Makkot 5b:17-20מכות ה׳ ב:י״ז-כ׳
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5bה׳ ב

אי איסטטית היא זו אפי' כת ראשונה נמי לא אמר ר' אבהו שקדמו והרגו

The Gemara asks: If Rabbi Yehuda states that this situation is a conspiracy, and there is suspicion that the second set is not truthful, let even the first set of witnesses who were rendered conspiring witnesses based on their testimony also not be executed. Rabbi Abbahu said: The mishna is referring to a case where the judges already executed the first set of witnesses. Rabbi Yehuda is saying that no witnesses are executed other than the first set of witnesses, who were already executed.

מאי דהוה הוה אלא אמר רבא הכי קאמר אם אינה אלא כת אחת נהרגת אי איכא טפי אין נהרגין הא בלבד קאמר קשיא

The Gemara challenges: If so, what was, already was; there is no point in stating it as a halakha. Rather, Rava said this is what Rabbi Yehuda is saying: If it is only one set of witnesses that is rendered conspiring witnesses by the second set, the witnesses are executed; if there is more than one set they are not executed at all. The Gemara asks: But doesn’t Rabbi Yehuda say: It is only the first set alone that is executed? This indicates that contrary to Rava’s explanation, it is a case involving more than one set of witnesses. The Gemara notes: Indeed, this matter is difficult.

ההיא איתתא דאתאי סהדי ואישתקור אייתי סהדי ואישתקור אזלה אייתי סהדי אחריני דלא אישתקור אמר ריש לקיש הוחזקה זו א"ל ר' אלעזר אם היא הוחזקה כל ישראל מי הוחזקו

Apropos the dispute in the mishna, the Gemara relates: There was a certain woman who brought witnesses to testify on her behalf, and they were proven to be liars. She brought other witnesses, and they too were proven to be liars. She went and brought yet other witnesses, who were not proven to be liars. There is an amoraic dispute whether the testimony of the third set of witnesses is accepted. Reish Lakish said: This woman has assumed the presumptive status of dishonesty because of her repeated reliance on false witnesses; therefore, the testimony of the third set is rejected. Rabbi Elazar said to him: If she has assumed the presumptive status of dishonesty, has the entire Jewish people assumed that presumptive status? Why assume that these witnesses are dishonest?

זימנין הוו יתבי קמיה דרבי יוחנן אתא כי האי מעשה לקמייהו אמר ריש לקיש הוחזקה זו א"ל רבי יוחנן אם הוחזקה זו כל ישראל מי הוחזקו הדר חזיה לרבי אלעזר בישות אמר ליה שמעת מילי מבר נפחא ולא אמרת לי משמיה

The Gemara relates: On another occasion, Reish Lakish and Rabbi Elazar were sitting before Rabbi Yoḥanan and an incident similar to this one came before them for judgment. Reish Lakish said: This woman has assumed the presumptive status of dishonesty. Rabbi Yoḥanan said to him: If she has assumed the presumptive status of dishonesty, has the entire Jewish people assumed that presumptive status? When Reish Lakish heard Rabbi Yoḥanan respond in a manner identical to the earlier response of Rabbi Elazar, he turned his head and glared angrily at Rabbi Elazar, and he said to him: You heard this matter from bar Nappaḥa, i.e., Rabbi Yoḥanan, and you did not say it to me in his name? Had I known that you were stating Rabbi Yoḥanan’s opinion I would have accepted it.

לימא ריש לקיש דאמר כרבי יהודה ורבי יוחנן דאמר כרבנן

The Gemara suggests: Let us say that Reish Lakish stated his opinion that this woman has assumed the presumptive status of dishonesty in accordance with the opinion of Rabbi Yehuda, who invalidates the testimony of witnesses based on suspicion that arises due to the circumstances even though there is no proof that they lied. And Rabbi Yoḥanan stated his opinion in accordance with the opinion of the Rabbis, who do not invalidate testimony based on unsubstantiated suspicion.

אמר לך ריש לקיש אנא דאמרי לך אפי' לרבנן עד כאן לא קא אמרי רבנן התם דליכא דקא מהדר אבל הכא איכא הא דקא מהדרא

The Gemara rejects this suggestion: Reish Lakish could say to you: I state my opinion even in accordance with the opinion of the Rabbis, as the Rabbis say that one relies on witnesses who render multiple sets of witnesses conspiring witnesses only there, in the mishna, in a case where there is no one who is seeking to hire witnesses to testify on his behalf, and one could assert that their testimony is true. But here, there is this woman who is seeking to hire witnesses to testify on her behalf, which arouses suspicion that she hired them to lie on her behalf.

