Makkot

For, [you might argue,] what do we find in the case of one who [as witness]1 had stoned a person? He himself is not stoned. Is it not then logical [to argue from this] that one who had only purposed to stone another [by his evidence] but did not succeed in stoning him, should not be stoned himself? Hence the derivation as taught from the text in the first instance, is the best. [IF THEY SAY:] ‘WE TESTIFY THAT N.N. IS GUILTY OF A CHARGE [ENTAILING THE PENALTY OF] BANISHMENT...... What is the sanction for this (substitutive) penalty? — Said Resh Lakish,2 It is based on the text which reads: He, he-shall-flee3 unto one of the cities of refuge, which emphatically asserts that he alone shall flee, but not the zomemim. R. Johanan said that the sanction for this (substitutive penalty of a flogging) may be obtained by argument a fortiori, thus: Now, what do we find in the case of one who had effected his intended act [of murder]? He is not banished.4 Is it not then logical [to argue from this] that zomemim who had not [actually] effected their intended act should not be banished? But does not this [very] argument point to a reverse conclusion? For is it not logical [to argue] that he who had effected the intended act [of murder] is not to go into banishment, so as not to obtain the possibility of atonement; whereas the zomemim who have not effected their intended act, should be allowed to go into banishment, so as to obtain the possibility of atonement? Hence the derivation as from the text, given by Resh Lakish, is the best. ‘Ulla said: Where is there found an allusion in the Torah to the treatment of zomemim-witnesses? Where is there found an allusion in the Torah to zomemim-witnesses! Is it not prescribed, then shall ye do unto him as he had purposed to do unto his brother?5 What is meant is some allusion in the Torah for inflicting on Zomemim-witnesses a flogging [in lieu of retaliation]! — It is written: And they shall justify the righteous and condemn the wicked: and it shall be if the wicked man deserve to be beaten [flogged], that the judge shall cause him to lie down and be beaten . . . forty [lashes].6 Now, is it because the judges justify the righteous and condemn the wicked’, that ‘the wicked man deserve to be beaten’?7 But, if you refer the text to a case where witnesses had incriminated a righteous man; then came other witnesses who justified the righteous’, [that is, indicated his innocence as heretofore], and ‘condemned the wicked’, [that is, proved the former witnesses wicked men] then [you can say that] ‘if the wicked man’ [the zomem] ‘deserve to be beaten,8 the judge shall cause him to lie down and be beaten.’ Cannot the sanction for the flogging be derived from the eighth Commandment: Thou shalt not bear false witness against thy neighbour?9 No, it cannot be, as that is a prohibition applying to no [tangible] action, and ‘wherever a prohibition is contravened without [involving tangible] action, no flogging is inflicted’. 10 Our Rabbis taught: Four observations were made in reference to zomemim-witnesses, they [a] are not stigmatized as born of [a priest and] a woman who had been a divorcee or a haluzah;11 [b] do not go into banishment to the cities of refuge; [c] are not made to pay ransom;12 and [d] are not sold as slaves.13 In the name of R. Akiba it was stated that they are also not made to pay [compensation] on their own admission.14 ‘They are not stigmatized as born of [a priest and] a divorcee or a haluzah’ — as we have already explained [above]. ‘They do not go into banishment to the cities of refuge’ — as we have already explained [above]. ‘They are not made to pay ransom’ — because ransom is held to be [a form of] atonement and these fellows stand in no need of that.15 Who could be the Tanna who considers ransom as [a form of] atonement? — Said R. Hisda: It is R. Ishmael, son of R. Johanan b. Berokah, as it has been taught: It is written, then he shall give for the redemption of his life [whatever is laid upon him],16 that is, compensation for the [life of] the person injured [dead]. R. Ishmael, son of R. Johanan b. Berokah, says: It is compensation for [his own life], the one responsible for the injury. Is it not right to assume that [ultimately] they differ in the interpretation of the import of kofer [ransom]; one Master considering the ransom merely as pecuniary satisfaction, whilst