{ "language": "en", "title": "English Explanation of Mishnah Makkot", "versionSource": "http://learn.conservativeyeshiva.org/mishnah/", "versionTitle": "Mishnah Yomit by Dr. Joshua Kulp", "status": "locked", "license": "CC-BY", "shortVersionTitle": "Dr. Joshua Kulp", "actualLanguage": "en", "languageFamilyName": "english", "isBaseText": true, "isSource": true, "isPrimary": true, "direction": "ltr", "heTitle": "ביאור אנגלי על משנה מכות", "categories": [ "Mishnah", "Modern Commentary on Mishnah", "English Explanation of Mishnah", "Seder Nezikin" ], "text": { "Introduction": [], "": [ [ [ "Introduction\nThe first six mishnayoth of Makkoth deal with perjuring witnesses, who according to Deuteronomy 20:18-19 are to receive the same punishment that they tried to impose upon the accused. For instance if they testified that a person was guilty of murder and therefore should be executed and then were found to have perjured themselves, they are themselves to be executed.\nThe first mishnah points out cases where this punishment upon the witnesses cannot be carried out, at least not in a simple fashion.", "Although this mishnah begins with the question, how do witnesses become perjurers, we will not learn the mishnaic definition of perjury until mishnah four. This mishnah will instead discuss the punishment of perjuring witnesses who do not, for various, reasons, simply receive the punishment they tried to impose upon the accused.", "How do witnesses become liable [to punishment] as perjurers?
[If they say:] “We testify that so and so [a priest] is a son of a woman who had [formerly] been divorced or a haluzah,” it is not said that each witness should himself be as if he was born of a divorcee or a haluzah; rather he receives forty [lashes]. According to Jewish law a kohen (a priest) is not allowed to marry a divorcee or a woman who had undergone the process known as “halitzah”, the refusal of the levirate marriage (marriage to the husband’s brother upon the husband’s death when he had no children, see Deuteronomy 25:5-10). A child born of the union of a priest and a divorcee or a halutzah loses his priestly status. If witnesses falsely testify that a priest is really the son of a divorcee or a halutzah, they are attempting to cause him to forfeit his status. Although in general a perjuring witness is punished with the punishment which he tried to impose, in this case it is impossible to do so. Rather he is punished by being lashed forty times (Deuteronomy 25:3).", "[If they say]: “We testify that so and so is guilty of [a crime entailing] exile”, it is not said that each witness should himself be exiled; rather he receives forty [lashes]. If witnesses falsely testify that another person committed a crime which entails exile (we will learn which crimes entail exile in chapter two), the perjuring witnesses are not themselves exiled. Rather they received forty lashes.", "[If they say:] “We testify that so and so divorced his wife and has not paid her kethubah” seeing that either today or tomorrow he [the husband] will pay her kethubah, the assessment should be made how much a man will be willing to pay [now] for the ownership of her kethubah, on the condition that if she should be widowed or divorced [he will take it over] but if she should die, her husband will inherit her [estate including the kethubah]. If a person falsely testifies that a man divorced his wife and did not pay her kethubah (marriage settlement) it does not make sense to punish him with a fine equal to the kethubah. Since if the husband should in the future divorce his wife or die and then have to pay the kethubah in any case, by falsely testifying now the perjuring witness didn’t necessarily cause the husband the loss of the kethubah. Rather we assess how much a person would want to pay to take a risk on buying the woman’s kethubah, on condition that if she would be divorced or widowed he would get the kethubah but if she should die before her husband he would not get the kethubah (since the husband inherits his wife). This is what he kethubah is worth at the present moment, while she and her husband are still alive, and this is what the perjuring witnesses therefore have to pay.", "[If they say]: “We testify that so and so owes his friend one thousand zuz on the condition that he will pay him within thirty days”, while the debtor says “ten years”, the assessment should be made how much a man is willing to pay for the use of a thousand zuz, whether he pays them in thirty days or ten years. In this scenario the witnesses falsely testify that a certain person borrowed a thousand zuz and must pay them back within thirty days. The accused does owe the thousand zuz but must pay them back only within ten years and not thirty days. Again, in this case we cannot merely fine the perjurers one thousand zuz since in the end the accused will have to pay back the zuz. Rather the witnesses tried to cause him to lose ten years minus thirty days use of the money, and they are therefore fined whatever a person would pay to use one thousand zuz for ten years minus thirty days." ], [ "[If they say]: “We testify that so and so owes his friend two hundred zuz”, and they are found to be perjurers, they are flogged and ordered to make restitution, because the count which brings upon them the flogging is not the count that brings upon them the necessity to make restitution, these are the words of Rabbi Meir.
But the Sages say: “Anyone who makes restitution is not flogged.”
This mishnah discusses the punishment for a perjuring witness in a financial case.
There is a principle in Jewish law that one cannot receive two penalties for one crime. By testifying falsely a person is committing two crimes that theoretically carry with them two different penalties: 1) flogging for transgressing the commandment against false testimony (Exodus 20:13); 2) compensation for whatever financial loss he tried to impose upon his fellow (Deuteronomy 19:18-19). According to Rabbi Meir, since these are two different crimes categorized in two different Biblical verses, a person can be punished by both being flogged and having to make financial restitution, in this case 200 zuz. However, according to the Sages, anyone who makes restitution cannot be flogged. In this case the perjuring witnesses would pay the 200 zuz and would not be flogged." ], [ "Introduction\nMishnayoth three continues to discuss the laws of perjuring witnesses.", "[If they say:] “We testify that so and so is liable to a flogging of forty lashes, and they are found to be perjurers, they receive eighty lashes, because of, “You shall not bear false witness against your neighbor” (Exodus 20:13) and “You shall do to him as he schemed to do to his fellow” (Deuternomy 19:19), these are the words of Rabbi Meir. But the sages say, “They receive only forty lashes.” This section is actually a continuation of the dispute between Rabbi Meir and the Sages begun in mishnah two. According to Rabbi Meir one can receive eighty lashes for one false testimony, forty for violating the commandment in Exodus and forty for trying to impose forty lashes upon the accused, the violation mentioned in Deuteronomy. According to the Sages, since this was only one act he can receive only one punishment, namely forty lashes, as he tried to impose upon the accused.", "Monetary impositions are shared among the offenders, but the lashes are not shared among the offenders. How so? If they testified that he owed his friend one hundred zuz, and they were found to be perjurers, they divide the corresponding damages proportionately between them. But if they testified that he was liable to a flogging of forty lashes and were found to be perjurers, each one receives forty lashes. Witnesses who perjure themselves in a monetary case are punished by a fine equal to the financial loss they tried to impose upon the accused. In this type of case the witnesses may share the burden of the financial penalty. For instance if they lied with regards to two hundred zuz, each witness will compensate the accused one hundred zuz. If, however, they lied in a case involving lashes, the witnesses do not share the lashes. Rather each witness receives the number of lashes that they attempted to impose upon the accused.", "Questions for Further Thought:
• Section one: What is the connection between the dispute in mishnah three and the dispute that we learned yesterday in mishnah two?
