MISHNAH: How are plotting witnesses treated¹ 19:16–20 prescribes that a “plotting” false witness has to be punished by the penalty which would have been imposed on his victim had his testimony been found true. By rabbinic definition, a “plotting” witness is one whose testimony not only is false but shown to be impossible, in that there are witnesses to the fact that he testified to be eye witness of a fact which he could not have seen since at the time it was supposed to have happened he was at another place (Sanhedrin Chapter 5, Note 3). There are cases when plotting perjury is proven but the penalty cannot be imposed. Then the false witness must be punished for breaking the Eighth Commandment, which is the standard punishment decreed for breaking any prohibition for which the penalty was not specified, fixed in Deut. 25:3 as at most 40 lashes (which, because the court marshal might err in his count, is limited to 39 lashes). The Babli (2b) disagrees with this explanation; it classifies simple perjury as “actionless crime” for which no penalty is possible; this clearly is not the Yerushalmi’s position (cf. Ketubot 4:4 Note 196.)? “We testify about this man that he is the son of a divorcee or a woman who had received ḥalîṣah². 21:7,14) is desecrated; he cannot function as a priest and the priestly revenues are forbidden to him. The divorcee is biblically forbidden to the Cohen. The widow receiving halîsah from the former husband’s brother is forbidden rabbinically; her son is rabbinically desecrated, which for practical consequences does not make any difference.” One does not say that he should be decreed to be the son of a divorcee or a woman who had received ḥalîṣah in his stead, but he is flogged 40 [lashes]³. “We testify about this man that he is obligated to go into exile⁴ 35:9–34)..” One does not say, this one should go into exile in his stead but he is flogged 40 [lashes]⁵. “We testify about this man that he divorced his wife but did not pay her ketubaḥ.⁶ would not be paid, i. e., if the woman stayed married to her husband and predeceased him. He can be fined the current discounted expected value of such a ketubah.” Would he not finally have to pay her ketubah today or tomorrow? But one estimates how much would a man be willing to pay for the ketubah of this woman in case she would be widowed or divorced, but if she died her husband would inherit from her.

footnotes: ¹ It is one of the Ten Commandments not to testify falsely. In addition, Deut. ² The son of a Cohen from a woman he is prohibited from marrying (Lev ³ If the witness is not a Cohen, declaring him as son of a divorcee would not change his status at all. If he is a Cohen, declaring him as son of a divorcee would punish not only him but also his descendants, against the biblical text as explained in the Halakhah. ⁴ The unintentional homicide (Num. ⁵ As explained in the Halakhah, the perjurer is barred from fleeing to a city of refuge. ⁶ When in fact the woman is still married to her husband. Then the witness could be fined only if in the future the ketubah

HALAKHAH: “How are plotting witnesses treated,” etc. Rebbi Yose ben Ḥanina said, everything was included in do not testify against your neighbor as a false witness. As an exception, do to him as he plotted to do to his neighbor. If you can satisfy do to him as he plotted then fulfill (do not testify)⁷ [do to him as he plotted to do]⁸. But if you cannot satisfy do to him as he plotted to do to his neighbor then (do not)⁷ satisfy do not testify against your neighbor¹ 19:16–20 prescribes that a “plotting” false witness has to be punished by the penalty which would have been imposed on his victim had his testimony been found true. By rabbinic definition, a “plotting” witness is one whose testimony not only is false but shown to be impossible, in that there are witnesses to the fact that he testified to be eye witness of a fact which he could not have seen since at the time it was supposed to have happened he was at another place (Sanhedrin Chapter 5, Note 3). There are cases when plotting perjury is proven but the penalty cannot be imposed. Then the false witness must be punished for breaking the Eighth Commandment, which is the standard punishment decreed for breaking any prohibition for which the penalty was not specified, fixed in Deut. 25:3 as at most 40 lashes (which, because the court marshal might err in his count, is limited to 39 lashes). The Babli (2b) disagrees with this explanation; it classifies simple perjury as “actionless crime” for which no penalty is possible; this clearly is not the Yerushalmi’s position (cf. Ketubot 4:4 Note 196.). Another explanation: Do to him, not to his descendants³.

footnotes: ⁷ Text of the Leiden ms., to be deleted. ⁸ Text of G, to be accepted. ⁷ Text of the Leiden ms., to be deleted. ¹ It is one of the Ten Commandments not to testify falsely. In addition, Deut. ³ If the witness is not a Cohen, declaring him as son of a divorcee would not change his status at all. If he is a Cohen, declaring him as son of a divorcee would punish not only him but also his descendants, against the biblical text as explained in the Halakhah.