ורבי יוחנן אמר לך אנא דאמרי אפי' לרבי יהודה עד כאן לא קאמר רבי יהודה התם דאמרינן אטו כולי עלמא גבי הני הוו קיימי אבל הכא הני ידעי בסהדותא והני לא ידעי בסהדותא:

And Rabbi Yoḥanan could say to you: I state my opinion even in accordance with the opinion of Rabbi Yehuda, as Rabbi Yehuda says that the testimony of the second set is invalid based on unsubstantiated suspicion only there, in the mishna, where circumstances exacerbate the suspicion that they are lying, as we say: Is that to say that everyone, the numerous sets of witnesses, was standing near these witnesses who testify in order to render them conspiring witnesses? But here, perhaps these witnesses who came last and were not proven to be liars know the content of the testimony, and these witnesses who were proven to be liars do not know the content of the testimony. The fact that the testimony of the first sets of witnesses was rendered void has no bearing on the status of other witnesses.

מתני׳ אין העדים זוממין נהרגין עד שיגמר הדין שהרי הצדוקין אומרים עד שיהרג שנאמר (שמות כא, כג) נפש תחת נפש

MISHNA: The conspiring witnesses are executed only if they are rendered conspiring witnesses after the verdict of the accused is concluded. This is in contrast to the opinion of the Sadducees, as the Sadducees say: Conspiring witnesses are executed only if they are rendered conspiring witnesses after the accused is killed on the basis of their testimony, as it is stated: “A life for a life” (Exodus 21:23; see Deuteronomy 19:21).

אמרו להם חכמים והלא כבר נאמר (דברים יט, יט) ועשיתם לו כאשר זמם לעשות לאחיו והרי אחיו קיים ואם כן למה נאמר נפש תחת נפש יכול משעה שקבלו עדותן יהרגו תלמוד לומר נפש תחת נפש הא אינן נהרגין עד שיגמר הדין:

The Rabbis said to the Sadducees: But wasn’t it already stated: “And you shall do to him as he conspired to do to his brother” (Deuteronomy 19:19), and this latter verse indicates that his accused brother is alive? And if so, why is it stated: “A life for a life”? One might have thought that if they are rendered conspiring witnesses from the moment the judges accepted their testimony in court, they will be executed, even though no verdict was concluded. Therefore, the verse states: “A life for a life,” teaching that they are executed only if they are rendered conspiring witnesses after the verdict of the accused will be concluded, from the moment that the court is on the verge of taking his life.

גמ׳ תנא בריבי אומר לא הרגו נהרגין הרגו אין נהרגין אמר אביו בני לאו קל וחומר הוא

GEMARA: It is taught with regard to the halakha in the mishna that a Sage referred to as the Distinguished [Beribbi] says: If the conspiring witnesses have not yet killed the accused with their testimony they are executed, but if they killed the accused with their testimony they are not executed. The father of that Sage, who was also a prominent Sage, said to him: My son, is this matter not derived through an a fortiori inference? If, when they were unsuccessful in their attempt to kill the accused they are executed, all the more so if they were successful in killing him should they be executed.

אמר לו לימדתנו רבינו שאין עונשין מן הדין דתניא (ויקרא כ, יז) איש אשר יקח [את] אחותו בת אביו או בת אמו אין לי אלא בת אביו שלא בת אמו ובת אמו שלא בת אביו בת אמו ובת אביו מנין ת"ל ערות אחותו גילה

He said to his father: You have taught us, our teacher, that one does not administer punishment based on an a fortiori inference. The punishment must be stated in the Torah. As it is taught in a baraita that among the relatives with whom engaging in intercourse is forbidden it states: “A man who takes his sister, the daughter of his father or the daughter of his mother” (Leviticus 20:17): I have derived only the daughter of his father who is not the daughter of his mother, or the daughter of his mother who is not the daughter of his father. From where is it derived that one is liable for engaging in intercourse with his sister who is both the daughter of his mother and the daughter of his father? It is derived from a verse, as the verse states: “He has uncovered the nakedness of his sister” (Leviticus 20:17), indicating that one is liable for engaging in intercourse with any sister.

עד שלא יאמר יש לי בדין אם ענש על בת אביו שלא בת אמו ובת אמו שלא בת אביו בת אביו ובת אמו לא כל שכן הא למדת שאין עונשין מן הדין

The baraita continues: Even if the verse had not stated that one is liable for engaging in intercourse with his sister, i.e., one’s sister with whom he has both parents in common, I have proof from an a fortiori inference: If the Torah punished an individual for engaging in intercourse with the daughter of his father who is not the daughter of his mother, or for engaging in intercourse with the daughter of his mother who is not the daughter of his father, is it not all the more so clear that he should be punished for engaging in intercourse with his sister who is both the daughter of his father and the daughter of his mother? From the fact that the Torah explicitly prohibited intercourse in that case and did not rely on the inference, you learn that one does not administer punishment based on an a fortiori inference.

