Babylonian Talmud

Rodkinson 1918 — source 15, scan section 37

Hence this Boraitha contradicts Abayi's statement. The objec- tion remains. Shall we assume that the above Amoraim differ in the same respect as the Tanaim of the following : A collusive witness is disqualified in all law cases. So is the decree of R. Mair. R. Jose, however, maintains : Provided he was made collusive in a case of capital punishment ; but if in money matters, he is still qualified to be a witness in criminal cases? Now, shall we say that Abayi holds with R. Mair, who maintains that even from a lenient we disqualify to a rigorous one, and Rabha holds with R. Jose, who maintains that only from a rigorous case we disqualify even to a lenient one, but from lenient to rigorous we do not? Nay ! In accordance with R. Jose's theory, they do not differ. But the point of their difference is concerning R. Mair's theory, as Abayi holds with him, and Rabha maintains that even R. Mair said so only concerning a collusive witness in money mat- ters, which is both wicked against man and wicked against heaven ; but in our case, where the wickedness is in heavenly things only, even R. Mair admits that he is qualified to be a wit- ness in money matters. The Halakha, however, prevails with Abayi. But was he not objected to? The Boraitha which con- tradicts Abayi is in accordance with R. Jose. But even then, is it not a rule, when R. Mair differs with R. Jose, that the Halakha prevails with the latter? In this case it was different, as the edi- tor of the Mishnayoth taught an anonymous Mishna in accord- ance with R. Mair's opinion. And where is it ? This was explained in the following case : Bar Hama had slain a man and the Exilarch told Aba b. Jacob to investigate the case ; and if he really slew the man, they should make the murderer blind. (Since the Temple was destroyed, capital punishments were abolished by Israel, and therefore to make a man blind was to make him dead to the world.) And two witnesses came to testify that he surely killed the man. The defendant, however, brought two witnesses who testified against one of the witnesses. One of them said: In my presence this man stole a kab of barley; and the other said : In my presence he stole the handle of a borer. TRACT SANHEDRIN (SUPREME COUNCIL). 79 And the Exilarch said to him : You wish to disquah'fy this man to be a witness because of R. Mair's theory, but I know of the rule that the Halakha prevails with R. Jose when he differs with R. Mair; and according to R. Jose, if one was collusive in money matters, he is still qualified in criminal cases. Said R. Papa to him : This is so in other cases ; but in this case it is different, as there is an anonymous Mishna in accordance with R. Mair. But which Mishna is it? Shall we assume it to be that which stated that he who is competent to judge criminal cases is competent for civil cases also, which cannot be in accordance with R. Jose, as, according to his theory, there is a witness who was made collu- sive in civil cases and is still competent in criminal cases? Hence it is in accordance with R. Mair. But perhaps the cited Mishna does not speak about collusive witnesses, but of such as are incompetent to be witnesses because of their family. Therefore we must say that he means our Mishna which states the follow- ing are disqualified for witnesses : Players with dice, etc. ; and a Boraitha adds : And also slaves. This is the rule in all cases in which women are not allowed to be witnesses — they also are dis- qualified. And this cannot be in accordance with R. Jose, as he holds that they are qualified to be witnesses in criminal cases, for which women are disqualified. Hence it is in accordance with R. Mair. B. Hama then arose and kissed him, and freed him from paying duties all his life. MISHNA IV.: The following are counted relatives who may not be witnesses : Brothers, brothers of father or mother, brothers-in-law, uncles by marriage from father's or mother's side, a stepfather, a father-in-law, the husband of one's wife's sister, they and their sons and their sons-in-law, and also a stepson himself — but the latter's children are qualified. Said R. Jose : This Mishna was changed by R. Aqiba. The ancient Mishna, however, was thus : One's uncle, one's first-cousin, and all those who are com- petent to be one's heirs and also all one's relatives at that time ; but if they were relatives and thereafter became estranged, they are qualified. R. Jehudah, however, maintains that even if a daughter dies and leaves children, her husband is still considered a relative. An intimate friend, as well as a pronounced enemy, is also disqualified. Who is considered an intimate friend ? The groomsman. And who is considered a pronounced enemy ? The one who has not spoken to him for three days because of ani- mosity. And the sages answered R. Jehudah : The children of Israel are not suspected of witnessing falsely because of animosity. 8o THE BABYLONIAN TALMUD. GEMARA: Whence is this deduced? From that which the rabbis taught. It is written [Deut. xxiv. i6] : " Fathers shall not be put to death for the children ... for his own sin," etc. To what end is this written? If only to teach the meaning of it literally, it would not be necessary, as the end of the verse reads, " for his own sin shall every man be put to death." It must therefore be interpreted, fathers should not die by the witnessing of their children, and vice versa. From this is deduced fathers by sons, and vice versa ; and so much the more fathers who are brothers are incompetent to testify for each other. But whence do we know that grandsons (cousins) are also incompetent to tes- tify for each other? It should read, "parents shall not die because of their son." And why " sons " in the plural? To teach that their sons are not competent to testify for each other. But whence do we know that two relatives are not qualified to testify in one case even for a stranger? It should read in the singular, ** and a son for his parents." And why in the plural, " and sons " ? To teach that two sons are incompetent to testify in one case, even for a stranger. But from this is deduced the relatives from the father's side only. Whence, however, do we know that the same is the case with the relatives from the mother's side ? From the repetition of the word " fathers " in the same verse. And as it was not necessary for the relatives on the father's side, apply it to the relatives on the mother's side. But this verse speaks of accusation. Whence do we know that the same is the case con- cerning advantage? From the repetition of the words, " shall not die," which were not necessary in the case of accusation. Apply it, therefore, to cases of advantage. All this, however, is said concerning criminal cases. But whence do we know that it is the