part of them they saw he cannot stand any more, he is free. However, if the decision was, he can stand eighteen only, and after he was stricken they saw he is able to receive more, he is nevertheless free.

GEMARA: The reason of the statement of the Mishna is the expression "number," which is before the word "forty," and is to be interpreted "about" forty; for if it meant forty in full, it would state forty in number. Said Rabha: How foolish are those who arise before the Holy Scrolls, but do not do so before a great man. We see that in the Holy Scrolls it reads forty, and the rabbis came and reduced one.

"R. Jehudah said," etc. What is his reason? Said R. Itz'hak [Zech. xiii. 6]: "What are these wounds between thy hands," etc. The rabbis, however, maintain that this passage speaks of school-children.

"After he was stricken," etc. Is that so? Does not a Boraitha state that if the first decision of the physicians was that he can receive forty and thereafter they decided again that he can not, or the first decision was for eighteen, and the second states that he is able to receive forty, he is free. (Hence we see that even if he was not stricken but only examined, he is free.)

Said R. Shesheth: This presents no difficulty. Our Mishna speaks of the decision rendered on the very same day on which he ought to be beaten, and by acting accordingly it was found that they erred; hence in the first instance he is freed because he cannot stand, and in the second, because he was already disgraced and freed we do not care to disgrace him again. The Boraitha, however, speaks that the examination was several days before, and when the day of punishment came, the decision was changed because of his health.

MISHNA VII.: If one commits a sin to which two negatives apply, if the decision was rendered once for both negatives, he is punished once only, but if for one negative, he is punished again after he has recovered.

GEMARA: Is there not a Boraitha that one must not be appraised for two negatives? Said R. Shesheth: It presents no difficulty. Our Mishna speaks, if he was appraised for forty-one, i.e., for two negatives, and because it cannot be divided into three, their appraisement is annulled, and he receives only thirty-nine for both; and the Boraitha speaks of the case when be was appraised to receive forty-two for two negatives, and as it can be divided into three, the three over the thirty-nine are counted for the second negative. Hence he is beaten once, and after recovery is to be appraised again and beaten accordingly.

MISHNA VIII.: How is the punishment with stripes to be performed? He ties his both hands to the pillar, and the messenger of the court takes hold of his clothes, without care whether they tear or disjoin, until he uncovers the breast. The stone on which the messenger is to stand is placed behind him, upon which he stands with a strap of calf leather compounded of two, which, folded again, constitutes four, with two small stripes attached to it.

The size of its handle was a span, and of the same size was the width of it, and the top of it reaches his belly. He strikes him one-third in front and two-thirds on the back. He is not beaten while standing nor sitting, but while bending; as it reads [Deut. xxv. 2]: "The judge shall cause him to lie down," and the striker strikes him with one hand with all his force. And the reader reads from [ibid. xxviii. 58-59]: "If thou wilt not.... Then will the Lord render peculiar thy plagues," etc., to the end of the verse. And if the striker has not finished yet, he begins [ibid. xxix. 8]: "Keep ye therefore," etc., and finishes with [Psalm lxxviii. 38]: "But he, being merciful, forgave the iniquity." And if the act was not finished as yet, he returns to the beginning. If it happens that he dies under the messenger's hand, the latter is free. If, however, he added one stripe which caused death, he is exiled. If while beaten he collapsed and became incontinent of urine or excrement, he is freed. R. Jehudah maintains: A male, when incontinent of feces; and a female, of urine.

GEMARA: What is the reason that he shall be freed if he collapsed, etc.? His having been already disgraced.

R. Shesheth said in the name of R. Eliezer b. Azaria: Whence do we know that the strap must be of calf leather? Because immediately after "forty stripes" it reads, "thou shalt muzzle the ox." (See appendix.)

"Two small stripes," etc. In a Boraitha it is written from ass leather, and it is as a certain Galilean preached in the presence of R. Hisda [Isaiah, i. 3]: "The ox knoweth his owner and the ass his master's crib: Israel doth not," etc. The Holy One, blessed be He, said: "He that knoweth the master's crib shall take revenge from him who does not want to know it."

"One-third in front," etc. Whence is this deduced? Said be beaten before his face according to R. Kahana: From "to the degree of his fault," which means for one fault in the front and for two in the back.

