Babylonian Talmud: Tractate Sanhedrin

Folio 86a

Now, a tanna recited [this Baraitha] before R. Shesheth. whereupon he observed: I learned. 'R. Simeon said, [if a man be found stealing a person] from his brethren, [implies that he is not liable unless he] withdraws him from the control of his brethren, [i.e., relations].' yet you say that he is liable!¹  Read [instead], 'He is exempt.' But what difficulty is this: perhaps the latter is R. Simeon's view [only]. and the former the Rabbis'? — You cannot think so, for R. Johanan said: [The author of] an anonymous Mishnah is R. Meir; of an anonymous Tosefta, N. Nehemiah; of an anonymous [dictum in the] Sifra, R. Judah; in the Sifre, R. Simeon;²  and all are taught according to the views of R. Akiba.³

IF HE ABDUCTS HIS OWN SON, etc. What is the reason of the Rabbis? — Abaye answered, The Writ saith, If a man be found [stealing any of his brethren etc.] thus excluding one [sc. the victim] who is [ever] to be found [with him].⁴  R. Papa said to Abaye: If so, [when Scripture saith,] If a man be found lying with a woman married to a husband,⁵  will you also interpret, 'If [a man] be found, as excluding [a woman] who is immediately accessible [i.e., 'found with him']: e.g., in the house of so and so,⁶  where [the women] are within easy reach,⁷  are they [their lovers] exempt? — He replied: I deduce it from [And he that stealeth a man, and selleth him,] and he be found in his hand.⁸  Raba said: Therefore, the instructors of children and teachers of students are [regarded] as having their charges ready to hand, and hence are not punished [for abducting them].

IF HE KIDNAPPED A SEMI-SLAVE AND SEMI-FREEMAN, etc. We learnt elsewhere: R. Judah said: Slaves have no claim for shame.⁹  What is R. Judah's reason? — The Writ saith, When men strive together, a man with his brother,¹⁰  teaching that this applies only to] one who has fraternal relationship, thus excluding a slave, who has no fraternal relationship.¹¹  But the Rabbis maintain: He [the slave] is his brother in [obligation to fulfil] the [Divine] precepts. Now, in this case [abduction], how is the verse interpreted? — R. Judah maintains, [If a man be found stealing any of his brethren of the children of Israel:] of his brethren excludes slaves; the children of Israel excludes a semi-slave, and a semi-freeman; of the children of Israel¹²  likewise excludes one who is a semi-slave and semi-freeman.¹³  Thus, one limitation follows another, which always indicates extension.¹⁴  But the Rabbis do not agree that of his brethren excludes slaves, since they are his brethren [in obligation to fulfil] the [Divine] precepts; [whilst as for the double limitation implied in] 'the children of Israel, and of the children of Israel, one excludes a slave, and the other excludes a semi-slave and semi-freeman.¹⁵

Whence do we learn a formal prohibition¹⁶  against abduction?¹⁷ — R. Josiah said: From Thou shalt not steal.¹⁸  R. Johanan said: From They shall not be sold as bondsmen.¹⁹  Now, there is no dispute: one Master states the prohibition for stealing [i.e., abduction], the other Master for selling [the kidnapped person].

Our Rabbis taught: Thou shalt not steal. — 20 Scripture refers to the stealing of human beings. You say, Scripture refers to the stealing of human beings; but perhaps it is not so, the theft of property [lit., 'money'] being meant? — I will tell you: Go forth and learn from the thirteen principles whereby the Torah is interpreted. [one of which is that] a law is interpreted by its general context: of what does the text speak? of [crimes involving] capital punishment: hence this too refers [to a crime involving] capital punishment.²¹

Another [Baraitha] taught: Ye shall not steal:²²  The Writ refers to theft of property. You say thus, but perhaps it is not so, Scripture referring to the theft of human beings? — I will tell you: Go forth and learn from the thirteen principles whereby the Torah is interpreted,[one of which is that] a law is interpreted by its general context. Of what does the text speak? of money matters;²³  therefore this too refuse to a money [theft].

