Makkot

Elai and Tobiah were near kinsmen to a surety, and R. Papa maintained that [their evidence was admissible, as] they were strangers to the debtor and the creditor; but R. Huna, the son of R. Joshua, pointed out to R. Papa that if the debtor were unavailable,1 would not the creditor come down on the surety?2 MISHNAH. IF ONE FLED AFTER HAVING BEEN CONVICTED AT A COURT AND AGAIN COMES UP BEFORE THE SAME COURT, THE [FIRST] JUDGMENT IS NOT SET ASIDE.3 WHEREVER TWO WITNESSES STAND UP AND DECLARE, ‘WE TESTIFY THAT N. N. WAS TRIED AND CONVICTED AT THE COURT OF X4 AND THAT Y AND Z WERE THE WITNESSES IN THE CASE,’ THE ACCUSED IS EXECUTED. A SANHEDRIN5 HAS JURISDICTION WITHIN THE LAND [OF PALESTINE] AND OUTSIDE IT. A SANHEDRIN THAT EFFECTS AN EXECUTION ONCE IN SEVEN YEARS, IS BRANDED A DESTRUCTIVE TRIBUNAL; R. ELIEZER B. AZARIAH SAYS: ONCE IN SEVENTY YEARS. R. TARFON AND R. AKIBA SAY: WERE WE MEMBERS OF A SANHEDRIN, NO PERSON WOULD EVER BE PUT TO DEATH. [THEREUPON] RABBAN SIMEON B. GAMALIEL REMARKED, [YEA] AND THEY WOULD ALSO MULTIPLY SHEDDERS OF BLOOD IN ISRAEL! GEMARA. [IF ONE FLED . . . AND AGAIN COMES UP BEFORE THE SAME COURT . . .] This wording implies [that the first judgment] is not to be set aside in the same Court, but may be set aside In another Court, whereas in the next clause we read: WHEREVER TWO WITNESSES STAND UP AND DECLARE, ‘WE TESTIFY THAT THIS MAN WAS TRIED AND CONVICTED AT THE COURT OF X AND THAT Y AND Z WERE THE WITNESSES IN THE CASE’ THE ACCUSED IS EXECUTED [which conveys a contrary impression]! — Said Abaye: That presents no difficulty; [there are two domains in regard to Court decisions], one has reference to a Palestinian Court, the other to an extra-Palestinian Court, as it is taught: R. Judah b. Dosithai says [in the name of R. Simeon b. Shetah] that if a fugitive from Palestine went abroad, his sentence is not set aside; from abroad to Palestine, his sentence is set aside, on account of Palestine's prerogative. 6 A SANHEDRIN HAS JURISDICTION WITHIN THE LAND . . . AND OUTSIDE IT. What [Scriptural] authority is there for this? — Our Rabbis taught: [From the text,] And these things shall be for a statute of judgment unto you throughout your generations in all your dwellings,7 we learn that a Sanhedrin has jurisdiction both in and outside Palestine. If that be so, what is the import of [the limitation in] the text, Judges and officers shalt thou make thee in all thy gates which the Lord thy God giveth thee tribe by tribe?8 — [It means that] in your [own] gates you set up tribunals in every district as well as in every city, whereas outside the Land [of Palestine], you set up tribunals only in every district but not in every city. 9 A SANHEDRIN THAT EFFECTS AN EXECUTION ONCE IN SEVEN YEARS IS BRANDED A DESTRUCTIVE TRIBUNAL; R. ELIEZER B. AZARIAH SAYS, ONCE IN SEVENTY YEARS. The question was raised whether the comment [of R. Eliezer b. Azariah was a censure, namely] that even one death-sentence in seventy years branded the Sanhedrin as a destructive tribunal, or [a mere observation] that it ordinarily happened but once in seventy years? — It stands [undecided]. R. TARFON AND R. AKIBA SAY, WERE WE MEMBERS OF A SANHEDRIN, NO PERSON WOULD EVER BE PUT TO DEATH. How could they [being judges] give effect to that [policy]? Both R. Johanan and R. Eleazar suggested that the witnesses might be plied with [intimate] questions such as, ‘Did you take note whether the victim was [perchance] suffering from some fatal affection or was he perfectly healthy?’ R. Ashi [enlarging on this] said: And should the reply be, ‘Perfectly healthy’, they might further be embarrassed by asking, ‘Maybe the sword only severed an internal lesion?’10 And what would be asked, say, in a charge of incest? — Both Abaye and Raba suggested asking the witnesses whether they had seen the offenders as intimate as ‘kohl-flask and probe’? 11 Now [with regard to] the Rabbis,12 what kind of evidence [in such a charge] would they deem sufficient to convict? — According to Samuel's maxim; for Samuel said that being caught in the attitude of the unchaste is sufficient evidence. MISHNAH. THE FOLLOWING GO INTO BANISHMENT: HE WHO SLAYS IN ERROR.13 IF [FOR INSTANCE] WHILE HE WAS PUSHING A ROLLER14 [ON THE ROOF] IT [SLIPPED OVER]. FELL DOWN AND KILLED SOMEBODY, OR WHILE HE WAS LOWERING A CASK IT FELL DOWN AND KILLED SOMEBODY, OR, WHILE COMING DOWN A LADDER HE FELL ON SOMEBODY AND KILLED HIM, HE GOES INTO BANISHMENT. BUT, IF WHILE HE WAS PULLING UP THE ROLLER IT FELL BACK ON SOMEONE KILLING HIM, OR WHILE HE WAS RAISING A BUCKET THE ROPE SNAPPED AND THE BUCKET KILLED SOMEBODY IN ITS FALL, determined on the evidence of his near kinsmen, who are inadmissible. convicted to death, having fled from Palestine abroad, are put to death forthwith; and those who fled to Palestine from abroad are not put to death (forthwith), but are sent to trial as in the first instance.’ ‘Dos, b. Judah’ seems the better reading; also the bracketed part is missing in many good MSS. Sanh. 17b. certain on any material point in the evidence, they could not be expected to take a lead in the actual execution of the offender, as required by law. (Deut. XVII, 6-7.) Thus capital punishment fails. is done by a log (or smooth flat stone) to which a long handle attached, by which it is pushed backwards and forwards. Cf. M. K. 11a and Vergil, Georgics, I, 178, area cum primis ingenti aequanda cylindro.