Babylonian Talmud

Rodkinson 1918 — source 15, scan section 46

dogs. However, a similar case came before the sages in Jamnia, and they made it valid, because Tudus the physician testified that not one cow or one swine was sent out from Alexandria in Egypt of which the womb was not removed, for the purpose that they should not bring forth offspring. And R. Tarphon ex- claimed thus : O Tarphon, thy ass is gone ! {I.e., I have to sell my ass to pay for the error.) Said R. -Aqiba to him : You are free, as there is a rule that a judge who is appointed by the ma- jority has not to pay for his error. Now, if an error in that which was taught in a Mishna does not hold good and must be rcdecided, why does not Aqiba say : You have erred against a I02 THE BABYLONIAN TALMUD. Mishna? R. Aqiba meant to say both — first: You have erred against a Mishna ; and secondly : Even if you erred in your own opinion you would also be free, because you were chosen by the majority. Said R. Na'hman b, Itz'hak to Rabha : How could R. Ham- nuna object to Shesheth from the case of the cow? Did not Tarphon give it to the dogs ? Hence the cow was no longer in existence, and it could not be redecided. Hamnuna meant to say thus : If the decision should be that the case of one who erred against a Mishna is not to be redecided, it is correct that Tarphon was afraid that he must pay, and R. Aqiba told him that he must not, because he was a recognized judge. But if the Halakha is that in such a case it must be redecided, let Aqiba say to him : How would it be if the cow Avere still in existence — your decision would not remain and the cow would be declared valid ? The same is the case even now that it is not in existence, as you did not yourself give it to the dogs : You had only de- cided that it was invalid, and as your decision does not count, the owner of the cow, himself, has to suffer for his act. R. Hisda, however, explains our Mishna that it means : If the judge himself took from the one who was liable in his eyes and gave to his opponent, only then must he pay from his pocket, but not otherwise. But this would be correct in one case only — namely, if he had made liable the just, then we could say that he took from the just and gave to his opponent. But how could this be done in the second case, in which he has acquitted the one who was liable, as he only said to him : You are not liable ? His decision, " You are free," is counted as if he would take with his hand and give to him. But if so, how is to be understood the following statement of the Mishna, that the judge may retract from this view, no matter if it is concerning defence or accusa- tion, as this can be explained only in case he said to the just, " You are liable," but did not collect from him, as then he may retract and say, " You are not liable " ? But in case he made liable a just man, how could such a case take place, if not by the decision, " You are free "? And it is said above that such a deci- sion is considered as if he would take from one party and give to the other : hence, after such, no retraction can take place. Our Mishna, with its expression, " whether in defence or in accusa- tion," means to say that with the acquittal of one party the other party is accused ; namely, a retraction may take place in behalf of one who was erroneously made liable but it was not as yet col- TRACT SANHEDRIN (SUPREME COUNCIL). lo^ lected, although it is a disadvantage to his opponent, but in case he has acquitted the one who is liable he has to pay from his pocket. But if so, then in criminal cases a retraction could take place only when it is in behalf of the defendant, but at the same time his opponent is not accused. And this can be said if the criminal case was a violation of Sabbath or a case of adultery ; but in case of murder, how can such be found ? But how, if there is a retraction that he is not guilty of slaying a person, who is accused ? It may be said the relatives of the person murdered ; as biblically, if the relatives of the person murdered took revenge on the murderer and slew him, he is freed ; and by the retraction from guilty to not guilty, if the relative should put his hand on the murderer, he would be accused. But could such a thing be sup- posed ? You mean to say, because perhaps the relative of the person murdered will take revenge, therefore no retraction shall take place and the defendant shall be put to death. And secondly, does not the Mishna state, whether concerning defence or accusation ? This difficulty remains. Rabhina, however, says : Even in case he has acquitted the one liable, it may also be found that the judge did it with his hand — namely, in case he had a pledge and the judge took it away from him and transferred it to the borrower. ** Criminal cases,'* &ic. The rabbis taught: Whence do we know that if one was found guilty by the court, and thereafter one came, saying : I know a defence for him, that the case may be retried ? Because it reads [Ex. xxiii. 7] : " Him who hath been declared innocent and righteous, thou shalt not slay." Read : Him who was declared innocent even by one person, you shall not slay (without a reinvestigation). And whence do we know concerning the one who was acquitted by the court, and there- after one says, " I know of a fact which will make him guilty," that he must not be listened to ? From the same cited verse : " Him who hath been declared righteous, ye shall not slay." Said R. Shimi b. Ashi. And just the reverse may be done with a seducer, as the Scripture reads [Deut. xiii. 9] : "You shall not have any pity," etc. R. Kahana infers this from [ibid., ibid. 10] : " You shall surely kill him," etc. R. Zera questioned R. Shesheth : Whence do we know that the same law applies to them who are to be punished with exile ? And the answer was : From an analogy of the expression " mur- der," which is to be found in both cases. And whence do we know that the same is the case with them that are to be punished I04 THE BABYLONIAN TALMUD. with stripes ? From an analogy of the expression " wicked," which is to be found in both cases. And so also is it plainly stated in a Boraitha. " But not to condemn!' Said Hyya b. Aba in the name of R. Johanan : Provided he has erred in a thing which the Sad- duceans oppose ; but if they admit, it must read so plainly in the Scripture. And such a decision is not to be taken in con- sideration at all, as schoolchildren are aware of it ; it must be retried. The same Hyya questioned R. Johanan : How is it if we err in a case of adultery? And he answered : So long as the fire in the stove burns, cut off all that you want to roast, and roast it. {I.e., when you are studying a thing, consider it thor-