"The striker strikes him with one hand," etc. The rabbis taught: The court appoints messengers who are weak in force but strong in wisdom. R. Jehudah, however, said: Even vice versa. Said Rabha: It seems to me that R. Jehudah is correct, because it reads "not more"; now if the messenger were weak in wisdom he must be warned, but if strong in wisdom, why warning? The rabbis, however, maintain the contrary, that warning is of consequence only to him who is learned to be careful. There is a Boraitha: When he lifts up, he does it with both hands, but strikes with one hand, so that the strokes shall become weaker.

"And the reader reads," etc. The rabbis taught: The chief of the judges reads; the second numbers, and the third says, strike! When the stripes are many he prolongs, and when less he shortens. But does not the Mishna state "he returns to the beginning of the passage"? It is better that the reading should be finished with the stripes; but if it was not, he returns. The rabbis taught: It reads [Deut. xxv. 3]: "Too many stripes"; but lest one say that one or two does not matter? Therefore is "not more"--not even one. But if so, to what purpose "too many stripes"? To teach that if it happen so, even the stripes which were given rightly are to be considered too many (in force).

"Collapsed," etc. The rabbis taught: A male as well as a female "in feces," but not "in urine." So R. Mair. R. Jehuda said: A male "in feces" and a female "in urine." The sages, however, maintain: There is no difference between male and female, and between feces and urine; at all events the beaten is to be freed. But is there not a Boraitha: R. Jehudah said: Male and female in feces? He meant to say that in such a case all agree, but concerning incontinence of urine there is a difference of opinion.

Samuel said: If after he has been tied, he succeeds to run away from the court, he is free. An objection was raised from the following: Collapsing frees one whether it happen at the first stroke or the second, but if the strap broke he is free only if it happened at the second, but not at the first. Now, why should this not be equivalent to running away, which frees even before the first strike? This is no objection, when he runs away he could not be beaten (and as he was already disgraced, he is not taken to be disgraced again), but here he is still present.

The rabbis taught: If it was concluded by the examination that he will collapse in case he is beaten, he is to be freed; but if the conclusion is that he will collapse after having been beaten, it does not free him. Furthermore, if it happen that he collapse before he was taken to be beaten, it does not prevent after recovery; because it reads [Deut. xxv. 2, 3]: "And to be beaten... and... thus rendered vile," but not rendered vile before beaten.

MISHNA IX.: All who are liable to Korath, if beaten, are freed from it, as it reads [ibid., ibid. 3]: "Thy brother rendered vile," i.e., as soon as he was rendered vile, he is thy brother. So R. Hananye b. Gamaliel; the same also said: If one loses his soul for one sin, so much the more his soul should be saved because of one meritorious act! Said R. Simeon: This may be inferred from the very place which treats of Korath [Lev. xviii. 29]: "Even the souls that commit them shall be cut off," and [ibid., ibid. 5]: "Ordinances, which, if a man do, he shall live in them." As the whole portion is of negative commands, it is to be inferred that if one only abstains from committing a crime, he is rewarded as if he acted meritoriously. R. Simeon b. Rabbi said: It reads [Deut. xii. 23]: "Be firm so as not to eat the blood; for the blood is the life." Now, for rejecting blood which is disgusting to one, he is rewarded; from money and women, to which the nature of man is inclined, so much the more should he be rewarded if he separates himself; and not only he, but all his descendants to the end of the generations, may be rewarded. R. Hanania b. Akasiha said: The Holy One, blessed be He, wanted to make Israel blissful and therefore he multiplied to them his commands in the Torah, as it reads [Isaiah, xlii. 21]: "The Lord willed (to do this) for the sake of his righteousness: (therefore) he magnifieth the law, and maketh it honorable."

