Babylonian Talmud

Rodkinson 1918 — source 17, scan section 16

In accord with whom, then, is his theory? With the Tana of the following Boraitha: R. Eliezer said [ibid., ibid. 12]: " Until he have stood before the congregation for trial." To what purpose is this written (is it not self-evident that he is not to be executed without a trial)? Because (27) reads " should kill . . . not guilty of blood " ; lest one say that so it is even if the avenger had killed him before he was tried and found guilty, therefore it reads " until he have stood ... for trial." R. Jose and R. Aqiba, however, infer from the just-cited pas- sage that if the Sanhedrin themselves have seen one killing a man, they must not execute him unless he has been tried before another court and found guilty. The rabbis taught: It reads (26): " Should at any time pass the boundary," etc., which means intentionally, but whence do we know as to if he pass unintentionally? Therefore, " at any time," which would be superfluous if not signifying this case. But is there not a Boraitha to the effect that if one has killed intentionally he is put to death, etc.? This presents no diffi- culty: the Boraitha cited is in accordance with him who holds that the Scripture speaks in accordance with human language, while the rabbis do not hold so. Said Abayi: It seems to me that he who holds that the Scripture speaks in accordance with human language is correct in this case, because his final case should not be more rigorous than the beginning. In the begin- ning if he had killed a man intentionally he is put to death, and TRACT MACCOTH (STRIPES). 33 if unintentionally he is exiled ; and the same is to be his final case: if he goes out of the limit intentionally, he is killed; but if unintentionally, he must be returned to his exile. If a father has killed a son unintentionally, his other son may be considered the avenger in accordance with one Boraitha; another Boraitha, however, states that he must not be so consid- ered. Shall we assume that one is in accordance with R. Jose and the other with R. Aqiba? How can such be borne in mind? Is it not decided (Sanhedrin, p. 246) that a son must not be ap- pointed by the court to punish his father with whatsoever pun- ishment, etc. ? Therefore, we must say that one Boraitha speaks of his son, and the other of his grandson. MISHNA VIIL\ A tree placed in the limit, but its branches extending outside of it or vice versa, in any case the inclination of the branch must be considered. GEMARA: There is a contradiction from the following: A tree which stands inside but is inclined outside, or vice versa if from opposite the surrounding wall and inside, it is considered as inside; and if the same were inclined outside it is considered as outside?* Do you contradict tithe with cities of refuge? Concerning tithe the Scripture relies upon the surrounding wall of the city, but concerning the cities in question it relies upon the dwelling, and one can use his dwelling under the branch but not upon the root of a tree. Rabh Ashi explains the expression of the Mishna, " the inclination of the branch must be consid- ered," with also, i.e., the inclination must also be considered, and so much the more the root of it. MISHNA /X: If one killed accidentally in the city of ref- uge, he is to be exiled from one neighborhood to another; and if such happen to a Levite, he is to be exiled from one city to another. GEMARA: The rabbis taught: It reads [Ex. xxi. 13]: " Will I appoint thee a place," etc., i.e., while thou art still alive. "Whither he shall flee" signifies that if such happen while Israel was still in the desert, they were exiled. And where to? — to the camp of the Levites. From this it was said that if it happen to a Levi that he killed, he is exiled from one district to another; and even if he was exiled to the district in which he resides, it protects him. And R. A'ha b. R. Aika said : * This Mishna is concerning the second tithe which must be eaten inside of Jerusalem only. 3 34 THE BABYLONIAN TALMUD. This may be inferred from [Numb. xxxv. 28]: " Because in the city of his refuge shall he remain," i.e.^ " his refuge" means which was his before he was exiled. MISHNA X. : Similarly, if a murderer was exiled to the city of refuge and the townsmen like to honor him, he has to say to them : " I am a murderer " ; and if they say it does not matter, he may accept. The exiled have to pay to the Levites rent for their dwellings. So R. Jehudah. R. Mair, however, said: They have not. If, after the high-priest's death, he returns to his city, he is returned to that office which he occupied before {e.£^., head of a college), according to R. Mair. R. Jehudah, however, maintains: He must not occupy the same. GEMARA: Said R. Kahana: The Tanaim of the Mishna differ concerning the rent in the six cities in question only, for one explains the expression " unto you " to mean for protection only, and the other one explains it " unto all your necessities." However, on the addition of 42 cities all agree that they have to pay rent. Said Rabha to him: There cannot be any doubt in the explanation of " unto you," which certainly means to all your necessities, and therefore it is the contrary: they differ concerning the 42 cities ; the one holds they were added only for protection, and the other holds they were added on equal terms with the six; but concerning the six themselves all agree that there was no rent. " He returns to his office." The rabbis taught: It reads [Lev. XXV. 41] : " And he shall return unto his own family, and unto the possessions of his father shall he return," i.e., he may return only to his family, but not to the oflfice which his parents occupied. So R. Jehudah. R. Mair, however, said he may return to the oflfices of his parents, and the same is the case with exile. And this is inferred from the pleonastic words, " shall he return." What does it mean, " the same is with exile"? As the following Boraitha: The murderer shall return to the land of his possession, i.e., he may return only to the land, but not to the office of his parents. So R. Jehuda. R. Mair, however, maintain*: He may also occupy the place of his parents, because of the analogy of expression " return," which is mentioned in both places, Ex. xxi. aad Numb. xxv. CHAPTER III. WHO IS SUBJECT TO THE PUNISHMENT BY STRIPES.— THE DETAILS OF THE PROCEDURE REGARDING THE EXECUTION THEREOF. — WHAT CIRCUMSTANCES FREE THE CULPRIT THEREFROM. — THE RESPECTIVE DUTIES OF THE THREE JUDGES WHO MUST WITNESS THE EXECUTION. MISHNA /. : To the following stripes apply: He who had intercourse with his own sister, with his sister of his father or his mother, or the sister of his wife, with the wife of his brother or his father's brother, or with a woman while menstruating.