Rebbi Joshua ben Levi said, if two alternatives are presented to the court, one chooses one of them⁹.20:13) and plotting (Deut. 19:19). This justifies the alternative presented in the preceding paragraph. The text is copied from Terumot 7:1 Note 14; also Bava qamma 7:2, Note 30.. This excludes matters in the Power of Heaven¹⁰; it is irrelevant here..

footnotes: ⁹ As a general principle, no crime can be punished by more than one punishment. There never can be separate penalties for testifying falsely (Ex ¹⁰ This sentence refers to the topic in Terumot

¹¹ 77a, Sifra Emor Pereq 2(7–8). It is written¹² 21:15. This verse is written for the High Priest, but it is applied to all priests who marry women forbidden to them.: He shall not desecrate his issue in his people. Not only his issue will be desecrated; from where also she¹³ 21:7,14 the “desecrated woman” is mentioned in the list of women forbidden to the Cohen. The verse implies that the daughter of a Cohen from an illicit union is conceived desecrated. There is no verse which spells out the conditions under which a woman otherwise may become desecrated. There is a verse which specifies that the daughter of a Cohen married to anon-Cohen or mother of a non-Cohen child is disqualified from priestly revenues (Lev. 22:12–13), but not desecrated. Since the “desecrated woman” is always mentioned together with the prostitute, it is inferred that sexual offenses of a woman desecrate her.? Is this not a logical inference? Since the issue, which did not sin, is desecrated, should she, who committed a sin¹⁴. 21:7, addressed to the common priest, repeat the verb “do not marry”, this is read to mean that the first mention is the prohibition for the male to marry, the second the prohibition for the female to agree to be married (Yebamot 9:1 Note 13, Qiddušin 3:14 Note 243; Sifra Emor Pereq 1(12), Babli Yebamot 84b)., not logically be desecrated? He himself is a counter example, since he committed a sin but was not desecrated¹⁵ 2(8). The son of a Cohen from an illicit union is desecrated from conception; he does not become desecrated. This implies that no male Cohen may become desecrated; he may, however, become unfit for his office.. No. If you argue about a man who is not desecrated in any circumstance, what can you say about a woman who is desecrated in many circumstances¹⁶? Since she is desecrated in many circumstances, it is logical that she should be desecrated. If you wish you can say “not to desecrate”, not to desecrate, about somebody who was qualified and became desecrated¹⁷, most texts read יחלל both times; but from Ravad’s commentary one sees that the first time he read יַחֵל (Num. 30:3), identical in meaning with יְחַלֵּל. As explained in Note 16, actively “to desecrate” implies the existence of an object which is not yet desecrated. Since any child of the illicit union of a Cohen is intrinsically desecrated, it cannot be made desecrated. Since the male is not desecrated, the use of the active יְחַלֵּל therefore implies that the female is desecrated..

footnotes: ¹¹ Babli Qiddušin ¹² Lev. ¹³ In Lev. ¹⁴ On the face of it, the verses only imply that the male Cohen who marries an unsuitable woman commits a sin. Since both Lev ¹⁵ Since the verse emphasizes that his children will be desecrated, it implies that the father himself is not desecrated (even if he consorts with a Gentile or a slave); Sifra Emor Pereq ¹⁶ In order to avoid circular reasoning it is necessary to classify “disqualified” with “desecrated”. Then it follows that there exist classes of females desecrated for the priesthood without equivalent among males. ¹⁷ The text of this sentence is in doubt. There is no biblical verb חוֹל “to profane” as required by the reading here and in the Babli. In Sifra

Bar Pedaya said, the desecrator was not desecrated: how can this one be desecrated¹⁸?

footnotes: ¹⁸ This refers back to the Mishnah. Since the male is not desecrated by marrying a divorcee, the Cohen who is a perjured witness cannot be declared desecrated.