GEMARA: Said R. Jehanan: The colleagues of R. 'Hananye differ with him (as according to them stripes do not substitute Korath). Said R. Ada b. A'haba in the name of Rabh: The Halakha nevertheless prevails with R. Hananye. Said R, Joseph: Who, then, ascended to heaven, returned, saying that the Halakha prevails with him? Said Abayi to him: According to You, that which was said by R. Jehoshua b. Levi, "three things were done by the human court, and the heavenly court agreed with it," is also to be questioned: who ascended to heaven and convinced himself that it was so? but such is inferred from the Scripture; well, the same is here, too. What are the three things in question? The following: The reading of the Book of Esther on Purim, greeting with the Holy Name, and placing the tithe belonging to the Levites in the treasury of the sanctuary. The first (Book of Esther) from [Esther, ix. 27]: "The Jews took it upon themselves as a duty and accepted," means, they took upon themselves in their human court, and it was accepted in the heavenly court. "Greeting" from [Ruth, ii. 4]: "And he said unto the reapers, the Lord be with you," and also [Judges, vi. 12]: "The Lord is with thee." To what purpose is the second quotation? Lest one say that Boas did it according to his own opinion and without the admission by heaven, therefore the other quotation which was said by an angel. And concerning tithe from [Malachi, iii. 10]: "Bring ye all the tithes into the storehouse, that there may be provision in my house, and prove me but herewith, saith the Lord of hosts, if I will not open for you the windows of heaven, and pour out for you a blessing, until it be more than enough."

R. Elazar said: At three places the Holy Spirit appeared: At the court of Shem, of the prophet Samuel, and in the court of King Solomon. At the court of Shem [Gen. xxxviii. 26]: "And Judah acknowledged them and said, She hath been more righteous than I." And whence did he know it? Perhaps as he was with her, so was some one else? Therefore a heavenly voice was heard: I have decided that so is it to be. In the court of Samuel [I Samuel, xii. 5]: "And he answered, He is witness." He? they ought to be! Hence a heavenly voice was heard, I witness that so it is. And [I Kings, iii. 27]: "The king then answered and said, Give her the living child and do not slay it. she is its mother." And whence do we know it is so; perhaps she nevertheless deceived him? Hence the last words, "she is its mother," were said by a heavenly voice. Said Rabha: If it were inferred from the Scripture only, all of them could be objected to, but this is known by tradition.

R. Simlayi lectured: Six hundred and thirteen commands were said to Moses; three hundred and sixty-five of them negatives, corresponding to the number of days in a year counting according to sunrise; and two hundred and forty-eight positives, corresponding to the members of a man's body. Said R. Hamnunah: Where is there an allusion thereto in the Scripture? [Deut. xxxiii. 4]: "The Torah which Moses commanded us." The letters of the word Torah number six hundred and eleven (Tav is 400; Vov, 6; Reish, 200, and Hei, 5), and the two first commandments, however, of the ten, we ourselves have heard from Heaven. However, David came and reduced their number to eleven [Psalm xv. 2-5]: "He that walketh uprightly" means Abraham, to whom such an expression was said in [Gen. xvii. 1]: "Worketh righteously" means Aba A'helqiah (see Tainith, p. 66-68). "Speaketh the truth" as, e.g., R. Saphra. "Uttereth no calumny," i.e., Jacob, our father. "That doth no evil to his neighbor," i.e., he who takes care not to compete with his neighbor's business. "No reproach on his fellow man" means him who approaches his relatives. "Despicable is despised" means the king, who carried his father's bones on a bed of ropes. "Honoreth those who fear the Lord" means King Jehoshofath, who used to arise from his throne on seeing a scholar, kissed him, and called him, my father, my master, etc. "That sweareth to his own injury, and changeth not," i.e., as R. Jehanan said: If one says I will fast until I will come home, it is to be considered. "Money for interest," i.e., him who does not accept usury even from an idolator. "Taketh no bribe" means, e.g., R. Ismael b. Jose, who does not accept even his own goods from his gardener for the purpose that he shall try his case. "He that doth these things shall not be moved to eternity." [When R. Gamaliel used to come to this passage, he used to weep, saying: Who performed all this shall not be moved, but one of them does not suffice (see Sanhedrin, p. 237).]

Isaiah, then came and reduced them (the 613 commands) to six [xxxiii. 15]: "He that (a) walketh in righteousness, (b) speaketh uprightly, (c) despiseth the gain of oppressions, (d) shaketh his hands against taking hold of bribes, (e) stoppeth his ears against hearing of blood, and (f) shutteth his eyes against looking on evil." (a) Means Abraham, of whom it reads [Gen. xviii. 19]: "For I know him, that he will command," etc. (b) Means him who does not anger his colleague in public. (c) Means R. Ishmael b. Elisha. (d) R. Ishmael b. Jose. (e) R. Eliezar b. Simeon, and (f) means as R. Hiya b. Aba said: Who does not look on women washing near the bank of the river. (See last gate, p. 137.)