It has been stated: If the witnesses of the abduction or those of the sale of human being were proved zomemim,²⁴  — Hezekiah said: They are not executed; R. Johanan maintained that they are. Now Hezekiah's ruling agrees with the view of R. Akiba, viz., [At the the mouth of two witnesses, or at the mouth of three witnesses, shall] the matter [be established]:²⁵  the whole matter, but not half of the matter;²⁶  whilst R. Johanan's view agrees with that of the Rabbis, viz., the matter implies even half the matter.²⁷  Yet Hezekiah admits in the case of a 'stubborn and rebellious' son, that if the last witnesses were contradicted, they are executed, since the first could say,

1. For selling him to his father, etc.
2. Rabbi (R. Judah ha-Nassi), in compiling the Mishnah, drew upon earlier collections, of which each Tanna possessed one. An anonymous Mishnah is based upon R. Meir's collection, though not necessarily reflecting R. Meir's views. For this interpretation. v. Weiss, Dor. Vol. II, pp. 51f; Strack, Introduction to Talmud and Midrash, p. 21, The Tosefta, as its name implies ('addition') is a further elaboration and development of Tannaitic teaching, closely allied to the Mishnah. The relation of the Mishnah to the Tosefta is a problem which has so far remained unsolved; v. Strack, op. cit., pp. 74ff. The Sifra (also called [H]) is the traditional interpretation of Leviticus, to which is prefaced an exposition of the Thirteen Principles of Hermeneutics of the School of R. Ishmael. Though ascribed here to R. Judah b. Ila'i, our version contains many additions by later teachers, and its final compilation is generally assigned to R. Hiyya. It is also occasionally referred to as the Sifra debe Rab (of the College of Rab). Whether this is to indicate Rab's authorship is one of the literary problems, among others, which the Sifra presents. (V. Weiss, op. cit pp. 193 seqq.) The Sifre contains the commentary on Num. V to the end of Deut. This too contains additions later than R. Simeon, to whom it is here ascribed, and is a composite work shaped by the School of Rab (v. Weiss, op. cit.), but in any case the Sifre now extant is not identical with the Talmudic Sifre.
3. Hence, since both are anonymous passages in the Sifre, R. Simeon is the author of both.
4. '(Shall) be found' [H] implies that the abducter goes out of his way and is thus 'found' where he should not be; but he does not go out of his way in abducting his child, who is always to be found with him.
5. Ibid. XXII, 22.
6. R. Papa alluded to a definite house, but suppressed the name.
7. Lit., 'to be found with them.' A number of families lived there together, so that it would have been comparatively easy for a man to seduce his neighbour's wife.
8. [H] Ex. XXI, 16. This is redundant and therefore shows that the law applies only to a person who 'is found' in his (captor's) hand as a result of abduction, and not to one who was 'to be found' in his hand before too.
9. B.K. 87a. If one shamed a slave, there is no monetary liability.
10. Deut. XXV, 11. This treats of indecent assault in the course of a quarrel, and the compensation that must be made (v. 12 q.v.) is interpreted as meaning monetary damages for the humiliation sustained.
11. Rashi in B.K. 88a, explains: he has no fraternal relationship with a Jew, viz., he cannot marry into the Jewish fold. A marginal explanation given there is: he has no forbidden fraternal relationship, i.e., he may marry his fraternal sister and his brother's wife. Rashi's interpretation here is different, but Tosaf. refutes it.
12. 'Of' (Heb [H]) being partitive, implies limitation.
13. There being nothing else which it can exclude.
14. Just as in English a double negative denotes a positive, so it is one of the principles of Talmudic exegesis that the double exclusion of the same thing intimates that it is to be included.
15. Therefore, the double limitation applies to two different persons, not to one and the same person, and hence remains a limitation.
16. v. p. 364. n. 2, cf. also supra p. 382.
17. Since Deut. XXII, 7 and Ex. XXI, 16 merely state the punishment.
18. Ex. XX, 15. The object of the theft being unspecified, it applies to a human being too. So in general.But in the next passage it is shown that it refers particularly to abduction.
19. Lev. XXV, 42.
20. Ex. XX, 15.
21. The Decalogue, of which this is part, deals in general with capital offences, e.g., idolatry, the desecration of the Sabbath, murder. Hence this too must be similar, and abduction is the only theft so punished.
22. Lev. XIX, 11.
23. Cf. ibid, 10-15.
24. V. Glos.
25. Deut. XIX, 15.
26. I.e., the two witnesses must testify to the entire matter. If two, however, testify to one part, and two to another, their testimony is invalid. Here also, the abduction is only half an offence, likewise the sale in itself proves nothing, as the vendor might have sold his own slave. Therefore their testimony cannot convict the accused, and consequently they themselves, if proved zomemim, are not executed.
27. I.e., if two witnesses attested a portion of an act or an offence, and another two witnesses the rest, their evidence is combined and the accused punished. Consequently, if they are proved zomemim, they receive themselves the punishment they sought to impose.