• Section two: Why do you think that the witnesses may share the financial penalty but not share the lashes?" ], [ "Introduction\nMishnah four continues to discuss the laws of perjuring witnesses.", "Witnesses are not condemned as perjurers until they themselves are incriminated; How so? If they said: “We testify that so and so killed a person” and others said to them: “How could you testify to that, as that murdered person or that [alleged] murderer was with us on that very day, at such and such a place?” [then] the witnesses are not condemned as perjurers. But, if these [other] witnesses said: “How could you testify to that, as on that very day, you were with us at such and such a place?’ [then] the former are condemned as perjurers, and are executed by their [the other witnesses] word. This mishnah contains the Rabbinic definition of the type of perjuring witnesses referred to in the Torah. According to the Rabbis witnesses who are contradicted in their testimony are not always to receive the punishment that they tried to impose upon the accused. If other witnesses come and merely contradict the first witnesses’ testimony, while the testimony of the first witnesses may be invalidated, they do not receive the punishment that they tried to impose. After all, why should the court believe the testimony of the last witnesses more than it believes the testimony of the first witnesses? Rather, only if the second set of witnesses testify that the first set of witnesses could not have even seen that which they purport to have seen are the first witnesses punished as perjurers. This is what the mishnah means when it states that the witnesses themselves must be incriminated. In other words the form of perjury referred to in the Torah is only a case where the witnesses lie about their own whereabouts at the time of the crime. If they lie about the crime itself, while they may be punished with lashes for false testimony, they do not receive the punishment they attempted to impose." ], [ "If other witnesses came, and they charged them [with perjury]: then [again] others came, and they [again] charged them [with perjury], even a hundred, they are all to be executed.
Rabbi Judah says: “This is a conspiracy and the first set alone is [to be] executed.”
Mishnah five deals with multiple sets of perjuring witnesses.
According to the opinion in the first section of the mishnah every set of witnesses that perjures themselves with regards to a certain crime can be executed for perjury (if the case was a capital case). If, for instance, Reuven and Shimon testify that Jacob committed a crime which entails the death penalty and then Levi and Judah come and state that at the time of the alleged crime Reuven and Shimon were with them and not at the scene of the crime, Reuven and Shimon are executed. If afterwards Zevulun and Issachar come and testify to the same crime and again Levi and Judah claim that they were with them at the time of the crime, then Zevulun and Issachar are to be executed as well. Levi and Judah can testify against as many witnesses as they want, and even one hundred witnesses, all saying the same thing, could be executed for perjury.
Rabbi Judah claims that in this scenario there is a conspiracy between the accused and those who contradict everyone else’s testimony, namely, Levi and Judah. While we do accept their testimony, only the first set of witnesses are executed." ], [ "Perjuring witnesses are not to be put to death until [after] the end of the trial.
Because the Sadducees say: “[Perjurers were put to death] only after the accused had [actually] been executed, as it says, “ A life for a life” (Deuteronomy 19:21).
The [Pharisaic] Sages said to them: “But has not it already been said “You shall do to him as he schemed to do to his fellow” (Deuteronomy 19:19) which implies when his brother is still alive?
If so, why does it say “A life for life”?
For it might have been that perjurers are liable to be put to death from the moment their testimony had been taken, therefore the Torah states “A life for a life” that is to say that they are not executed until [after] the termination of the trial.
Mishnah six discusses at one point in the judicial process the witnesses are proven to be perjurers in order for them to receive the penalty that they tried to impose upon the accused.
This mishnah contains a dispute between the Pharisees and Sadducees, two of the main Jewish sects that competed during the Second Temple period (until 70 C.E.). The issue at hand is when are the perjuring witnesses to be executed: after the trial or only after the accused has been himself executed. The Sadducees claim that perjuring witnesses are only executed if they have been successful in having the accused actually executed. In other words, the witnesses are executed not for intending to unjustly execute the accused but for actually doing so. Just as in a case of murder of person the guilty can be convicted and executed as a murderer only if he actually succeeds and murders the victim, so too in this case, the witnesses are only executed if they succeed and have the accused wrongfully executed. The Sadducees learn this from the verse that states “A life for a life”. The witnesses have their lives taken away only if the accused already lost his life.
The Sages, who assumedly are Pharisees, the predecessors of the Rabbis of the Mishnah, state that the perjurers are executed once the verdict has been delivered, meaning the wrongful verdict that they attempted to impose upon the accused. If their testimony is contradicted beforehand then they are not executed because they were not even successful in getting a verdict pronounced against the accused. The Sages arrive at this conclusion by finding the middle ground between two seemingly contradictory verses. Verse 19 says that “you shall do to him as he schemed to do to his fellow” which sounds like “his fellow” is still alive when the perjurers are executed. From this verse alone we might have concluded that the perjuring witnesses are executed as soon as their testimony is found to be false, even if the accused has not been convicted. However, verse 21, “a life for a life” seems to imply that the perjurers are executed only if the accused actually loses his life, as the Sadducees said. The middle ground is that the perjurers are not executed immediately after they give their testimony (and they are found to be perjuring themselves) nor must the accused have been actually executed for the perjurers to be executed. Rather they are executed if the trial was completed, the accused found guilty and then the witnesses proven to be perjurers." ], [ "Introduction\nBoth mishnah seven and mishnah eight which we will learn tomorrow contain midrashim, exegeses, of the verse in Deuteronomy 17:6 which states that a person may be executed by the testimony of “two or three witnesses”. This statement is not a precise legal statement. If two witnesses are sufficient than the Torah should have stated two. If three witnesses are necessary the Torah should not have stated two. Since all of the Sages held that two witnesses were sufficient, they must answer why the Torah also stated three.", "This mishnah contains three opinions with regards to a perceived problem in the Biblical verse mentioned in the beginning of the mishnah.", "“A person shall be put to death only on the testimony of two witnesses or three witnesses” (Deuteronomy 17:6).