עונש שמענו אזהרה מנין תלמוד לומר (ויקרא יח, ט) ערות אחותך בת אביך או בת אמך אין לי אלא בת אביו שלא בת אמו ובת אמו שלא בת אביו בת אביו ובת אמו מנין תלמוד לומר (ויקרא יח, יא) ערות בת אשת אביך מולדת אביך אחותך היא

The baraita continues: We heard from that verse (Leviticus 20:17) the punishment for engaging in intercourse with one’s sister with whom he has both parents in common. From where is the prohibition against engaging in those acts of intercourse derived? It is derived from a verse, as the verse states: “The nakedness of your sister, the daughter of your father or the daughter of your mother…you shall not uncover” (Leviticus 18:9). I have derived the prohibition against engaging in intercourse only with the daughter of his father who is not the daughter of his mother, or with the daughter of his mother who is not the daughter of his father. From where do I derive a prohibition against engaging in intercourse with his sister who is both the daughter of his father and the daughter of his mother? It is derived from a verse, as the verse states: “The nakedness of the daughter of your father’s wife, born of your father; she is your sister” (Leviticus 18:11), indicating that engaging in intercourse with any sister is prohibited.

עד שלא יאמר יש לי מן הדין מה אם הוזהר על בת אמו שלא בת אביו ובת אביו שלא בת אמו בת אביו ובת אמו לא כל שכן הא למדת שאין מזהירין מן הדין

The baraita continues: Even if the verse had not stated that engaging in intercourse with one’s sister with whom he has both parents in common is forbidden, I have proof for this from an a fortiori inference: If one was prohibited from engaging in intercourse with the daughter of his mother who is not the daughter of his father, and with the daughter of his father who is not the daughter of his mother, is it not all the more so clear that he is prohibited from engaging in intercourse with his sister who is both the daughter of his father and the daughter of his mother? You learn from this that one does not derive a prohibition based on an a fortiori inference.

חייבי מלקיות מנין תלמוד לומר רשע רשע

The baraita continues: From where is it derived that one does not administer punishment to those liable to receive lashes based on an a fortiori inference, and that the principle is not limited to capital punishment? The verse states a verbal analogy between the term “wicked” written with regard to those liable to be executed and the term “wicked” written with regard to those liable to receive lashes. With regard to those liable to be executed, it is written: “Who is wicked and deserves to die” (Numbers 35:3). With regard to those liable to receive lashes, it is written: “And it shall be if the wicked is deserving of lashes” (Deuteronomy 25:2).

חייבי גליות מנין אתיא רוצח רוצח

From where is it derived that one does not administer punishment to those liable to be exiled based on an a fortiori inference? It is derived by means of a verbal analogy between the term “murderer” written with regard to those who kill intentionally (see Numbers 35:21) and the term “murderer” written with regard to those who kill unwittingly (see Numbers 35:11). The conclusion is that one does not administer any punishment based on an a fortiori inference.

תניא אמר רבי יהודה בן טבאי אראה בנחמה אם לא הרגתי עד זומם להוציא מלבן של צדוקים שהיו אומרים אין העדים זוממין נהרגין עד שיהרג הנדון

§ Apropos the dispute between the Sadducees and the Sages, it is taught in a baraita: Rabbi Yehuda ben Tabbai says in the form of an oath: I will not see the future consolation of the Jewish people if I did not as a member of the court kill a single conspiring witness, in order to eradicate this reasoning from the hearts of the Sadducees, who would say: The conspiring witnesses are executed only if they are rendered conspiring witnesses after the accused will be killed. Rabbi Yehuda ben Tabbai killed the conspiring witness while the accused remained alive.

אמר לו שמעון בן שטח אראה בנחמה אם לא שפכת דם נקי שהרי אמרו חכמים אין העדים זוממין נהרגין עד שיזומו שניהם ואין לוקין עד שיזומו שניהם

Shimon ben Shataḥ said to him: I will not see the consolation of the Jewish people if you did not shed thereby innocent blood, as the Sages said: Conspiring witnesses are not executed unless both of them are rendered conspiring witnesses, and they are not flogged unless both of them are rendered conspiring witnesses. In this case, only one was rendered a conspiring witness.

מיד קבל עליו ר' יהודה בן טבאי שאינו מורה הוראה אלא לפני שמעון בן שטח וכל ימיו של ר' יהודה בן טבאי היה משתטח על קברו של אותו העד והיה קולו נשמע וכסבורין העם לומר קולו של הרוג אמר קולי שלי הוא תדעו למחר הוא מת אין קולו נשמע

Rabbi Yehuda ben Tabbai immediately accepted a commitment upon himself that he would issue a halakhic ruling only when he was before Shimon ben Shataḥ, to avoid mistakes in the future. And throughout all of Rabbi Yehuda ben Tabbai’s days he would tearfully prostrate himself on the grave of that witness whom he executed, to request forgiveness for having done so, and his voice was heard from a distance. And the people thought to say that it was the voice of the executed witness that was heard. Rabbi Yehuda ben Tabbai said to them: It is my voice. Know that this is so, as tomorrow, i.e., sometime in the future, he, referring to himself, will die, and his voice will no longer be heard.