Witnesses found guilty of plotting. Rebbi Joḥanan said, falsehood, falsehood¹⁹. 21:18: Behold, a witness of falsehood is the witness, falsehood he spoke about his brother. The repetition of the term indicates that every single falsehood in testimony subjects the witness to a separate penalty.. Witnesses found guilty of plotting and then found guilty of lying²⁰ 7:1 Notes 7–29, in particular Note 19 (Ketubot 3:1 Note 29).. Rebbi Joḥanan said, falsehood, falsehood. Rebbi Eleazar said, evildoer, evildoer. ²¹ 7:1 Notes 21–23. The murderer is called evildoer in Num. 35:31, the person subject to flogging in Deut. 25. It is said evildoer for death penalty cases, and it is said evildoer for cases of whipping. Since for the evildoer subject to the death penalty there is no fine accompanying the death penalty, so for the evildoer subject to whipping there is no fine accompanying whipping.

footnotes: ¹⁹ Deut ²⁰ In the same testimony, the witnesses were found guilty of “plotting”, of rendering impossible testimony, and then of false (but possible) testimony. If this is a civil case, where the witnesses have to pay for “plotting”, can they still be flogged for false testimony? R. Johanan says yes, R. Eleazar and R. Simeon ben Laqish say no, as discussed at length in Terumot ²¹ The text is from Terumot

Bar Pedaia said, he shall flee²². 19:5, speaking of the homicide. Cf. Notes 4,5., not his plotters.

footnotes: ²² Deut

⁶ would not be paid, i. e., if the woman stayed married to her husband and predeceased him. He can be fined the current discounted expected value of such a ketubah. They do not pay the entire ketubah, but they pay the personal benefit of the ketubah. How? One asks, how much would a person pay for the ketubah of this [woman], maybe she would die during her husband’s lifetime and her husband would inherit from her, or maybe her husband would die during her lifetime and this one would inherit her ketubah. Accordingly²³ he has to pay.

footnotes: ⁶ When in fact the woman is still married to her husband. Then the witness could be fined only if in the future the ketubah ²³ For לפיכך read לפי כך.

MISHNAH: “We testify against this man that he owes another 1’000 denars payable within 30 days” but he says, within ten years²⁴. One estimates how much a person would be willing to pay to have 1’000 denars at his disposal to return them after ten years instead of returning them after thirty days. “We testify against this man that he owes another 200 denars” and they are found to be plotting, they are flogged and have to pay since the title which brings him to flogging is not the one which brings him to restitution²⁵, the words of Rebbi Ṃeïr. But the Sages say, anybody who pays is not flogged⁹.20:13) and plotting (Deut. 19:19). This justifies the alternative presented in the preceding paragraph. The text is copied from Terumot 7:1 Note 14; also Bava qamma 7:2, Note 30.. “We testify against this man that he is liable to be flogged 40 lashes” and they are found plotting, they are whipped 80 because of do not testify against your neighbor as a false witness and because of do to him as he plotted to do to his neighbor, the words of Rebbi Ṃeïr. But the Sages say, they only are flogged 40 times⁹.20:13) and plotting (Deut. 19:19). This justifies the alternative presented in the preceding paragraph. The text is copied from Terumot 7:1 Note 14; also Bava qamma 7:2, Note 30.. One distributes money but one does not distribute floggings. How? If they testified that he owes another person 200 denars and were found plotting, one distributes between them²⁶ witnesses, each one has to pay 200/n denars.. If they testified that he is liable to be flogged 40 lashes and were found plotting, each one of them is flogged 40 lashes.

footnotes: ²⁴ The witnesses found to be plotting wanted to deprive their victim of the use of 1’000 denars for almost ten years. ²⁵ They are flogged for false testimony and have to pay restitution as plotters. ⁹ As a general principle, no crime can be punished by more than one punishment. There never can be separate penalties for testifying falsely (Ex ⁹ As a general principle, no crime can be punished by more than one punishment. There never can be separate penalties for testifying falsely (Ex ²⁶ There must be at least 2 witnesses for their testimony to be heard. If there were n

HALAKHAH: ²⁷ˋit10:2 (7), explained there in Notes 57–68. In G, the first paragraph is Halakhah 2, the remainder Halakhah 3. Rebbi Abba bar Mamal, Rav²⁸ Amram, Rab Mattanah in the name of Rav: If somebody makes a loan to another person stipulating that he won’t press for repayment, the Sabbatical will remit it. Did we not state: “If somebody slaughters a cow and divides it up on New Year’s Day”? And Rebbi Eleazar said, this follows Rebbi Jehudah. But can he require payment on New Year’s Day? As Rebbi Abba said in the name of Rebbi Zeˋira: Since he could not ask him for payment, it is as if he could not believe him. And since he could not believe him, it is as if he could not pay him. And here, because he could have given him but did not give, the first [debt] is turned into a loan.

footnotes: ²⁷ This Halakhah also is Halakhah Ševi ²⁸ This is his Babylonian title; in the Yerushalmi he seems not to carry a title; cf. the variant readings.