If the testimony is sufficiently established by two witnesses, why does Scripture [further] specify three? This is to compare two to three: just as three are competent to incriminate two as perjurers, so are two competent to incriminate three as perjurers. How do we know [that two or three can even incriminate] a hundred? The Torah states “witnesses”. The first solution is that the Torah teaches that a set of three witnesses can be made into perjurers even by a set of two witnesses. If the Torah had only taught “two witnesses” we might have thought that two was sufficient to incriminate two other witnesses but not three, since they are more numerous. Therefore, the Torah teaches that no matter how large the group of witnesses, even one hundred, they do not have more power than a contradictory set of two. If, therefore, three witnesses were to testify to a capital crime and the person was found guilty and condemned to die and then two witnesses claimed that the three prior witnesses were not present at the time of the alleged crime and rather were with them, the first three are executed as perjurers.", "Rabbi Shimon says: “Just as two witnesses are not put to death until both have been incriminated as perjurers, so three are not put to death until all three have been incriminated as perjurers. How do we know [that two or three can even incriminate] a hundred? The Torah states “witnesses”. Rabbi Shimon’s opinion is that just as when a pair of witnesses testify neither can be executed until both are proven to be perjurers, so too when three witnesses testify, none may be executed until all are proven to be perjurers. Without the word “three” in the Torah we might have thought that if three or more testify and two are found to be perjurers they may be executed, even if the third was not a perjurer. After all, the two would have been sufficient to have the accused executed. Therefore the Torah teaches “three” and “witnesses” to teach that none are executed as perjurers until all are proven to be so.", "Rabbi Akiba says: “The third witness was only mentioned in order to be stringent upon him and make his judgement the same as the other two. And if Scripture thus penalizes one who consorts with those who commit a transgression, as [if he is actually] one of those who commits the transgression, how much more so shall he who consorts with those who perform commandments receive a reward as [if he is actually] one of those who performs the commandments!” According to Rabbi Akiva, if three witnesses testify and two are incriminated as perjurers, the third witness is executed even if he was not a perjurer. He is punished not for his false testimony but for joining in with other perjurers/evildoers. Although this is a harsh sentence, Rabbi Akiva finds in it a ray of hope. If those who merely join with evildoers are punished so harshly all the more so will those who join with those who perform commandments be greatly rewarded.", "Questions for Further Thought:
• What would be the practical result of the various interpretations on the procedures of the court? What type of psychological effect would they have on the witnesses?" ], [ "Introduction\nMishnah Eight continues to expound upon the verse in Deuteronomy 17:6 which states that a person may be executed by the testimony of “two or three witnesses”.", "Just as in the case of two witnesses, if one of them was found to be a relative or [otherwise] disqualified, their whole evidence is rendered void, so it is with three, if one of them was found to be a relative or [otherwise] disqualified, the whole evidence is void. How do we know that this is the case even with a hundred? The Torah states “witnesses”. This section is a continuation of the previous mishnah’s discussion of the verse in Deuteronomy which stated “two or three witnesses”. Another reason why the Torah states “two or three” is to teach that if one witness is invalidated (for reasons why witnesses may be invalidated see Sanhedrin 3:4), the entire grouping of witnesses is invalid. This is obvious when there are two witnesses, for if one is invalidated, obviously the other one’s singular testimony will be invalidated due to its insufficiency. However, even if there are three or more witnesses, and only one’s testimony is invalidated, and their remain two or more valid witnesses, nevertheless all of their testimony is invalidated.", "Rabbi Yose said: “When is this true? With regards to capital cases; but in monetary suits, the evidence may be established by the rest. Rabbis says: “It is one and the same rule, be it in monetary suits or capital cases.” Rabbi Yose limits this ruling to capital crimes. In civil/monetary suits if one witness’s testimony is invalidated the other witnesses’ testimony can still stand. Rabbi Akiva disagrees and claims that there is no difference between monetary and capital cases.", "This is the rule when both [disqualified] witnesses warned the trasngressor, but when they did not warn him, what could two brothers do that saw someone killing a person? The mishnah now again limits the ruling in section one. In order to convict someone of a capital crime he must be warned before he commits the crime. If a person warns him before he commits the crime and then he commits it anyway, the person who warned him may testify against him. If a relative warned the person before he committed the crime, he will become one of the witnesses, thereby invalidating all of the testimony due to his being a relative or otherwise invalid. If, however, the witness did not warn the potential offender, he does not necessarily become a witness and he will therefore not invalidate the others’ testimony. The mishnah points out that if merely by witnessing a crime relatives can invalidate everyone’s testimony, neither of two brothers who saw a murder would be able to testify against the murderer. If two brothers and a third person saw a murder and the law was that relatives may not join together to testify, and just by seeing the crime they become witnesses, the murderer would not be able to be convicted. Rather, the mishnah teaches that the third person can join his testimony with one of the brothers and thereby convict the accused." ], [ "Introduction\nMishnah nine continues to discuss the laws of witnessing capital crimes. It deals with the question when are witnesses consider two groups and when are they considered one group. Furthermore this mishnah deals with the requirement of the witnesses to warn the transgressor before he commits his crime.", "If two persons see him [the transgressor] from one window and two other persons see him from another window and one standing in the middle warns him, then, if some on one side and some on the other side can see one another, they constitute together one body of evidence, but if they cannot [see one another], they are two bodies of evidence. Consequently, if one of these is found to be a perjurer, both [the transgressor] and those two witnesses are put to death, while other group of witnesses is exempt. If a murder is witnessed by two sets of witnesses from two different angles we need to know if they are legally considered one set of witnesses or two sets. If they constitute one set of witnesses then if any one of the four is caught as a perjurer, or is otherwise invalidated, all of their testimony is invalid, and none of the witnesses can be executed, unless they were all caught as perjurers . If they are two sets of witnesses, then if one set is caught as a perjurers or otherwise disqualified, there remains a set of valid witnesses, and the transgessor is executed upon their testimony. According to the mishnah the two sets of witnesses’ testimony is joined only under two conditions: 1) the two sets can see each other; 2) the person warning the transgessor stands between the two sets of witnesses such that all may see him. If the witnesses cannot see each other or the person warning was not seen by all of the witnesses, then they are two different sets.", "Rabbi Yose says: “He is never put to death unless two witnesses had warned him, as it says, “by the mouth of two witnesses..” (Deut. 17:6). Rabbi Yose states that two must warn the transgessor before he commits the crime in order to convict him afterwards. He learns this from the verse in Deut. 17:6, which literally translates, “by the mouth of two witnesses” (which is just idiomatic for “by two witnesses”). Rabbi Yose understands that not only the verbal testimony but the verbal warning as well must come from two witnesses.", "Another interpretation: “By the mouth of two witnesses”: that the Sanhedrin shall not hear the evidence from the mouth of an interpreter. Another interpretation of the phrase “by the mouth of” is that testimony may not be given through a translator. A translator would cause the testimony to come from someone else’s mouth. If the witness does not speak a language that the sanhedrin understands, his testimony does not count." ], [ "Introduction\nMishnah ten discusses a criminal who flees after being convicted. The final part of mishnah ten contains the famous discussion regarding how often the sanhedrins actually carried out executions.", "If one fled after having been convicted at a court and again comes up before the same court, the [first] judgment is not set aside. Wherever two witnesses stand up and declare, “We testify that so and so was tried and convicted at a certain court and that so and so were the witnesses” the accused is executed. If the convicted felon fled and was returned before the same court, he is executed without another trial. If he was caught and brought before a different court two witnesses must state that this person was already convicted by another court. They must also name the court and name those who testified against the felon. If they do so he may be executed by the new court without a full trial.", "[Trials before] a sanhedrin are customary both in the land [of Israel] and outside it. The sanhedrin of twenty three is a communal structure that is functional both in the Land of Israel and outside of it.", "A sanhedrin that executes once in seven years, is called murderous. Rabbi Eliezer b. Azariah Says: once in seventy years. Rabbi Tarfon and Rabbi Akiva say: “Had we been members of a sanhedrin, no person would ever be put to death. Rabban Shimon ben Gamaliel remarked: “They would also multiply murderers in Israel.” This famous piece of mishnah testifies to some of the Rabbis’ deep hesitations with regards to the death penalty. As we have seen throughout tractate Sanhedrin and tractate Makkoth, convicting a person of a capital crime is no easy matter. The person must be warned beforehand and then the crime has to be explicitly witnessed by two valid witnesses. Therefore, the first opinion in our mishnah, concludes that a court that executes once every seven years is a murderous court. Since the laws of testimony are so strict, any court that executes more often than this is assumed to be illegally suspending the laws and is therefore, in a sense, engaging in murder itself. Rabbi Elezar ben Azariah says that once in seventy years already makes a court murderous. Rabbi Tarfon and Rabbi Akiva brag that had they been on a sanhedrin no one would have ever been executed. At the end of the mishnah Rabban Shimon ben Gamaliel, the political leader of the Jews at the time, notes a sound of caution. The Rabbinic tendency to be overly lenient on executing murderers can take its toll on society. In his opinion the attitudes of the other Rabbis cause the numbers of murderers to rise.", "Questions for Further Thought:
• Section two: Why might one have thought that the sanhedrin was not functional outside of the Land of Israel?