אמר ליה רב אחא בריה דרבא לרב אשי דלמא בדינא קם בהדיה אי נמי פיוסי פייסיה:

Rav Aḥa, son of Rava, said to Rav Ashi: The fact that the voice will cease after Rabbi Yehuda ben Tabbai’s death is inconclusive as proof that the voice is not that of the executed witness. Perhaps the reason that the voice of the executed person will no longer be heard is that he confronted Rabbi Yehuda ben Tabbai in trial before the heavenly court, obviating the need for crying from his grave. Alternatively, perhaps Rabbi Yehuda ben Tabbai appeased the executed witness in the World-to-Come, and there is silence because no grievances remained.

מתני׳ (דברים יז, ו) על פי שנים עדים או שלשה עדים יומת המת אם מתקיימת העדות בשנים למה פרט הכתוב בשלשה אלא להקיש (שלשה לשנים) מה שלשה מזימין את השנים אף השנים יזומו את הג' ומנין אפי' מאה ת"ל עדים

MISHNA: It is written: “At the mouth of two witnesses or three witnesses shall he who is to die be executed” (Deuteronomy 17:6). The question is: If the testimony is valid with two witnesses, why did the verse specify that it is valid with three? Rather, it is to juxtapose and liken three to two: Just as three witnesses can render the two witnesses conspiring witnesses, so too, the two witnesses can render the three wit-nesses conspiring witnesses. And from where is it derived that two witnesses can render even one hundred witnesses conspiring witnesses? It is derived from a verse, as the verse states: “Three witnesses.” Since the verse is obviously discussing witnesses, the term witnesses is superfluous, as it could have stated: Two or three. The term “witnesses” teaches that two witnesses can render a set of witnesses conspiring witnesses irrespective of their number.

ר' שמעון אומר מה שנים אינן נהרגין עד שיהיו שניהם זוממין אף שלשה אינן נהרגין עד שיהיו שלשתן זוממין ומנין אפי' מאה ת"ל עדים

Rabbi Shimon says that three witnesses are mentioned in the verse in order to teach: Just as two witnesses who testified that a person is liable to be executed are not killed for this testimony unless both of them are found to be conspiring witnesses, so too, three witnesses who testified together are not killed unless all three of them are found to be conspiring witnesses. And from where is it derived that the same halakha applies even to one hundred witnesses? It is derived from a verse, as the verse states: “Three witnesses.” The superfluous term “witnesses” teaches that the status of all witnesses who come to court as a single set of witnesses is that of one testimony with regard to this halakha.

רבי עקיבא אומר לא בא השלישי להקל אלא להחמיר עליו ולעשות דינו כיוצא באלו

Rabbi Akiva says: The third witness mentioned in this verse does not come for the judges to be lenient concerning him; rather, its mention comes for the judges to be stringent concerning him and to render his halakhic status like that of these two witnesses who testified with him. One could claim that since the testimony of the third witness is superfluous, as the testimony of the other two witnesses sufficed, the third witness and any other witnesses beyond the first two should be exempt. Therefore, the verse teaches that since he testified with them and was rendered a conspiring witness with them, he too is executed.

ואם כן ענש הכתוב לנטפל לעוברי עבירה כעוברי עבירה על אחת כמה וכמה ישלם שכר לנטפל לעושי מצוה כעושי מצוה

One can learn a moral from this halakha: And if the verse punished one who associates with transgressors with a punishment like the one received by the transgressors, even though his role in the transgression is ancillary, all the more so will God pay a reward to one who associates with those who perform a mitzva like the reward of those who perform the mitzva themselves, even though his role in performing the mitzva is ancillary.

ומה שנים נמצא אחד מהן קרוב או פסול עדותן בטלה אף שלשה נמצא אחד מהן קרוב או פסול עדותן בטלה מנין אפי' מאה ת"ל עדים

The mishna cites another derivation based on the juxtaposition of two to three: And just as with regard to two witnesses, if one of them is found to be a relative or is otherwise disqualified, their entire testimony is voided, as it is no longer the testimony of two witnesses, so too, with regard to three witnesses who came to testify as one set, if one of them is found to be a relative or is otherwise disqualified, their entire testimony is voided, even though two valid witnesses remain. From where is it derived that the same halakha applies even in the case of one hundred witnesses? It is derived from a verse, as the verse states: “Witnesses.”