Abaye said: All agree in [one matter relating to] a 'stubborn and rebellious son'; and all agree in [a second relating to] a 'stubborn and rebellious son'; and there is a dispute [in the case of] a 'stubborn and rebellious' son. [Thus:] 'All agree in [one matter relating to] a "stubborn and rebellious" son, viz., with respect to the first witnesses [proved zomemim], that they are not slain, since they can plead, 'We came to have him flagellated.' 'And all agree in a second matter relating to a "stubborn and rebellious" son,' viz., with respect to the last witnesses, that they are executed, for since the first witnesses could plead. 'We came to have him flogged,' these attest the entire offence [involving death]. And there is a dispute in [the case of] a 'stubborn and rebellious son,' viz., when two testify that he stole, and two that he ate.¹¹

R. Assi said: If the witnesses of the sale of an [abducted] person are proved zomemim, they are not executed, since the [vendor] could plead, 'l sold my slave.'¹²  R. Joseph said: With whom does this dictum of R. Assi agree? — With R. Akiba, who ruled 'the whole matter, but not half the matter.' Abaye said to him, For on the view of the Rabbis they would be executed? But he gives his reason, 'since etc.'¹³  Hence it may agree even with the Rabbis, providing there were no witnesses of abduction. If so, why state it?¹⁴  — It is necessary [to state this] only if witnesses [of abduction] subsequently appeared.¹⁵  But even so, why state it? — This is necessary only when they made signs [to each other:]¹⁶  I might think that signalling is of consequence; therefore he [R. Assi] informs us that it is of no consequence.

MISHNAH. 'AN ELDER REBELLING AGAINST THE RULING OF BETH DIN' [IS STRANGLED],¹⁷  FOR IT IS WRITTEN IF THERE ARISE A MATTER TOO HARD FOR THEE FOR JUDGEMENT [etc.].¹⁸  THREE COURTS OF LAW WERE THERE,¹⁹  ONE SITUATE AT THE ENTRANCE TO THE TEMPLE MOUNT,²⁰  ANOTHER AT THE DOOR OF THE [TEMPLE] COURT,²¹  AND THE THIRD IN THE HALL OF HEWN STONES.²²  THEY²³  [FIRST] WENT TO THE BETH DIN WHICH IS AT THE ENTRANCE TO THE TEMPLE MOUNT, AND HE [THE REBELLIOUS ELDER] STATED, THUS HAVE I EXPOUNDED AND THUS HAVE MY COLLEAGUES EXPOUNDED; THUS HAVE I TAUGHT, AND THUS HAVE MY COLLEAGUES TAUGHT. IF [THIS FIRST BETH DIN] HAD HEARD [A RULING ON THE MATTER], THEY STATE IT. IF NOT, THEY GO TO THE [SECOND BETH DIN] WHICH IS AT THE ENTRANCE OF THE TEMPLE COURT, AND HE DECLARES, THUS HAVE I EXPOUNDED AND THUS HAVE MY COLLEAGUES EXPOUNDED; THUS HAVE I TAUGHT AND THUS HAVE MY COLLEAGUES TAUGHT. IF [THIS SECOND BETH DIN] HAD HEARD [A RULING ON THE MATTER]. THEY STATE IT; IF NOT, THEY ALL PROCEED TO THE GREAT BETH DIN OF THE HALL OF HEWN STONES WHENCE INSTRUCTION ISSUED TO ALL ISRAEL, FOR IT IS WRITTEN, [WHICH THEY] OF THAT PLACE WHICH THE LORD SHALL CHOOSE [SHALL SHEW THEE].²⁴  IF HE RETURNED TO HIS TOWN AND TAUGHT AGAIN AS HERETOFORE, HE IS NOT LIABLE. BUT IF HE GAVE A PRACTICAL DECISION, HE IS GUILTY, FOR IT IS WRITTEN, AND THE MAN THAT WILL DO PRESUMPTUOUSLY,²⁵  [SHEWING] THAT HE IS LIABLE ONLY FOR A PRACTICAL RULING. BUT IF A DISCIPLE²⁶  GAVE A PRACTICAL DECISION [OPPOSED TO THE BETH DIN], HE IS EXEMPT:²⁷  THUS THE VERY STRINGENCY OF HIS [ORDINATION] IS [A SOURCE OF] LENIENCY FOR HIM.²⁸