Rebbi Yose ben Rebbi Abun in the name of Rav: If somebody gives a loan to a person on condition that the Sabbatical not remit it, the Sabbatical does not remit it, as we have stated: “to return them after ten years instead of returning them after thirty days”. Are there ten years without a Sabbatical? Rebbi²⁹ Huna said, Rav Naḥman and Rav Sheshet disagreed. One of them said, if the loan was given on a pledge; but the other said, if he writes him a prozbul.

footnotes: ²⁹ Read: “Rav”, cf. the variant readings.

It was stated: “For thirty days he will not come.” What means “for thirty days he will not come”? Samuel said, if somebody gives a loan to a person without specifying details, he has no right to ask for payment until after 30 days. Rebbi²⁹ Jehudah came and explained: The Sabbatical year, the remitting year, is close. Is not the Sabbatical year the remitting year? Why does the verse say, the Sabbatical year, the remitting year, is close? Lest you say, I am not permitted to ask for payment until after 30 days; after 30 days the debt will be remitted and I will not collect. Therefore, it must say, the Sabbatical year, the remitting year, is close. Did not Rebbi Abba bar Mamal, Rav Amram, Rav Mattanah say in the name of Rav: If somebody makes a loan to another person stipulating that he will not press for repayment, the Sabbatical will remit it? It was found stated by Rebbi Ismael: The Sabbatical year, the remitting year, is close. Is not the Sabbatical year the remitting year? Why does the verse say, the Sabbatical year, the remitting year, is close? Lest you say, the entire six years his vineyard is available, his field is available but after six years the debt is remitted and I cannot collect. Therefore, it must say, the Sabbatical year, the remitting year, is close.

footnotes: ²⁹ Read: “Rav”, cf. the variant readings.

MISHNAH: Witnesses become plotters only by their own testimony. How is this? If they said, we testify against this man that he killed a person; [others] told them, how can you testify, for this murder victim or this murderer was with us at such place on that day; they are not plotters³⁰. But if they told them, how can you testify, for you were with us at such place on that day; they are plotters and are executed on their testimony³¹ 5:1), not by circumstantial evidence.. If others came and they showed them to be plotters, if others came and they showed them to be plotters, even a hundred, all should be executed³². Rebbi Jehudah says, this is ³³ “indigo”, that the second group which taints the others’ testimony “tints” them. This is rejected by Arukh, based on a Gaonic responsum which identifies איסטיסית with קוביוסטית “gambling”. R. Hananel and Maimonides read the word as אסטסיס, the Syriac form of Greek στάσις “conspiracy”, or possibly ἀστασία “uncertainty” (Levy, who also considers the forms ἀσταθής, ἄστατος). Rashi considers the word as Semitic, עדות סטיא “incredible testimony” that the second group should be able to testify against all others. In Tosephta 1:10, Zuckermandel notes the readings איצטניסית ,איסטיטית. Brüll proposes astutia.איסטיסית; only the first group is executed.

footnotes: ³⁰ The testimony may be implausible but it is not impossible. The court may reject the testimony but it cannot be sanctioned. ³¹ If the witnesses were shown to have been far from the place of the crime at the date of the crime, the testimony is impossible; they are plotters and must be punished according to the law of plotters. But this must be based on the testimony of the witnesses in the required investigations (Mishnah Sanhedrin ³² The first group of witnesses accuses A to have murdered B at a certain place at a certain time. A second group testifies that the first witnesses were with them at another place, more than a day’s trip away, at that time. Groups 3–99 support group 1, and group 2 shows all of them to be plotters. (Explanation of Alfasi and Maimonides.) ³³ Alfasi and Maimonides read the word as isatis

HALAKHAH: “Witnesses become plotters,” etc. Rebbi Abba bar Mamal: Only if he was killed. But not if he was not killed. That is what we have stated: “Only the first group is executed.³⁴” Rebbi Abun bar Ḥiyya asked before Rebbi Zeˋira: If they were standing, testifying that he killed a person in Lydda³⁵. Others came and told them, how can you testify since you were with us in Caesarea³⁶ on the fifth of the month? Then others came and told them, how can you testify since you were with us in Sepphoris on the tenth of the month³⁷? The murderer cannot be executed since possibly they are plotting witnesses. The witnesses cannot be executed since possibly they are telling the truth.

footnotes: ³⁴ This refers to Mishnah 7. Since R. Jehudah holds that wholesale disqualifications are not believable, why should the first group of witnesses be condemned when all others, testifying to the same facts, are not? The answer is that if the third group comes before the first is condemned and executed, nobody is condemned. Babli 5b in the name of R. Abbahu. ³⁵ Presumably on the first of the month. ³⁶ In G: קיסרין, Caesarea Philippi, more than a five days’ walk from Lydda. Caesarea Maritima is less than two days from Lydda. ³⁷ This is difficult to understand since Sepphoris is reachable from both Caesareas in two to three days. One has to assume that round numbers were chosen to make memorization easy.The third group of witnesses testifies to undercut the credibility of the second.