Michah came and reduced them to three [vi. 8]: "He hath told thee, O man, what is good; and what the Lord doth re quire of thee: (nothing) but to do justice, and to love kindness, and to walk humbly with thy God." "To do justice" means judgment; "love kindness" bestowing of favors; and "walk humbly," providing for burial of the dead and marriage of poor maidens.

Isaiah (the second) again reduced them to two [lvi. 1]: "Thus hath said the Lord, Keep ye justice and do equity."

Amos then came and reduced them to one [v. 4]: "Seek ye for me, and ye shall live."

R. Na'hman b. Itz'hak opposed: Perhaps he means seek for me to perform everything that is written in the Law? Therefore Habakkuk was the one who reduced them to one [ii. 4]: "The righteous should live with his faith." Said R. Jose b. Hanina: Four decrees Moses has decreed upon Israel, and four prophets came and abolished them. Moses said [Deut. xxxiii. 28]: "And then dwelt Israel in safety, alone," etc. Amos abolished it [vii. 5]: "How should Jacob be able to endure," then immediately in (6) "The Lord bethought... this shall not be." Moses said [Deut. xxviii. 65]: "And among these nations shalt thou find no ease." Jeremiah abolished it, saying [xxxi. 2]: "He is going to give rest to Israel." Moses said [Ex. xxxiv. 7]: "Visiting the iniquity of the fathers upon the children." Ezekiel abolished it by saying [xviii. 4]: "The soul which sinneth, that alone shall die." Moses said [Lev. xxvi. 38]: "And ye shall be lost among the nations." Isaiah abolished it by saying [xxvii. 13]: "The great cornet shall be blown," etc. Said Rabh, I am nevertheless afraid of the passage "ye shall be lost among the nations," and of the end of same, "the land of your enemies shall consume you." Marzutrah opposed, relating the following: It happened with Rabban Gamaliel, R. Elazar b. Azariah, R. Jehoshua, and R. Aqiba, who were on the road, and heard the noise of the city of Rome at Patlus, a distance of 120 miles, and they began to weep; but R. Aqiba smiled.

And to the question, Why are you smiling, he returned the question, Why do you weep; rejoined they: Those idolators who bow themselves to images and smoke frankincense to the idols are resting in peace, the contrary is with us, that even our holy Temple is burned by fire, and we should not weep? Rejoined he: For the same reason I am smiling. If such is done to them who act against His will so much the more will be done in the future to them who act in accordance with His will. It happened again that the same were going to Jerusalem, when they arrived to the Mount Zerphim, they tore their garments; and when they approached the Mount of the Temple and saw a fox running from the place where the Holy of Holies had been situated, they began to weep; but R. Aqiba smiled. To their question why he smiled, he answered: It reads [Isaiah, Viii. 2]: "Witnesses, Uriyah the priest, and Zecharyahu," etc. Why is Uriyah conjoined with Zecharyahu? Was not the former at the first Temple and the latter at the second? It was because the passage bases the prophecy of Zecharyahu upon the prophecy of Uriyah. Uriyah said [Micha iii. 12]: "Therefore for your sake shall Zion be ploughed up as a field," etc. Zechariah said [viii. 4]: "Again shall there sit old men and old women in the streets of Jerusalem," etc. Until the prophecy of Uriyah was not fulfilled I feared lest the prophecy of Zechariah will come to be realized but now since I see that Uriyah's prophecy is fulfilled I am sure that Zechariah's prophecy will also be fulfilled in the near future. Upon this version they said to him: Aqiba, thou hast condoled us, thou hast condoled us!

APPENDIX TO PAGE 50.

R. Shesheth said in the name of R. Eliezer b. Azariah: He who disgraces the festivals is regarded as if he worshipped idols, as it reads [Exod. xxxiv. 17]: "Thou shall not make unto thyself any molten gods," and immediately follows the verse "The feast," etc, The same said again in the name of the said authority: He who speaks evil of his neighbor, he who listens to such evil-speaking, finally he who bears false testimony deserves to be thrown to the dogs, as [ibid. xxii. 30] "to the dogs shall ye cast it," is immediately followed by [xxiii. 1] "Ye shall not spread (thisso) false report," which should be read also thassi, i.e., ye shall not excite one against the other.