GEMARA. Our Rabbis taught: If a thing be outstandingly difficult [yippale] for thee²⁹

1. V. supra 71a. It is there stated that he was first warned in the presence of three, and then flogged (on the testimony of two witnesses), and only if he offended again is he executed. The second offence too, of course, must be attested by two witnesses. Now, if these last two were proved zomemim, Hezekiah admits that they are executed, for their testimony is complete in itself, in so far as it imposes an additional punishment, as explained here.
2. For the mere 'stealing'.
3. Lit., 'and shouldst thou answer'.
4. I.e., if another two witnesses testified to the sale, and then the first two were proved false, they are not executed. The argument is concluded in the next passage.
5. Viz., Thou shalt not bear false witness against thy neighbor, Ex. XX, 16.
6. I.e., they could formally be warned against falsely testifying on the grounds that should they be proved Zomemim after another two witnesses had attested the sale, they would be executed.
7. Even if the death sentence is not imposed.
8. This concludes the proof that Hezekiah must hold that abduction alone is punished by lashes. For since it has been shown that in his opinion witnesses who testify falsely thereto are flogged, it follows that abduction itself is so punished, as it is a general role, stated in Deut. XIX, 19, that the witnesses receive only the punishment they sought to impose.
9. And only the two together incur capital punishment: therefore the witnesses of abduction have not testified to a capital offence.
10. For, as above, abduction itself is not punished by flagellation; therefore it is part of a capital offence.
11. V. supra 71a. Thus each attested half an offence. Hence according to Hezekiah, who agrees with R. Akiba's dictum, 'the whole matter, but not half the matter', they are exempt; but in R. Johanan's view, based on that of the Rabbis, 'the matter, and even half the matter,' they are liable.
12. Hence he was not liable to death on their evidence, and therefore they in turn are also exempt.
13. I.e., that the purchaser can plead not guilty altogether, so that their testimony is not even 'half the matter'.
14. For it is obvious.
15. And on the combined testimonies the accused was convicted. Yet, if the first witnesses of the sale were falsified, they are not punished, since they can plead: 'we did not know that others would testify to the kidnapping.'
16. Either the intending witnesses of abduction to those of the sale that they were going to give evidence, or the witnesses of the sale to two others in court, urging them to testify to the abduction.
17. I.e., in a matter not explicitly stated in the Torah but for which Beth din must give a ruling, either by Biblical interpretation or their own reasoning. This interpretation is borne out by the general context of the Mishnah. Cf. also R. Judah and R. Simeon's views on same (87a), and the while of the discussion in the Talmud as to the type of rulings in virtue of which one is adjudged a rebellious elder. Krauss, Sanhedrin-Makkot a.l. however points out that the verb [H] is constructed with [H] or [H] of the accusative of person, not [H]. Consequently he translates: The elder (who is declared) rebellious on account of a ruling of the (upper) Beth din. Cp. Rashi, on Mishnah, 84b.
18. Deut. XVII, 8. This proves that the reference is to a question not explicitly dealt with in the Torah, since it is 'too hard' for judgement.
19. In Jerusalem; cf. Then thou shalt arise, and get thee up into the place which the Lord thy God shall choose (ibid.).
20. (In the east gate of the Women's Court (Rashi).
21. Is the Court of the Israelites.
22. This was partly within and partly without the Temple (Yoma 25a).
23. The elder and the other members of the local Beth din, with whom he was in dispute.
24. Ibid. 10.
25. Ibid 12a name="86b_26"> I.e., one who is not ordained, and hence has no authority to give a ruling at all.
26. Because his ruling is not likely to be accepted.
27. It was exceedingly difficult to obtain ordination, none under the age of forty receiving it. This very difficulty protected him, since without being ordained he was not liable to the penalty of a rebellious elder.
28. [H] Ibid. 8.