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Nezikin (Law) Flogging (Tractate Macoth), The Babylonian Talmud In Selection

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The Babylonian Talmud in Selection, by Leo Auerbach, [1944] WHAT is to be done with witnesses who testify falsely? If they say of a priest: "We testify that such-and-such a one is the son of a divorcee, or the son of a woman who performed Halizah, one cannot say that the false witness should become the son of a divorcee, or the son of a woman who performed Halizah instead of the priest, but he receives forty lashes. If they testify that a man should be exiled, one can't say that they should be exiled in his stead, but they receive forty lashes. If witnesses said: "We testify that so-and-so owes his neighbor two hundred zuz" and they were found to have testified falsely, they are flogged and they must, also, pay the sum involved, because the ruling that inflicts upon them the punishment of lashes is other than that which governs their liability for payment. This is the opinion of Rabbi Meir, but the Sages say: If a man is ordered to pay, he is not ordered to be flogged too. If they said: "We testify that so-and-so is liable to forty lashes," and they are found to have testified falsely, they receive forty lashes in accord with the verse: (Exodus xx, 16) Thou shalt not bear false witness against thy neighbor, and as many again because: (Deuteronomy xix, 19) Then shall ye do unto him, as he had thought to do. This is according to Rabbi Meir, but the Sages say: They receive only forty lashes. Penalties of money are divided among the false witnesses, but the penalty of lashes is not divided. How? If, for instance, they testified that so-and-so owes two hundred zuz and it was found that they testified falsely, they divide the fine among them; but if they testified that so-and-so is liable to forty lashes, and it was found that they testified falsely, each one receives forty lashes. The decisions of the Sanhedrin are valid in the country and outside of it. A Sanhedrin that condemns a man to death once in seven years is considered a destructive body. Rabbi Eliezer ben Azariah said: Once in seventy years. Rabbi Tarfon and Rabbi Akiba said: Had we been members of the Sanhedrin, there never would be anyone condemned to death. Rabbi Gamaliel said: They too would have increased bloodshed. (Mishna) FROM CHAPTER I   THE following are banished into exile: Whoever kills someone through an error; for instance: if one was rolling a roof with a roller, and it fell and killed a man, or he was lowering a barrel and it fell and killed a man, or a man was on a ladder and fell on someone and killed him—all these are banished into exile. But if he was pulling up the roller and it fell on someone and killed him, or if one was drawing up a barrel and the rope snapped and caused the barrel to fall on someone and kill him, or if one was going up a ladder and fell down on a man and killed him—All these are not exiled. This is the rule: Whoever kills someone coming down is banished into exile; but otherwise, he is not exiled. If a man threw a stone into a public place and killed someone, he is banished into exile. Rabbi Eliezer ben Jacob says: If after the stone has left the man's hand someone put out his head and it struck him, the man is not guilty. If a man threw a stone into his own yard and it killed someone, if that person had the right of entry into the yard, the man should be banished into exile, but if the person had no right there the man is not exiled, for it is written: (Deut. xix, 5) As when a man goeth into the wood with his neighbor. . . . The wood is a place where the injured and the injurer have a right to enter. From this follows that the yard, into which the other has no right of entry, exempts the householder. Rabbi Abba Saul says: This applies to every accidental killing in an optional act such as the hewing of wood, but it excludes the father who hits his son, or the teacher who strikes his pupil, or the clerk of the court who administers the lashes. (Mishna)   IF HE throws a stone into a public place, is he a deliberate offender? Rabbi Samuel ben Isaac said: If it happens while he is demolishing a wall? Then he should take precautions. Suppose he was demolishing it at night,—he should be doubly careful. If he were loading the debris on a rubbish pile? What sort of a place was it? If it is a public thoroughfare, then he is guilty of negligence; but if it is not a thoroughfare, then it is mischance. [paragraph continues] Rab Papa said: This is a case of a rubbish pile which people are apt to pass at night, but are not using it as a rule during the day time. It so happened that someone came there during the day time. In this instance it is not a case of negligence, because no one is expected