• Section three: Why do the Rabbis feel the need to state how infrequently a court should execute? What is Rabban Shimon ben Gamaliel’s argument with the others?" ] ], [ [ "Introduction\nThe second chapter of Makkoth discusses the laws regarding accidental killing. These laws are discussed extensively in Numbers 35:9-28, 32 and Deuteronomy 19:1-13. According to these passages, if a person killed another person by accident the victim’s relative could exact blood vengeance upon the accidental killer. If the accidental killer wanted to avoid being killed by the blood avenger he would run to one of the cities of refuge that were to be established when the Land of Israel was conquered. The accidental killer would have to stay in this city until the death of the High Priest at which point he could return to his former city and the blood avenger would be forbidden from killing him.\nThe mishnah which we will learn today defines what killing is considered accidental such that it allows a killer to escape to a city of refuge.", "The following go into banishment: one who kills in error. If [for instance] while he was pushing a roller [on the roof] and it fell down and killed somebody; If while he was lowering a cask it fell down and killed somebody; If while coming down a ladder he fell on somebody and killed him, he goes into banishment. But, if while he was pulling up the roller it fell back and killed somebody; If while he was raising a cask and the rope snapped and the cask fell and killed somebody; If while going up a ladder he fell down and killed somebody, he does not go into banishment. (1) This is the general principle: [whenever the death was caused] in the course of a downward movement, he goes into banishment, but [if it was caused] not in the course of a downward movement, he does not go into banishment. This entire section illustrates the principle that an accidental death which will force the killer to go into exile is a case where a person is lowering a heavy object or he himself is going down a ladder and the object or the person slips and accidentally kills someone. If however, he was bringing something up or going up a ladder and the object or he fell downward he is not obligated to go into exile. The difference between the two is that in the first case the likelihood of injuring someone below is relatively high and he therefore should have been more cautious. In the second case, when he is bringing something up, the likelihood that it will fall below and cause injury is unlikely. Therefore he does not need to go into exile. This section illustrates an important difference in the Rabbinic understanding of exile from the Biblical understanding of exile. In the Bible the accidental killer’s fleeing to the refuge city is to his own advantage. If he does not the blood avenger will kill him. Exile is not a punishment for a crime or for negligence but legal protection offered to an accidental killer. In the Rabbinic legal system exile is a punishment for negligence. This is probably partly due to the fact that blood vengeance was not accepted in their society. The Rabbis understand exile as a punishment for negligence. Therefore if the killing was totally unanticipated, he need not go to the city of exile.", "If the iron slipped from its heft and killed [somebody]: Rabbi says, “He does not go into banishment.” And the Sages say: “He goes into banishment.” If it flew from the log being split: Rabbi says, “He goes into banishment.” And the Sages say: “He does not go into banishment.” Deuteronomy 19:5 brings up an example of accidental killing whereby a man goes into the forest with an ax and the “ax flies off the handle and strikes another so that he dies”. This phrase “ax flies off the handle” is read in two different ways. The Sages read the verse as we have translated it, that the instrument which kills is the metal part of the ax which flies off its handle. According to Rabbi (Judah the Prince) in this situation the person is not liable for exile. He reads the verse as if it states that the ax causes a chip to fly off from the tree and the chip kills someone else. [Rabbi would translate the word handle as “tree”, and they are both indeed the same word.] According to the Sages, in this situation he is not liable for exile." ], [ "Introduction\nMishnah two continues to define what killing is considered accidental such that it allows a killer to escape to a city of refuge.", "If a man threw a stone into the public domain and killed a person, he goes into banishment. Rabbi Eliezer ben Jacob says: “If after the stone had left his hand another person put out his head and caught it, the thrower is exempt [from banishment].” One who throws a stone into the public domain has thereby committed a negligent act and is exiled if the stone kills. According to Rabbi Eliezer ben Jacob the stone must be thrown at the place where a person is standing, before the stone is thrown. If after the stone is thrown a person moves into its way he is not liable to be exiled. This is probably because he is less negligent, having thrown a stone to a place where no one was standing. However, according to the first opinion in the mishnah, merely throwing a stone to a place that might kill is enough to cause the thrower to be exiled.", "If a man threw a stone into his [own] court and killed a person, then, if the victim had a right of entry there, the thrower goes into banishment, and if not, he does not go into banishment, as it says, “As when a man goes into the forest with his neighbor” (Deut. 19:5): the forest is a domain accessible to the victim and to the slayer and it therefore excludes the court of the householder where the victim has no right of entry. If a person throws a stone into his own courtyard and it kills a trespasser the thrower is not liable to be exiled. This is learned from the example of accidental killing mentioned in Deuteronomy 19:5, that of an accidental killing taking place in the forest. Just as the forest is a place where anyone may enter, so too any accidental killing can only occur in a place where the victim had permission to enter. An accidental killing which takes place on private property when the victim had not been given permission to enter will not make the killer liable for exile.", "Abba Shaul says: “Hewing of wood is an optional act and it therefore excludes a father beating his son, or a master disciplining his pupil, or an agent of the court [administering lashes].” Abba Shaul learns another law from the example given in the Torah, that of a person chopping wood. Chopping wood is a voluntary activity and therefore any accidental killing which will force the killer to go into exile must also entail voluntary activities. If however the striking was mandatory such as a father disciplining his son, a master his student or a court agent administering lashes, the accidental killer is exempt. When reading this mishnah, as harsh as it sounds we must remember that corporal discipline was an accepted part of all ancient societies." ], [ "Introduction\nMishnah three discusses categories of accidental killers who do or do not go into exile.", "The father goes into banishment for [the death of] his son, and the son goes into banishment for [that of] his father. Although we learned in the previous mishnah that a father does not go into banishment if he accidentally kills his son while disciplining him, he nevertheless does go into banishment if he accidentally kills him under other circumstances. So too a son goes into banishment if he accidentally kills his father.", "All go into banishment for [the death of] an Israelite, and Israelites go into banishment on their account, except for a resident alien. And a resident alien does not go into banishment except for [the death of another] resident alien. Anyone who accidentally kills an Israelite, meaning a Jew, is exiled, including a slave or a Samaritan (a sect that broke away from the Jews). So too, any Jew who accidentally kills someone goes into exile, even if he accidentally kills a slave or a Samaritan. The one exception is a resident alien, a person who lives in the Land of Israel and has accepted upon himself to perform the seven Noahide commandments (the prohibitions of idolatry, blasphemy, bloodshed, sexual sins, theft, and eating from a living animal, as well as the injunction to establish a legal system) but has not fully converted to Judaism. If a Jew accidentally kills a resident alien he is not banished. However, if a resident alien accidentally kills a Jew he is to be executed. These laws are learned in the Talmud exegetically from Deuteronomy 19:5.", "A blind person does not go into banishment, the words of Rabbi Judah. Rabbi Meir says: “He goes into banishment.” Numbers 35:23 states that if a person drops a stone on someone else “without seeing” he is to be banished. Based on this verse there is a dispute amongst the Sages with regards to the banishing of a blind person. According to Rabbi Judah since a blind person can never see he is exempted