MISHNAH: Plotting witnesses cannot be executed unless judgment was rendered, for the Sadducees say, unless he was executed, for it says, a life for a life³⁸. 19:21), not נֶפֶ֭שׁ תַּ֥חַת נָֽפֶשׁ (Lev. 24:18) which applies to an animal.. The Sages told them, was it not already said, do to him as he plotted to do to his brother³⁹. 19:19. It says “he plotted”, not “he did”. This implies that the plot was discovered before it succeeded., does this not imply that his brother is alive? Then why does it say, a life for a life? I could think that they would be executed once they had testified, but the verse says, a life for a life; i. e., they cannot be executed unless judgment was passed⁴⁰.

footnotes: ³⁸ This is a misquote. It should be בְּנֶ֗פֶשׁ נֶ֣פֶשׁ (Deut ³⁹ Deut ⁴⁰ The court might not believe the witnesses even if no formal perjury was proved. Then the testimony becomes irrelevant and cannot be sanctioned. If no sentence had been passed on the accused, it is impossible to sentence the witnesses to the same penalty.

HALAKHAH: “Plotting witnesses cannot be”. ⁴⁵ 7:4, explained there in Notes 45–51. (Babli Bava qamma 72b/73a). Rebbi Zeˋira said, this implies that a plotting witness is not disqualified by the court but is disqualified by himself. Explain it by warning, as it was stated: “Rebbi Yose said, when has this been said? For two testimonies with two warnings. But for one testimony and one warning⁴⁶ any testimony which is partially disqualified is totally disqualified.” What does it mean, “if it is partially disqualified it is totally disqualified”? If they were standing and testifying against him on the tenth of Nisan that he had stolen an ox on the first of Nisan, and slaughtered or sold it on the fifth of Nisan. They were shown to be plotting on the eleventh of Nisan. Any testimony which they delivered between the second and the fifth of Nisan⁴⁷: between the tenth and the fifteenth of Nisan. This is the correct reading. Testimony of perjured witnesses must be struck from court records from the date of the testimony, not the date of the discovery of the fact of perjury. Babli Sanhedrin 27a. is retroactively disqualified. Rebbi Abba bar Mamal said, explain it if they deliver their testimony in one group and you cannot infer anything, as we have stated⁴⁸ 2:9; testimony to affirm title to real estate by proving three years of undisturbed possession.: “They were the first and they were the later [witnesses]. If they were shown to be plotting at first, there is nothing. At the second time, there is one testimony⁴⁹. At the third time, there are two testimonies. How? If they testify on one occasion, you could not infer anything. It only comes based on multiple testimonies. ⁵⁰ 3:6, perjured witnesses are automatically disqualified from the moment of perjury, without any action by the court. Rebbi Zeˋira said, this implies that a plotting witness is not disqualified by the court but is disqualified by himself.

footnotes: ⁴⁵ The entire Halakhah is copied from Bava qamma ⁴⁶ Warnings given to the witnesses that perjury is a crime and punishable. ⁴⁷ In G and Bava qamma ⁴⁸ Tosephta Bava batra ⁴⁹ Here ends the first sheet of G. ⁵⁰ This sentence, which affirms the correctness of R. Zeˋira’s statement, against R. Abba bar Mamal, is found only here. In contrast to the disqualifications listed in Mishnah Sanhedrin