there during the day time. It is, however, a case of mischance, because it does occur that people pass it sometimes. (Gemara)   A FATHER may escape into exile for the death of his son, and a son may escape into exile for the death of his father. All are banished into exile for the death of an Israelite, and an Israelite goes into exile for the death of all others with the exception of that of a resident stranger. And a resident stranger is exiled only for the death of another stranger. A blind person does not go into exile, so says Rabbi Yahuda, but Rabbi Meir says: He does go. An enemy of the slain man does not go into exile. Rabbi Yosi ben Yehuda says: An enemy should be put to death, because he is a "potential deliberate murderer". Rabbi Simon says: There is an enemy that may escape into exile, and there is an enemy that may not escape. This is the rule: All those of whom it may be said that they killed deliberately, may not escape into exile; but those of whom it may be said that they killed through accident, they may escape into exile. Whither shall they be banished into exile? To the cities of refuge: To three cities on the other side of the Jordan, and to three cities in Canaan, as it was said: (Numbers xxxv, 14) Ye shall give three cities on this side of the Jordan, and three cities shall ye give in the land of Canaan. Rabbi Yosi ben Yehuda said: At first they used to send to the cities of refuge, those that killed deliberately and those that killed through an accident. The court would then send and bring them from there. Whoever was condemned to death was executed, if he were not condemned, he went free; and whoever was sentenced to be banished was returned to the city of refuge, for it was said: (Numbers xxxv, 25) And the congregation shall restore him to the city of his refuge, etc. . . . If a man-slayer has escaped to a city of refuge, and the citizens of the town wish to do him honor, he must say to them: "I am a man-slayer." If they answer: "Even so we wish to do honor unto you," he may accept it from them, for it was said: (Deuteronomy xix, 4) And this is the case of the slayer. They used to pay the salary of the Levites. Rabbi Meir says: They need not pay them their salaries. He may resume the office that he held before, this is according to Rabbi Meir, but Rabbi Yehuda says: He does not resume his former office. (Mishna) FROM CHAPTER II   THE following receive lashes: He who has intercourse with his sister, his father's sister, his mother's sister, his wife's sister, his brother's wife, his father's brother's wife, or a menstruant. A High Priest who takes a widow unto him, a priest who takes a divorcee or a Haluzah, a layman who takes a bastard or a Nathina, or the daughter of a layman who married a bastard or a Nathina. If a High Priest married a woman that was a widow and a divorcee, he is liable on two counts, but if he married a woman who is a divorcee and a Haluzah, he is guilty only on one count. He is flogged who eats Holy Food while he is unclean, or he who enters the Sanctuary while he is unclean. He who eats Fat or the Blood, the Remains or the Refuse of Offerings, or that which became unclean, or who slaughtered an Offering outside the Temple, or eats leavened food during Passover, or he who eats or performs work on the Day of Atonement. . . . (Mishna)   WE ARE taught here only of those transgressions that incur death at the hand of the Lord, but not those that incur the death penalty by sentence of the court. The Mishna here teaches according to the opinion of Rabbi Akiba. For we have been taught that both those who are liable to death at the hand of the Lord and those who are liable to the death penalty by sentence of the court, incur also the penalty of forty lashes.—These are the words of Rabbi Ishmael. Rabbi Akiba says that only those who are liable to death at the hand of the Lord incur the penalty of forty lashes, for if they should repent, the court of Heaven may grant them forgiveness; while those who incur the death penalty by sentence of the court are not subject to the penalty of "forty lashes", for if they should repent, the earthly court cannot grant them forgiveness. Rabbi Isaac says: Those guilty of incest have already been included in the penalty of death at the hand of the Lord; what reason is there for including here the case of the brother and his sister?