from the laws of banishment. According to Rabbi Meir, as long as the killing was accidental the killer is banished.", "An enemy does not go into banishment. Rabbi Yose bar Judah says: “An enemy is executed, for it is as if he has been warned.” Rabbi Shimon says: “There is an enemy that goes into banishment and there is an enemy that does not go into banishment: wherever it can be said that he had killed [his victim] wittingly, he goes not into banishment, and where he had slain unwittingly, he goes into banishment. A person who accidentally kills his enemy is understandably going to be looked at with some suspicion. Deuteronomy 19:11 states that “If, however, a person who is the enemy of another lies in wait for him and sets upon him and strikes him with a fatal blow” this person is to be executed. The question our mishnah asks is what to do with the an enemy who claims that he killed accidentally. According to the first opinion, since he is an enemy, he is not banished. Neither is he to be executed by a court. Rather, the blood avenger is allowed to exact revenge upon this person and not be considered guilty of murder himself. According to Rabbi Yose bar Judah he is to be executed, for we can assume that he murdered with intent, and it is as if he has already been warned not to murder such and such a person. Rabbi Shimon states that not all situations in which a person kills his enemy are the same. If it can be stated that the enemy killed with intent than he is not to be banished. In other words, the cities of refuge will not offer him protection and the blood avenger will be permitted to exact revenge. If, however, it cannot be stated that he killed with intent he is banished like all other accidental killers.", "Questions for Further Thought:
• Section one: Why would you think that a father doesn’t go into banishment for his son? Why would you think that a son doesn’t go into banishment for accidentally killing his father?
• Section four: There are three different opinions in this section. Try to figure out how each opinion might be based on the verse in Deuteronomy." ], [ "To where are they banished? To the cities of refuge, to the three cities situated on the far side of the Jordan and the three cities situated in Canaan, as it says, “Three cities shall be designated beyond the Jordan, and the other three shall be designated in the land of Canaan” (Numbers 35:14).
Not until three cities were selected in the land of Israel did the [first] three cities beyond the jordan receive fugitives, as it says, “Six cities of refuge in all” (Numbers 35:13), until all six could simultaneously receive fugitives.
Mishnah four begins to discuss the refuge cities, those cities to where the accidental killer would flee.

This mishnah begins to discuss the cities of refuge to where the accidental killer would flee in order to protect himself from the blood avenger. There were three cities on one side of the Jordan river (where the country of Jordan currently exists) and three in the land of Israel. Although the land on the other side of the Jordan river was conquered first and assumedly its refuge cities were assigned before the remainder of the land was conquered, nevertheless these refuge cities were not functional until all six had been conquered and assigned." ], [ "Introduction\nMishnah five discusses the making of roads to lead to the cities of refuge and the accompaniment of the manslayer as he makes his way.", "And direct roads were made leading from one to the other, as it says, “You shall prepare the way and divide the borders of your land into three parts” (Deut. 19:3). Roads were to be made leading to the cities of refuge so that the manslayer would not have a difficult time finding his way. Remember that if the blood avenger found him before he arrived at the city of refuge he could kill him without incurring penalty.", "And they delegate to him to disciples of the Sages [as escorts] in case anyone attempted to slay him on the way, and that they might speak to him. Rabbi Meir says: “He may [even] plead his cause himself, as it says, “And this is the word of the manslayer” (Deut. 19:4). In order to prevent the blood avenger from finding the manslayer on his way to the city of refuge the court would assign two disciples of the Sages to travel with him and plead with the blood avenger should he try and attack while on the way. Rabbi Meir’s statement can be read in two ways. He may be suggesting that not only should the disciples of the Sages plead his case, but he should plead himself. According to this interpretation, Rabbi Meir does not disagree with the previous opinion, but rather adds upon it. Alternatively, Rabbi Meir may disagree with the previous opinion. Rabbi Meir may believe that only the manslayer may plead his case, but not the disciples of the Sages. In either case the act of pleading is learned from the verse in Deuteronomy which states “the word of the manslayer”, understood by Rabbi Meir to hint that the manslayer should plead his own case." ], [ "Introduction\nThe first half of mishnah six states that all killers, accidental or intentional, would initially flee to the city of refuge, before standing trial. The second half discusses issues concerning the death of the high priest, which according to Numbers 35:25, 28 is what allows the manslayer to leave the city of refuge and return home without fear of the blood avenger.", "Rabbi Yose bar Judah says: “Initially a slayer is sent in advance to [one of] the cities of refuge, whether he had slain in error or with intent and then the court sends and brings him out. Whoever was found guilty of a capital crime the court had executed, and whoever was found not guilty of a capital crime they acquitted. Whoever was found liable to banishment they restored to his place [of refuge] as it says, “And the congregation shall restore him to the city of refuge to which he fled” (Numbers 35:25). Before a trial it is impossible to know whether the killing was done accidentally or with intent. Therefore, all killers flee to the city of refuge immediately. Afterwards the court sends for them and puts them on trial. If they are found guilty of murder they are executed. If they are found not to have killed with intent and not to have been negligent, then they are totally exempt and incur no penalty. If they are found to have killed accidentally, without intent but with some degree of negligence, then they are sent back to the city of refuge.", "All the same are [the deaths of] the high priest who had been anointed with the anointing oil; or had worn many garments, or had retired from his office all make possible the return of the manslayer. Rabbi Judah says also the [death of the] priest who had been anointed for war makes possible the return of the manslayer. There are several different types of high priests described in our mishnah. The first are those who have been anointed with oil, a practice that only existed during the First Temple period. The second are those who wore the high priest’s special clothing, which included more pieces of clothing than a normal priest. This would have included the high priest during the Second Temple period. Thirdly, the mishnah mentions a high priest who retires from office. The manslayer may leave the city of refuge at the death of any one of these types of high priests (see Numbers 35:25, 28). According to Rabbi Judah, even the priest who has been anointed to charge the people into war, referred to in Deuteronomy 20:2, is considered to be like a high priest, and therefore his death allows the manslayer to return home.", "Therefore, mothers of high priests would provide food and clothing for them [who had been exiled] that they might not pray for their son’s death. Naturally, it is in the best interest of the manslayer who has been banished to the refuge city for the high priest to die as quickly as possible. They may even pray for his speedy death. In order to encourage them not to pray for their sons’ deaths, the mothers of the high priests would feed and clothe the manslayers who were stuck in the cities of refuge.", "If the high priest died at the conclusion of the trial, the slayer does not go into banishment. If he died before the trial was concluded and another high priest was appointed in his stead and the trial was then concluded, the slayer returns [home from refuge only] after the latter’s death. If the high priest were to die after the conclusion of the trial the manslayer does not need to go into banishment, for the high priest has already died. Although he never reached the city of refuge, once his trial has been concluded it is as if he is already there. If, however, the high priest dies before the conclusion of the trial and a new one is appointed, the manslayer must wait until the newly appointed high priest dies before he can leave the city of refuge.", "Questions for Further Thought:
• Section one: Why does Rabbi Yose bar Judah suggest that all killers initially flee to the refuge city, even before a trial?
