Babylonian Talmud

Rodkinson 1918 — source 15, scan section 47

oughly to prevent questions. You have heard from me that, in a thing which the Sadduceans admit, his decision is not counted. Is not adultery one of these ?) '^ All of them" etc. Does the Mishna mean that even the witness who had accused him may also thereafter defend him ? Then our Mishna is in accordance with R. Jose b. Jehudah, and not in accordance with the rabbis of the following Boraitha : It is written [Num. xxxv. 30] : " But one witness shall not testify against any person to cause him to die." It means whether to defend or to accuse. Jose b. Jehudah, however, maintains that he may testify to defend, but not to accuse. (Hence our Mishna is not in accordance with him.) Said R. Papa : Our Mishna with its expression all, means to add one of the disciples who sat in a row before the judges, and such may make use of his opinion according to all. What is the reason of R. Jose's statement ? Because it reads " to cause him to die," we infer that only to accuse he must not testify, but to defend he may. But if so, why do the rabbis differ? Said Resh Lakish : Because it appears that the witness is interested in this case. And what do the rabbis infer from the words " to cause him to die " ? They apply this to one of the disciples, as we have learned in the following Boraitha : If one of the .witnesses says : " I have something to say in defence of the defendant," whence do we know that he must not be listened to ? From the verse cited : " One witness shall not tes- tify." And whence do we know, if one of the disciples say, " I have something to say to the disadvantage of the defendant," that he must also not be listened to? From the same : "One shall not testify to cause him to die." " Only to acquit, but not to condemn." Said Rabh : This is TRACT SANHEDRIN (SUPREME COUNCIL). 105 said only at the time they discuss this matter ; but at the time of the conclusion he may change his views from defence to accusation also. An objection was raised from the following: " On the morrow they arise early and come to the court. He who defended has to say : I defended yesterday and am of the same opinion to-day. And he who accused has also to say : I accused, and am of the same opinion to-day. However, he who had accused may change his view to defence, while this is not allowed to him who defended." Now, on the morrow it is time for the conclusion, and it nevertheless states that the defendant may not change his view? According to this theory, no discus- sion is to be prolonged on the morrow ; and this is certainly not so. Hence the Boraitha means that he must not do so at the time of discussion. Come and hear another objection : " All who take part in the discussion may explain their reasons, until one of the accusers shall yield to one of the defenders (and then the majority of one will suflfice to acquit)." Now, if you say that one may change his view from defence to accusation, why does not the Boraitha state, "or to the contrary "? It is simply because the Tana of the Boraitha does not care to repeat a matter of accusation. Come and hear another objection : " R. Jose b. Hanina said : If one of the disciples has defended and dies at the time of the conclusion, his view should be considered as if he were still alive." And why ? Let it be said that if he were alive he might retract from his view ? This is no objection, as in reality he did not re- tract. But how can you explain that the decision of R. Jose b. Hanina may correspond with Rabh's statement? Was not a message sent from Palestine as follows : R. Jose's statement denies our master's (Rabh's) statement ? Nay, the message was just the contrary : R. Jose's statement does not deny the state- ment of our master in Babylon. " Discussed in the daytime,'' etc. Whence is this deduced ? Said R. Aha b. Papa: From [Ex. xviii. 22]: "And let them judge the people at all times." But how is it to be inferred from this that the conclusion must not be at night, and the discussion may ? This is in accordance with Rabha, who has propounded a contradiction from the just cited verse to that of Deut. xxi. 16 : "Then shall it be, on the day* when he divideth . . . what * In Leeser's version it is not mentioned "on tiie day," notwithstanding: that the text so reads, which, according to the sense, may mean "the time." The Talmud, however, takes it literally. io6 THE BABYLONIAN TALMUD. he hath " — on the day, " but not at any time " ? And the an- swer was that the beginning of the trial must be in the daytime, but the conclusion maybe even at night-time in civil cases. Our Mishna is not in accordance with R. Mair of the following Boraitha: It reads [ibid., ibid. 5] : " Every controversy and every plague."* What have plagues to do with controversies? The Scripture compares controversies to plagues, in order to apply the law of the latter to the former. As concerning plagues it must be in the daytime [Lev. xiii. 14] : " But on the day," etc., the same is the case with controversies. And also as, concerning plagues, it cannot be judged by one who is blind, as the priest must see the signs, the same is the case with controversies. And also the law concerning controversies, which must not be judged by relatives, applies to plagues — that the priest must not be a relative of him who has the plague. In the neighborhood of R. Johanan there was one who was blind who used to judge cases, and R. Johanan did not protest. But could R. Johanan be silent in such a matter? Is it not against his own decision ? Did not he himself declare that the Halakha always prevails with an anonymous Mishna, and there is one which states : Every one who is qualified to judge is also qualified to be a witness? However, there are some who are qualified to witness, but not to judge; and the same R. Johanan has declared that it means one who is blind of one eye, who is qualified to witness, but not to judge. Hence one who is blind, who is disqualified to be a witness because he cannot see, ought also to be disqualified to judge? R. Johanan found another anonymous Mishna for his basis, namely : " Civil cases may be discussed in the daytime and the conclusion at night," which is the same as a case of one who is blind. But Avhy does he give preference to the latter Mishna, and not to the first ? If you wish, it may be said because the latter treats of a majority, while the first treats of an individual. And if you wish, it is because the latter is taught concerning the laws of trying cases. "//" they did not come to a conclusion," etc. Whence is this deduced ? Said Shini b. Hyya : From [Num. xxv. 4] : " Take all the heads of the people and hang them up before the Lord in