—To show that this offense is punishable by extirpation only, and not by forty lashes. (Gemara) IF A man shears his head bald, and rounds out the hair on the corners of his head, or shaves the corners of his beard, or makes an incision into his flesh because of the Dead, he is liable to forty lashes. . . . (Mishna)   THE Rabbis taught: (Leviticus xix, 28) Ye shall not make any cuttings in your flesh. One could believe that a man is liable to lashes if he cut his flesh because his house has collapsed, or because his ship was lost at sea. It is stated (Ibid.) For a soul,—This means that one incurs punishment only if he cut his flesh because of the dead. (Gemara)   IF A man writes on his skin "incision writing" he is liable to forty lashes. If he wrote but did not tattoo it, or tattooed but did not imprint it, he is not guilty. He is liable only if he writes and incises it with ink or with eye-paint or anything that leaves a permanent mark. Rabbi Simon ben Yehuda says in the name of Rabbi Simon: He is not guilty unless he has written the name of a god. For it was said: (Leviticus xix, 28) Nor print any marks upon you: I am the Lord. How many lashes are inflicted on a transgressor?—Forty less one, for it was said: (Deuteronomy xxv, 2, 3) By number forty. This means a number close to forty. Rabbi Yehuda says: He gets the full forty; and where does he receive the fortieth? Between his shoulders. When they estimate how many lashes he can stand, it must be a number that is divisible by three. If they estimated that he can stand forty, and after he has received part of the flogging, they say that he cannot stand any more; he is exempt. If they estimated that he can stand eighteen, and after he had received the eighteen lashes they say that he can stand forty, he is exempt from the rest. (Mishna)   WHENCE is this?—Had it been written: "Forty in Number" I would say it actually means forty lashes in number, but now that it is written: "by number forty", it means a number close to forty. Raba said: How foolish are the people who stand up in reverence for the scroll of the Torah, but not for the great men that interpreted the Torah. In the Torah it is written forty lashes, but the Rabbis came, and by their interpretation reduced it by one. (Gemara)   HOW is a person to be flogged? His two hands are bound to a post on either side of him, and the beadle of the synagogue takes hold of his garments.—If they get torn let them be torn, if they get ripped, let them be ripped, till his chest is bared. A stone is placed behind him on which the beadle stands with a strap of calf's hide, it is folded twice and then folded into four, and two straps are attached to it. The handle of the strap is one handbreadth long and one handbreadth wide; and its tip must reach his navel. He gives one-third of the lashes in front, and two-thirds behind. He strikes him neither in a standing nor in a sitting position, but only when he is stooped over, for it was said: (Deuteronomy xxv, 2) The judge shall cause him to lie down. And the one that strikes, strikes with this one hand with all his might. And the reader recites: (Deut. xxviii, 58) If thou wilt not observe to do . . . Then the Lord will make  thy plagues wonderful and the plagues of thy seed, etc., and resumes again from the beginning of the text: (Deut. xxix, 9) Keep therefore the words of the covenant . . . and he concludes with (Psalms lxxviii, 38) But he, being full of compassion, forgave their iniquity, and resumes again from the beginning of the text. If he die under his hand, the man that strikes him is not guilty. But if he gave him one strike more than was ordered; he must escape into exile. If the person being flogged befouls himself with feces or with urine, he is exempt from the rest. Rabbi Yehuda says: A man if he befouls himself with feces, a woman with urine. (Mishna)   SAMUEL said: If he was tied down, and he managed to escape from the court room, he is exempt. A question: If he befouled himself at the first or the second stroke, he is exempt. If the strap broke at the second stroke, he is exempt, but if at the first, he is not exempt. Why is that? Why should this not be the same as in the case of his escape—because there he actually escaped, but in the second instance he really has not escaped. (Gemara)   ALL those who are liable to death at the hand of the Lord. If they have been flogged, they are exempt from the punishment of death at the hand of the Lord: for it was said: (Deuteronomy xxv, 3) Then thy brother should seem vile unto thee.—when he has been flogged, he is considered thy brother. Thus. are the words of Rabbi Hanina ben Gamaliel. Further Rabbi [paragraph continues] Hanina ben Gamaliel said: If one commits one sin, he forfeits his soul, how much more, if he performs one precept, shall his soul be restored to him. (Mishna) FROM CHAPTER III

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1 Ahmed M = "The Hebrew Bible condemns false witnesses, lying, spreading false reports, etc. A charge was established only on the evidence of two or three witnesses"
2 Ahmed M = "If false testimony was suspected, judges conducted investigation and punished if proven guilty."
3 Ahmed M = "Since murder was a capital crime, giving false testimony in a murder case was subject to the death penalty."