MISHNAH: By the words of two witnesses or three witnesses shall a death sentence be imposed⁴¹. 19:15. Criminal sentences can be imposed only on the basis of oral testimony, not of circumstantial evidence.. If testimony is confirmed by two, why did the verse mention three? Only to compare three to two. Since three may prove that two are plotters, two also may prove that three are plotters. And from where even a hundred? The verse says “witnesses”⁴², when it could have been “two or three witnesses”, implies that any number of witnesses have the same status as do two.. Rebbi Simeon says, since two are executed only if both are plotters, so three are executed only if all three are plotters. And from where even a hundred? The verse says “witnesses”⁴², when it could have been “two or three witnesses”, implies that any number of witnesses have the same status as do two.. Rebbi Aqiba says, the third is only mentioned to punish him harshly and to identify his judgment with that of the others. If the verse in this way punished the accessory of criminals like criminals⁴³, so much more it will reward the accessory to one who keeps the commandments as one who keeps the commandments. Since the testimony of two [witnesses] is invalid if one of them is found to be a relative or a disqualified person⁵¹ either 3:6 or 3:7, there is only one testimony, insufficient by biblical standards., the same holds for three if one of them is found to be a relative or a disqualified person. From where even for a hundred? The verse says⁴², when it could have been “two or three witnesses”, implies that any number of witnesses have the same status as do two., witnesses. Rebbi Yose said, when has this been said? In criminal trials, but in civil trials the testimony should be upheld by the remaining [witnesses]⁵². 19:19 is formulated for criminal trials, the argument that any number of witnesses have the same status as two witnesses is not necessarily true for civil trials. In money matters, any two qualified witnesses can testify. For example, it is admissible that marriage contracts be signed first by two qualified witnesses and after them by any number of family members of both sides (cf. Gittin 8:12, Note 105).. Rebbi says, both in criminal and in civil trials, if they warned them⁵³. But if they did not warn them, what should two brothers do who were eye-witnesses to a murder?

footnotes: ⁴¹ Deut ⁴² The repetition, two witnesses or three witnesses ⁴² The repetition, two witnesses or three witnesses ⁴³ Since the third witness is not essential for proof in court. ⁵¹ If one witness is disqualified by the rules of Mishnah Sanhedrin ⁴² The repetition, two witnesses or three witnesses ⁵² Since Deut ⁵³ If in a criminal case a disqualified person or two related persons both warned the perpetrator not to engage in criminal behavior, their action makes them witnesses and all witnesses have to be disqualified under the argument of Mishnah 12. But if they were eye witnesses but not those who delivered the warning, they are not forced to testify; the trial may proceed without them.

HALAKHAH: “Rebbi Yose said, when has this been said?” ⁵⁴ 17:6, 19:15. (In addition, rendering judgment in a criminal trial on the basis of a single testimony is forbidden in Num. 35:30.) While in both verses of Deut. the background clearly is that of criminal trials, the redundancy is taken as a sign that in civil trials (not on arbitration panels) the biblical rules of evidence of criminal trials have to be followed. The Babli disagrees in the name of Rav Nahman (6b). It should have been said for civil trials and would not have been needed for criminal trials. If it had been said for civil trials, not for criminal trials, I would have said that in the relaxed standards of civil trials three [witnesses] may prove two [witnesses] to be plotting but two may not prove three to be plotting. From where even a hundred? The verse says, witnesses⁴², when it could have been “two or three witnesses”, implies that any number of witnesses have the same status as do two.. Or if it had been said for criminal trials, not for civil trials, I would have said that according to the stringent standards of criminal trials two [witnesses] may prove three [witnesses] to be plotting; three may not prove two to be plotting⁵⁵. From where even a hundred? The verse says, witnesses⁴², when it could have been “two or three witnesses”, implies that any number of witnesses have the same status as do two..

footnotes: ⁵⁴ The argument refers to all Mishnaiot 9–13. The requirement of “two witnesses or three witnesses” for criminal convictions is written in Deut. ⁴² The repetition, two witnesses or three witnesses ⁵⁵ It seems to be clear that in thissentence the positions of “two” and “three” have to be switched, resulting in a sentence completely parallel to the preceding one. ⁴² The repetition, two witnesses or three witnesses

MISHNAH: If two [witnesses] saw him from one window, two from another window, and a person in the middle gives the warning⁵⁶, if partially they can see one another⁵⁷ then this is one testimony. Otherwise, these are two testimonies. Therefore, if one [group] of them is found plotting, he⁵⁸ and they are executed; the second [group] is not prosecutable⁵⁹.

footnotes: ⁵⁶ To a potential criminal not to engage in criminal activity. ⁵⁷ If one of each group of witnesses sees the other or the person in the middle sees one of each group. ⁵⁸ The criminal, convicted on basis of the testimony of the witnesses not found to be perjured. ⁵⁹ If after the convicted person was executed the second group also was found plotting, they cannot be executed (Mishnah 8).

