Makkot

namely that of proclamation.1 And whence does R. Meir derive that principle? — He obtains the principle of proclamation from the phrase [in the same passage], And those that remain shall hear and fear. MISHNAH. MONETARY IMPOSITIONS ARE SHARED AMONG THE OFFENDERS, BUT THE LASHES OF A FLOGGING ARE NOT SHARED AMONG THE OFFENDERS. HOW FOR INSTANCE? IF THEY GAVE EVIDENCE AGAINST A PERSON THAT HE OWED HIS FRIEND ONE HUNDRED ZUZ, AND THEY WERE FOUND ZOMEMIM, THEY DIVIDE THE CORRESPONDING DAMAGES PROPORTIONATELY BETWEEN THEM; BUT IF THEY GAVE EVIDENCE AGAINST HIM THAT HE WAS LIABLE TO A FLOGGING OF FORTY LASHES AND WERE FOUND ZOMEMIM, EACH ONE RECEIVES HIS FORTY LASHES. GEMARA. [EACH ONE RECEIVES HIS FORTY LASHES.] What is the [Scriptural] warrant for this? — Said Abaye: The term rasha’2 occurs in the text prescribing a flogging,3 and also in the text prescribing the death penalty by order of the Court:4 just as the death-penalty cannot be effected in half-measure, so a flogging likewise, may not be effected in half-measure.5 Raba said: We require to fulfil the words, Then shall ye do unto him as he purposed to do unto his brother,6 and this would not be done [unless each zomem-witness receives his full due]. Then, if that be so, why should not the same obtain in regard to monetary imposition? Money can be unified into one total, whereas lashes cannot be so unified. MISHNAH. WITNESSES ARE NOT CONDEMNED AS ZOMEMIM UNTIL THEY THEMSELVES ARE [DIRECTLY] INCRIMINATED7 ; HOW, FOR INSTANCE? IF THEY HAD DECLARED: ‘WE TESTIFY THAT N.N. KILLED THAT PERSON’; AND OTHER WITNESSES SAID TO THEM: HOW COULD YOU TESTIFY TO THAT, AS THAT MURDERED PERSON OR THAT [ALLEGED] MURDERER WAS WITH US ON THAT VERY DAY, AT SUCH AND SUCH A PLACE?’ [THEN] THE WITNESSES ARE NOT THEREON CONDEMNED AS ZOMEMIM. BUT, IF THESE [OTHER] WITNESSES SAID: HOW COULD YOU TESTIFY TO THAT, AS ON THAT VERY DAY, YOU WERE WITH US AT SUCH AND SUCH A [DISTANT] PLACE?’ [THEN] THE FORMER ARE CONDEMNED AS ZOMEMIM. IF OTHER WITNESSES CAME, AND THEY CHARGED THEM [WITH PERFIDY]: THEN [AGAIN] OTHERS CAME, AND THEY [AGAIN] CHARGED THEM8 [WITH PERFIDY], EVEN TO A HUNDRED, THEY ARE ALL TO BE EXECUTED. R. JUDAH SAYS THAT THIS IS [SEEMINGLY] A CONSPIRACY9 AND THE FIRST SET ALONE IS [TO BE] EXECUTED. GEMARA. What is the [Scriptural] warrant for this? — Said R. Adda:10 The text says, and behold, if the witness be a witness-of-falsehood etc.11 [which conveys that he is not a zomem] until the lie is given to the body of the evidence.12 In the School of R. Ishmael it was taught: to testify against him13 a wanton perversion [sarah],14 conveys [that he is] not [a zomem] until the body of the evidence is controversed. Raba15 stated that if two came and declared that N.N, had killed that person on the eastward side of the citadel, and two others came and said [to the former witnesses]: ‘But were you not [then] with us at the westward side of the citadel?’ we have to consider. If while standing on the westward side of the citadel, it is possible to see that [indicated] spot on the eastward side of the citadel, they are not condemned16 as zomemim; otherwise, they are [condemned] as zomemim. But that is quite obvious! — No; you might say that we [should not convict but] consider the possibility of [the first witnesses having] a stronger eye-sight. Therefore Raba informs us that we do not give such special consideration [to zomemim]. Raba also stated that if two came and declared that N.N, had killed so-and-so early on Sunday morning at Sura, and two other witnesses came and said, ‘You were with us at sunset on Sunday evening at Nehardea’, we have to consider. If one can get from Sura to Nehardea between the early morning and sunset,17 the first witnesses are not condemned as zomemim; otherwise, they are zomemim. But that is quite obvious! — No; you might say that we should consider the possibility of the ‘Flying Camel’.18 Therefore Raba informs us that we do not give such special consideration [to zomemim]. Raba further stated that if two witnesses came and declared that N.N, had killed so-and-so on Sunday and two others came and said, ‘But were you not with us on Sunday [elsewhere]? It was [in fact] on Monday that N.N, killed him;’ or, furthermore, even if the latter witnesses declared that N.N, had [actually] killed the person on the [previous] Friday, the former witnesses are still executed as zomemim, inasmuch as Sunday, the time stated in their evidence [was disproved, and] the murderer had then not yet been [found guilty and sentenced to the death-penalty.19 What new information does he proffer here? — [That the murderer as well as the perfidious witnesses are ultimately executed!]20 We have learnt [that] already: Consequently, if one of these [two sets of witnesses]21 has been found zomemim, both the criminal and the zomemim are executed, while the other set is let go?22 — Yes, but one must needs wait to hear the latter part of Raba's statement, in reference to evidence bearing on the time of the verdict, namely, if two came and declared that N. N, had been convicted [of murder] on Sunday, and two others then came and said to the first; ‘You were with us [elsewhere] on Sunday, but N. N. was [in fact] convicted on Friday,’ or furthermore, even if the latter said N. N. was [not] convicted [till] Monday, the former are not executed as zomemim, because by the time when the first witnesses gave their [fictitious] evidence,23 the man charged had already been sentenced to death. The same principle obtains in cases of kenas [fine].24 If two came and said that N.N. had stolen and killed or sold [an animal] on Sunday, and two others came and said to the first, ‘You were with us [elsewhere] on Sunday but, it was [in fact] on Monday that N.N. had stolen and killed or sold the animal,’ [the first witnesses have to pay the fine];25 nay, furthermore, even if the second witnesses said that N.N. had stolen and killed or sold [the animal] on the [previous] Friday, still the first witnesses have to pay, because at the time when they gave their evidence, N.N. had not yet been made liable26 to pay [the fine that these perfidious fellows tried to fix on him]. If two came and declared that N.N. had stolen and killed or sold [an animal] and been convicted on Sunday, and then, two others came and said [to the witness], ‘You were with us [elsewhere] on Sunday, but [in fact], N.N. had stolen and killed or sold [the animal] on Friday, when he was convicted;’ nay, even if the second witnesses said that N.N. had [actually] stolen and killed or sold [the animal] on Sunday [or even on Monday],27 but that he was not convicted [and fined] till Monday, the former witnesses have not to pay [the exactions], because, at the time when they were giving [their perfidious] evidence,28 N.N. had already been made liable [to pay the fine] by a tribunal. R. JUDAH SAYS THAT THIS IS [SEEMINGLY] A CONSPIRACY AND THE FIRST SET ALONE IS [TO BE] EXECUTED. zomemim, Sanh. 89a. forty stripes. Deut. XXV, 2-3. Num. XXXV, 31. alleged offence, is being challenged (Rashi). turn as conspirators: so Rashi, Alfasi, and Maim.; on the other hand, Nahmanides defends another interpretation, that successive sets of witnesses came and contradicted each other, these for and the next against the accused, in which he is supported by the wording in the Tosefta. The alternative translation would then be: — If other witnesses came and charged them, then (again) other witnesses came and charged them (the last) even to a hundred . . . stasiodes meaning a member of a faction or factious party. law, testibus non testimoniis.) more probably from the secondary Po'el form, rrux to be pervert and rebellious, cf. Deut. XXI, 18, 29 and especially. Isa. I, 23. ordinarily take two days of steady travelling. V. J. Obermeyer. Die Landschaft Babylonien, p. 293. water for fifty miles a day without a drink’. Enc. Brit. s.v. Camel. ‘The speed of the imperial post averaged five miles an hour: the distance between Antioch and Byzantium (747 miles) was accomplished in little under six days: hired vehicles would take longer.’ Caroline A. J. Skeel, Travel in the First Century, p. 70. Eduth, XVIII, 2. oxen for an ox and four sheep for a sheep (ibid. XXI, 37). available), or its value. It is the witnesses, therefore, who force the fines upon the thief.