• Section three: What does this section teach us about the nature of prayer in the eyes of the Rabbis?" ], [ "Introduction\nMishnah seven continues to deal with various law concerning the cities of refuge.", "If the trial was concluded when there was no high priest [in office], or if one kills a high priest, or a high priest that kills, [in these cases the manslayer] can never come away from that place [of refuge]. This section is a conclusion of the previous mishnah. If the trial of the manslayer is concluded at a time when there was no high priest he can never leave the city of refuge. Even when a new high priest is appointed, his death will not free the manslayer since he was not the high priest when the person was convicted of manslaughter. Similarly, one who kills a high priest or a high priest that kills can never leave the city of refuge, since there would be no existing high priest at the conclusion of the trial.", "He [the manslayer] may not go out to bear witness, neither for cases having to do with a religious observance, nor to bear witness in a monetary suit, nor to bear witness in a capital case. Even should [all] Israel need him, and even a general like Yoav the son of Zeruiah, he may never go out, as it is said, “to there he fled”: ‘there’ must be his abode, ‘there’ his death, ‘there’ his burial. The manslayer may not leave the city of refuge under any circumstance, even to testify to a religious matter, such as the new month. Neither may he leave to testify in monetary cases nor in capital cases. Even if he was a general in the army and Israel needed him in war, he may not leave. The mishnah emphatically states that “there”, i.e. in the city of refuge will be his permanent dwelling, his death and his burial.", "Just as the city affords asylum so does its Sabbath boundary afford asylum. Just as the city proper offers the manslayer refuge from the blood avenger, so too does any area within the Sabbath limit (a boundary within which a person may freely travel on the Sabbath). This is defined as a 2000 amot perimeter of the city.", "If a manslayer went beyond the boundary [of the city] and the blood avenger found him: Rabbi Yose the Galilean says: “For the avenger it is a matter of obligation [to kill him]; for everyone else, a matter of option.” Rabbi Akiba says: “It is a matter of option for the avenger, and anyone else [who kills him] is not liable for doing so.” If he does leave the city of refuge before the high priest dies, he is liable to be killed. According to Rabbi Yose the Galilean, the blood avenger is actually commanded to kill him and any other person is permitted to kill him. According to Rabbi Akiva the blood avenger may kill him, and other people may not. However, if other people do kill him they are not liable as murderers.", "If a tree was standing within the boundary and its boughs extended beyond [the boundary] or if it was standing outside of the boundary and its boughs extended within, it wholly follows [the position of] the boughs. A tree standing in the city and leaning out of it, or standing outside of the city and leaning in, is judged to be in our out of the city boundaries based on its boughs and not on the position of its trunk. This will be of import if the manslayer reaches the tree and the blood avenger tries to kill him. If the tree is in the boundaries the blood avenger may not kill him but if it is outside of the boundaries, he may.", "If he slew [someone] in that city [of refuge] he is banished from one neighborhood to another neighborhood. And a Levite is banished from one city to another. A person who accidentally kills someone in a city of refuge presents a legal problem since he is already in the place that protects people from the blood avenger. The mishnah remedies this problem by stating that he is to be exiled from neighborhood to neighborhood. A Levite who lives in a city of refuge (see Numbers 35:6) may not stay in the city if he accidentally kills someone. Rather he must go to a different city of refuge." ], [ "Introduction\nMishnah eight deals with the arrival of the manslayer in the city of refuge, his acceptance there, and his eventual leaving of the city.", "A manslayer who went to his city of his refuge and the men of that city wished to do him honor, should [refuse] by saying to them, “I am a manslayer!”. If they say to him, “Nevertheless” he should accept from them [the proffered honor], as it is said: “and this is the word of the manslayer.” Upon reaching the city of refuge the manslayer should initially attempt to refuse any honors that the people of the city may offer him. However, if they insist he may accept. This is learned from the verse, “and this is the word of the manslayer.” The mishnah understands the verse as hinting that the manslayer need only speak one word of refusal of honor. He need not refuse a second time.", "They used to pay rent to the Levites, according to the words of Rabbi Judah. Rabbi Meir says: “They did not pay them rent.” According to Numbers 35:6 the cities of refuge are actually owned by the tribe of Levi which was not apportioned a geographical inheritance in Israel as were the other tribes. Therefore Rabbi Judah states that those who fled to the city of refuge must pay rent to the Levites. Rabbi Meir hold that they need not.", "And [on his return home] he returns to the office he formerly held, according to the words of Rabbi Meir. Rabbi Judah says: “He does not return to the office he formerly held.” When he returns to his former home after the death of the high priest, Rabbi Meir holds that he returns to his former positions of power and honor. Rabbi Judah holds that he does not.", "Questions for Further Thought:
• What might be the connection between the two disputes at the end of this mishnah? Are Rabbis Meir and Judah holding consistent opinions? If so, what conception of manslaying underlies each of their words?" ] ], [ [ "Introduction\nThe final chapter of Makkoth discussed those who are liable to be flogged. There are three reasons that a person is flogged: 1) one who transgresses a Biblical law for which the penalty is kareth (heavenly excommunication). According to the Rabbis one who was flogged is not penalized by kareth, considered to be a more serious punishment. 2) One who transgresses a Biblical law which is punishable by death by the hands of Heaven. 3) One who transgresses a Biblical negative commandment, provided the transgression was active. Our chapter lists many categories of those who are to flogged but the list is not exhaustive.", "And these are liable to be flogged:
One who had relations with his sister, or his father's sister, or his mother's sister, or his wife's sister, or his brother's wife, or his father's brother's wife, or a menstruant; This mishnah lists sexual offenses which are not punishable by death. In each of these cases both offenders, the man and the woman will be flogged. These forbidden relations are discussed in Leviticus chapters eighteen and twenty.", "A high priest who marries a widow, an ordinary priest who marries a divorcee or a halutzah; This section lists marriages forbidden to high priests and ordinary priests. They are listed in Leviticus 21:7, 13-15.", "An Israelite who marries a mamzereth or natinah, or an Israelite woman who is married to a mamzer or a natin. This section lists marriages forbidden to ordinary Israelites. A mamzer or mamzereth (a female mamzer), mentioned in Deuteronomy 23:3, is one born of a forbidden union which carries with it a punishment of kareth or death. A natin or natina (a female natin) is a descendent of the Gibeonites, those who tricked Joshua into accepting them as converts, upon which he declared them to be woodchoppers and water-drawers and forbade them to marry ordinary Israelites (Joshua 9:27).", "In the case of a [woman who is both] a divorcee and a widow [a high priest] is liable on two counts. But in the case of a [woman who is both] a divorcee and a halutzah, an ordinary priest is liable only on one count. A widow who is also a divorcee, i.e. her first husband died and her second husband divorced her, is forbidden to a high priest on two counts. If he were to marry such a woman he would be obligated to be flogged for each transgression, even though he did only one act. A divorcee and a halutzah (one who has been rejected by her levir, her dead husband’s brother) are forbidden to an ordinary priest. However, the prohibition of the halutzah to an ordinary priest is only a Rabbinic prohibition, not Biblical, as is the prohibition to a divorcee Therefore, an ordinary priest who marries a divorcee who is also a halutzah is only flogged for one transgression." ], [ "An unclean person who ate holy meat (Leviticus 7:20, 12:4);
One who entered the sanctuary while unclean (Leviticus 12:4, Numbers 5:3, 19:13);
One who ate forbidden fat or blood (Leviticus 3:16, 7:23-27);
Or leftover sacrificial meats (Leviticus 19:6-8);
Or sacrifices that had been offered up with improper intention (Leviticus 7:18);
Or [an offering] that has became unclean (Leviticus 7:19);
One who slaughters, or offers up a sacrifice, outside the Temple precincts (Leviticus 17:4);
One who ate leavened [bread] during Passover (Exodus 12:15, 19);
One who partakes of food [or drink] or does work on the Day of Atonement (Leviticus 23:27-31);
One who puts together the ingredients for the [anointing] oil, or the ingredients for the incense, or anoints with the oil for anointing (Exodus 30:22-28):
One who eats an animal that died a natural death (Deuteronomy 14:21);
Or was improperly slaughtered (Exodus 22:30);
Or any of the [creatures deemed] ‘abominable’ and ‘teeming’ (Leviticus 11:11, 40).
One who eats non-tithed produce, or first-tithe from which heave offering has not been removed, or unredeemed second-tithe, or unredeemed sanctified property.
How much untithed produce is one to eat to become liable? Rabbi Shimon says: “Any amount.” The Sages say: “An olive's size.” Rabbi Shimon said to them: “Do you not admit that if one ate the minutest ant that he would be liable? They said to him: “[Only] because it is a whole creature.” He said to them: “Even a grain of wheat is a whole entity.”
The first fourteen sections of our mishnah mostly lists different types of forbidden foods and a few other Temple related prohibitions for which one is to be flogged. Section fifteen discusses the amount of untithed produce that if one eats he is liable for a transgression.
Section fifteen: According to Rabbi Shimon one is liable for flogging if he eats any amount of untithed produce, even a single grain. The Sages disagree and state that only if one eats an olive’s size of untithed produce is he liable for flogging. Less than that and he is exempt. Rabbi Shimon attempts to prove his point by making an analogy to eating an entire ant. All agree that if one eats an entire ant (on purpose) he is liable to be flogged, even though the ant is smaller than an olive. The Sages respond that one is liable for eating an ant since it is an entire creature. Since it is a distinct, full entity it is enough to make one who consumes it liable for punishment. Rabbi Shimon responds that a single grain is also a whole entity, and therefore one who eats a single grain of untithed produce is liable to be flogged as well." ], [ "Introduction\nMishnah continues to discuss which transgressions are punishable by flogging.", "One who eats of first fruits previous to the recital over them (Deut. 26:3-10); First fruits were to be brought to Jerusalem and given as a gift to the priests. The bearer of the first fruits was supposed to recite a liturgical text contained in Deuteronomy 26:3-10, which contained a brief history of Israel (the text is now part of the Passover Haggadah). A priest who ate of the first fruits before the recitation was made was punished by flogging.", "Of most holy things outside of the Temple curtains (Exodus 27:9); Certain sacrifices were only to be eaten within the curtains of the Temple. These included sin offerings and guilt offerings. One who ate them outside of this area was punished by flogging.", "Of lesser holy things or of second tithe, outside the city wall (Deut. 12:17-18). Other sacrifices could be consumed anywhere within the walls of Jerusalem. These included thanksgiving offerings, offerings of wellbeing and the Passover offering. The second tithe was to be brought to Jerusalem and consumed there. One who ate any of these things outside of the walls was punished by flogging.", "One who breaks a bone of a ritually clean Passover offering receives forty [lashes] (Exodus 12:46); But one who leaves over a clean [Passover offering] (Exodus 12:10), or breaks a bone of an unclean [Passover offering], is not given forty [lashes]. The Torah forbids breaking a bone of the Passover sacrifice. The mishnah limits this law to a Passover sacrifice brought by a ritually clean person. Usually unclean people could not bring the Passover sacrifice and they were to wait a month and celebrate what is called Pesach Sheni, or The Second Passover (see Numbers 9:4-13). However, if most of the congregation was impure at the time of the first Passover (the 14th of Nissan) they were allowed to sacrifice the Passover offering while impure. Our mishnah teaches that one who breaks a bone of a Passover offering brought while the congregation is impure is not liable to be lashed. The Torah also states that the Passover offering must be consumed that very night. One who does not consume the Passover offering, while having violated a commandment, is nevertheless not flogged. We will learn why in the next mishnah.", "Questions for Further Thought:
• Why do you think a person who breaks the bone of an impure Passover offering is not to liable for flogging?" ], [ "If one takes the mother bird with the young (Deuteronomy 22:6-7): Rabbi Judah says he is flogged and need not [then] send the mother free; But the Sages say: “He lets the mother go and is not flogged.”
This is the general principle; any negative commandment which involves a positive deed, one is not liable (for transgressing over.
Mishnah four discusses the prohibition of taking a mother bird with her young.
The last section of the mishnah states the principle that will explain the Sages’ position in the previous section as well as the last section of the previous mishnah. According to the mishnah any negative commandment which can be immediately remedied by a positive deed is not punishable by lashing. Our two mishnayoth illustrate commandments of this nature. Deuteronomy 22:6-7 states: “Do not take the mother (bird) with the young, Let the mother go”. The Sages understand the first half of this statement to be a negative commandment and the second half a positive deed which would remedy the violation of the negative commandment. In other words one who violates the negative commandment by taking the mother and the young can remedy it by doing a positive deed, namely by releasing the mother. Therefore, the Sages say that since he released the mother, he is not liable to be flogged.