the other Master interprets it as [a form of] expiation [of guilt]? Said R. Papa: Not [necessarily] so! Both17 may be taken to consider ransom as a form of expiation [of guilt], only here they differ on this, that one Master considers the assessment should be based on the value of the injured [dead] person, while the other Master considers that it should be based on the value of the person responsible for the injury. What is the reason underlying the view held by our Rabbis?18 — They argue that as the same expression for assessment is used in two proximate instances in the same chapter,19 therefore just as in the former instance the assessment is based on the injured [dead child], the assessment in the second instance20 is likewise to be based on the [dead] person [injured by the ox]. And what is R. Ishmael's [reason]? — He argues that the text states [explicitly the compensation to be] for the redemption of his life [soul]. And [what is the reply of] the Rabbis [to this interpretation]? — Yes indeed, the text has it for the redemption of his life [soul]; nevertheless, in regard to the amount to be paid assessed according to the value of the injured.21 ‘And they are not sold as slaves’ — R. Hamnuna22 was inclined to argue that this exemption would be granted only where the [innocently] accused had the means to pay his threatened fine; for, inasmuch as he would then not have been sold, they [the zomemim] should likewise not be sold; but where he himself had no means, the zomemim, even though they have the means, should be sold. [Said Raba to him:] Let the zomemim say to him, ‘If you had the means, would you have been sold? Therefore, we likewise should not be sold.’ But what R. Hamnuna did propose to argue was that this exemption should be granted only where either he or they have the means; but where neither he nor they have means they should be sold.23 Said Raba to him: The Divine Law24 prescribes, If he has nothing, then he shall be sold for his theft,25 which directs that he be sold for theft, but not for insidious scheming. ‘In the name of R. Akiba it was stated that they do not pay on their own admission.’ What is R. Akiba's reason [for this exemption]? — He considers this compensation as kenas26 and kenas is not payable on one's own admission. Rabbah [commenting on this] said: You may recognise it as such, because, you see, these [schemers] have actually done nothing [tangible], yet they are put to death or made to pay damages. R. Nahman [commenting] said: You may recognise it as kenas, as the money remains [undisturbed] in the possession of the owner, yet those fellows are made to pay. discovered till after the execution had taken place, the zomemim were not punished by retaliation, v. p. 25. emphasis to the subject of the verb. extreme penalty, he is not relegated into banishment (either for atonement, or protection from the ‘avenger’). into it is therefore only claimed as a suggestion, a mere allusion and no more, as it may seem at first. The main difficulty here is the word chr, ‘a contention’, ‘controversy’, between two parties; the penalty of flogging is not determined by the relative righteousness of the one and the wickedness of the other, but is inflicted for religious, ritual, or moral transgressions. Hence, the reference is to the attempts of contentious fellows to degrade an enemy by a false imputation; v, the comments of Nahmanides, Malbim and J.Z. Meklenburg, Ha-ketab we-ha-Kabbalah, a,I. Ex. XXI, 28ff. If the charge was made on fictitious evidence, and the witnesses were found zomemim, they do not pay the amount that the court might have imposed on the one accused innocently. statutory fines. redemption) ransom of his life (Heb., soul) whatsoever is laid upon him. In view of the last part of verse 29, the ox shall be stoned and his owner also shall be put to death, it is difficult to say which of the two is demanded, atonement for the negligence which resulted in the death of a human being, or the pecuniary compensation, redemption, for the loss to the capacity of the family. V. Nahmanides and Ibn Ezra on Exodus. ox killed a man). Toledoth I, p. 378. passage down to the next ‘said Raba to him,’ will be found to be a later insertion, out of harmony. It is not in the Munich text, v. D.S, p. 2. judges shall condemn, he shall pay double . . . , but not on his own admission. (Rashi); v. Glos.