HALAKHAH: “If two [witnesses] saw him,” etc. Rebbi Jeremiah said, look how we are stating here: “If two [witnesses] saw him from one window, two from another window, and a person in the middle gives the warning, if partially they can see one another then this is one testimony. Otherwise, these are two testimonies.”⁶⁰, R. Jeremiah points out that if the single person in the middle sees each group of witnesses, then the testimony is one of “three and three”, i. e., the person in the middle with each one of the groups of two witnesses. It is a single testimony; if one group is found plotting, the entire testimony becomes invalid and nobody can be executed. The criminal cannot be convicted since there is no testimony; the witnesses cannot be executed because not all of them have been shown to be plotting. Others explain that if in each window there are three witnesses and the person in the middle only sees one in each, the two groups of two witnesses that are not seen by the person in the middle form two independent groups of witnesses; the person in the middle does not connect them. In any case, the Babli will not agree (6b). Therefore, if they were three each, this does not apply. Rebbi Yose said, we stated “three each not so.⁶¹ confirms the interpretation, whatever it may be.” We state here what was not stated in all of Sanhedrin: “he and they are executed; the second [group] is not prosecutable.⁶²”

footnotes: ⁶⁰ It is not clear what the argument is; there are at least two very different explanations. In the opinion of Pene Moshe ⁶¹ A baraita ⁶² To contemplate that the rules require a clear miscarriage of justice.

MISHNAH: Rebbi Yose ben Rebbi Jehudah⁶³ says, nobody can be executed unless his two witnesses warned him⁶⁴, as it is said: By the mouth of two witnesses⁵⁴ 17:6, 19:15. (In addition, rendering judgment in a criminal trial on the basis of a single testimony is forbidden in Num. 35:30.) While in both verses of Deut. the background clearly is that of criminal trials, the redundancy is taken as a sign that in civil trials (not on arbitration panels) the biblical rules of evidence of criminal trials have to be followed. The Babli disagrees in the name of Rav Nahman (6b).. Another explanation: By the mouth of two witnesses, that the court may not hear from the mouth of an interpreter⁶⁵.

footnotes: ⁶³ In the Babli and most independent Mishnah mss: “R. Yose” (i. e., ben Halaphta). The reading of the Yerushalmi in Mishnah and Halakhah contradicts Mishnah 2:6. Since the statement of R. Yose ben R. Jehudah is not discussed in Halakhah 2:6, the correct attribution there cannot be determined. Since his statement is not accepted as practice in the Babli, it seems that “R. Yose ben R. Jehudah” is the correct attribution here. ⁶⁴ Warning by a single person is invalid, even if witnessed by two persons. ⁵⁴ The argument refers to all Mishnaiot 9–13. The requirement of “two witnesses or three witnesses” for criminal convictions is written in Deut. ⁶⁵ Testimony and cross examinations are possible only if all judges understand the witnesses without translator. The Babli (6b) permits cross-examination using a translator if the witnesses’ answers are directly understood by the judges.

HALAKHAH: “Rebbi Yose ben Rebbi Jehudah says,” etc. Rebbi Hoshaia stated: The following verse is said about two groups of witnesses. If an oppressive witness arises against a man, a plotting witness who answers to a man. Answering him, not his testimony⁶⁶, the plotting witness, by showing that he could not have been present at the place of the alleged crime or transaction. This paragraph belongs to Mishnah 6.. Do plotting witnesses have to be warned? Rebbi Isaac bar Tevlai in the name of Rebbi Eleazar: Plotting witnesses do not have to accept warning⁶⁷ 32a, this is an anonymous statement accepted without discussion.. Rebbi Abbahu said, we do not take notice of this. Rebbi Jacob bar Dassai said, and there are very cunning people who even if they see their comrades being led out to be killed do not say anything⁶⁸.

footnotes: ⁶⁶ While testimony may not stand up under cross-examination, the worst that can happen to a witness in that case is that the court does not believe him. A criminal conviction can only follow if the new group of witnesses answer him ⁶⁷ In the Babli, Ketubot ⁶⁸ It is not clear whether this statement supports R. Eleazar or R. Abbahu. In the first case, he argues that a special warning about penalties of plotting perjury is unnecessary since the bad guys automatically will stay away as far as possible from the court. In the second case he wants to point out that good people will not be kept away from being witnesses by being admonished by the court about penalties of plotting perjury, and it is a good thing that bad people will be frightened away.

“Whose sentence was passed,” etc. ⁶⁹ 11:6, explained there in Notes 94–102, and Gittin1:1 (Notes 20–21). If somebody wrote all his property over to two persons in one document and the testimony of the witnesses was valid for one but invalid for the other. Rebbi Hila said, Rebbi Joḥanan and Rebbi Simeon ben Laqish disagreed; one said, since it is invalid for one it is invalid for the other, but the other said, it is valid for one and invalid for the other. Rebbi Mana did not specify; Rebbi Abun specified: Rebbi Joḥanan said, since it is invalid for one it is invalid for the other; but Rebbi Simeon ben Laqish said, it is valid for one and invalid for the other. Rebbi Eleazar said, the Mishnah supports Rebbi Joḥanan: “Since the testimony of two [witnesses] is invalid if one of them is found to be a relative or a disqualified person⁵¹ either 3:6 or 3:7, there is only one testimony, insufficient by biblical standards., the same holds for three if one of them is found to be a relative or a disqualified person. From where even for a hundred? The verse says⁴², when it could have been “two or three witnesses”, implies that any number of witnesses have the same status as do two., witnesses.” Rebbi Jacob bar Aḥa said, Rebbi Ḥanina the colleague of the rabbis and the rabbis disagree. One says, the argument of Rebbi Eleazar is correct, but the other says, the argument of Rebbi Eleazar is not correct. For him who says, the argument of Rebbi Eleazar is correct, it is a single testimony and a single warning, and any testimony which is partially disqualified is totally disqualified⁷⁰ 6:23.. For him who says, the argument of Rebbi Eleazar is not correct, it is as if two groups of witnesses came, valid for one and invalid for the other.

footnotes: ⁶⁹ This paragraph refers to Mishnah 12, not 16. It is also found in Ketubot ⁵¹ If one witness is disqualified by the rules of Mishnah Sanhedrin ⁴² The repetition, two witnesses or three witnesses ⁷⁰ Tosephta Bava qamma

MISHNAH: If somebody escaped after sentence was passed, if he is returned to the same court, his case is not reopened. Anywhere two [people] will come forward and say, we testify against this man that he was condemned in court X on the testimony of Y and Z, he shall be executed. Criminal courts apply in the Land and outside the Land. A criminal court which hands out a death sentence once in a Sabbatical period is called terrorist. Rebbi Eleazar ben Azariah said, once in seventy years. Rebbi Tarphon and Rebbi Aqiba say, if we had been members of a criminal court, nobody ever would have been condemned to death there. Rabban Simeon ben Gamliel said, they would have increased the number of murderers in Israel.

HALAKHAH: “Criminal courts apply in the Land,” etc. ⁷¹ 3:10, Babli 7a.“Criminal courts apply in the Land and outside the Land, as it is written⁷². 35:29.: This shall be for you a law statute for your generations, in all your dwellings. And why does the verse say⁷³. 16:18., judges and marshals you shall appoint for yourself in all your gates, in the towns of the Land of Israel. Only that in the Land of Israel one installs judges in every town and outside the Land one appoints them by circuits.” It was stated: ⁷⁴ Deut. 144, Babli Sanhedrin 16b. There and in the sources given in Note 71 the author is Rabban Simeon ben Gamliel. The difference between the anonymous Tanna of the first Tosephta and R. Dositheos b. Yannai / Rabban Simeon ben Gamliel is that according to the first Tanna the claimant in a civil suit has the choice of the jurisdiction to file his suit whereas the dissenters restrict him to courts of his own tribe (L. Finkelstein, Commentary to Sifry).“Rebbi Dositheos ben Rebbi Yannai says, there is an obligation for every tribe to judge his own tribe, as it is written⁷³. 16:18.: Judges and marshals you shall appoint for yourself in all your gates which the Eternal, your God, gives you for your tribes.”

footnotes: ⁷¹ Tosephta Sanhedrin ⁷² Num ⁷³ Deut ⁷⁴ Sifry ⁷³ Deut

⁷⁵ 3:11 in the name of R. Dositheos ben Jehudah. Babli 7a in the name of R. Jehudah b. Dositheos in the name of R. Simeon ben Shetah (editio princeps) but R. Dositheos ben Jehudah in the name of R. Simeon (Munich ms.). Rabban Simeon ben Gamliel stated: People sentenced to death who fled from the Land to outside the Land one executes immediately. People sentenced to death who fled from outside the Land to the Land one does not execute immediately but gives them a new trial.

footnotes: ⁷⁵ Tosephta Sanhedrin