Rabbi Judah reads the verse differently. He understands the second half to mean “Let the mother go” before you take her and the young. Once the person has taken the mother bird while the young are together with her in the nest he is immediately punishable by flogging, since he cannot remedy the situation. Since the commandment has already been violated and cannot be remedied, he is not obligated to release the mother bird.
This same general rule is also applicable with regards to the end of the previous mishnah which discussed leaving the Passover offering until morning. Exodus 12:10 states: “You shall not leave any of it until morning; if any of it is left until morning you shall burn it.” Again the first half of the verse is a negative commandment and the second half contains a remedy to the violation of that commandment. Therefore one who violates the prohibition of leaving the sacrifice until morning is not flogged." ], [ "Introduction\nMishnah five discusses the various prohibitions of shaving one’s head either as a sign of mourning (Leviticus 21:5, Deuteronomy 14:1) or in general (Leviticus 19:26). These prohibitions are punishable by flogging.", "If a man makes a baldness on his head, or rounds the corner of his head, or mars the corner of his beard, or makes one cutting [in his flesh] for the dead, he is liable [to a flogging]. If he makes one cutting for five dead, or five cuttings for one, he is liable for each one. On [rounding] the head [he is liable] for two corners, one for one side and one for the other; On [marring] the beard [he is liable] for two [corners] on one side, for two on the other side, and for one lower down. Rabbi Eliezer says: “If they were all taken off at the same time he is liable only on one count.” Making a baldness on one’s head as a sign of mourning is prohibited in Deuteronomy 14:1 and Leviticus 21:5. Rounding the corner of one’s head and marring the corner of one’s beard are prohibited in Leviticus 19:27. Cutting one’s flesh for the dead is prohibited in Leviticus 19:28. All of these transgressions are punishable by flogging. Our mishnah now proceeds to list how many violations are contained in each of these commandments.", "If a man makes a baldness on his head, or rounds the corner of his head, or mars the corner of his beard, or makes one cutting [in his flesh] for the dead, he is liable [to a flogging]. If he makes one cutting for five dead, or five cuttings for one, he is liable for each one. On [rounding] the head [he is liable] for two corners, one for one side and one for the other; On [marring] the beard [he is liable] for two [corners] on one side, for two on the other side, and for one lower down. Rabbi Eliezer says: “If they were all taken off at the same time he is liable only on one count.” Section one, clause a: With regards to cutting one’s flesh, each cut for each dead counts as a violation. If he cuts once for five dead he receives five sets of lashes. Likewise, if he cuts five times for one dead he receives five sets of lashes.", "If a man makes a baldness on his head, or rounds the corner of his head, or mars the corner of his beard, or makes one cutting [in his flesh] for the dead, he is liable [to a flogging]. If he makes one cutting for five dead, or five cuttings for one, he is liable for each one. On [rounding] the head [he is liable] for two corners, one for one side and one for the other; On [marring] the beard [he is liable] for two [corners] on one side, for two on the other side, and for one lower down. Rabbi Eliezer says: “If they were all taken off at the same time he is liable only on one count.” Section one, clause b: Rounding one’s head is considered two violations, one for each side of the head. Therefore he will receive two sets of lashes.", "If a man makes a baldness on his head, or rounds the corner of his head, or mars the corner of his beard, or makes one cutting [in his flesh] for the dead, he is liable [to a flogging]. If he makes one cutting for five dead, or five cuttings for one, he is liable for each one. On [rounding] the head [he is liable] for two corners, one for one side and one for the other; On [marring] the beard [he is liable] for two [corners] on one side, for two on the other side, and for one lower down. Rabbi Eliezer says: “If they were all taken off at the same time he is liable only on one count.” Section one, clause c: Marring the corners of one’s beard is considered five violations, two for marring each side and one for marring the chin. Therefore he will receive five sets of lashes.", "If a man makes a baldness on his head, or rounds the corner of his head, or mars the corner of his beard, or makes one cutting [in his flesh] for the dead, he is liable [to a flogging]. If he makes one cutting for five dead, or five cuttings for one, he is liable for each one. On [rounding] the head [he is liable] for two corners, one for one side and one for the other; On [marring] the beard [he is liable] for two [corners] on one side, for two on the other side, and for one lower down. Rabbi Eliezer says: “If they were all taken off at the same time he is liable only on one count.” Section one, clause d: Rabbi Eliezer disagrees with the previous opinion. In his opinion just because there are separate areas of the head to round or beard to mar does not mean that one is obligated lashes for each section. What causes a person to receive multiple sets of lashes is his having violated the prohibition on different occasions. If he mars one part of the beard today and another at a later time, for instance tomorrow, he will be obligated for two sets of lashes. However, if he violates the prohibition in one sitting he is only obligated for one set of lashes.", "And he is only liable if he takes off with a razor; Rabbi Eliezer says: “Even if he picks off the hairs with tweezers, or with pincers, he is liable. According to the first opinion in the mishnah he is only liable for having marred his beard if he does so with a razor. Rabbi Eliezer holds that marring even with pincers or tweezers is a violation of the commandment.", "Questions for Further Thought:
• Section two: What might be the basis of Rabbi Eliezer’s disagreement with the previous opinion?" ], [ "He who writes an incision on his skin [is flogged].
If he writes [on his flesh] without incising, or incises without writing, he is not liable, until he writes and incises with ink, eye-paint or anything that lasts.
Rabbi Shimon ben Judah says in the name of Rabbi Shimon: “He is not liable until he has written there the name [of a god], as it is says: “Nor shall you incise any marks on yourselves; I am the Lord” (Leviticus 19:28).
This mishnah is a continuation of the previous mishnah which discussed the prohibitions in Leviticus 19:27-28.
The last half of verse Lev. 19:28 prohibits tattooing, defined in our mishnah as incising with a knife and making a permanent mark. If he were to incise without using permanent ink, or write on himself with permanent ink without first incising he would not be liable for lashes.
The first opinion in the mishnah understood that one is liable to be flogged no matter what he writes. Rabbi Shimon ben Judah disagrees and states that one is obligated only if he writes the name of another god. This is learned from the end or verse 28, “I am the Lord”. Rabbi Shimon understands this to mean God saying, “I am the Lord” and therefore you may not write any other god’s name." ], [ "Introduction\nMishnah seven discusses a nazirite who violates the prohibition of drinking wine.", "If a nazirite has been drinking wine all day, he is liable for only one lashing. If they said to him, “Don’t drink wine”, “Don’t drink wine”, and he kept drinking, he is liable for each instance. A nazirite is forbidden to shave his hair, drink wine or become impure (Numbers 6:1-21). Our mishnah asks the question about a nazirite who drinks wine all day long. Is this considered one violation or many violations? In other words, what splits one act of violation from another, in order to make him liable on multiple counts? The mishnah states that it is his awareness of his crime, proven by others warning him to cease drinking, that separates counts of violations. If he drinks all day long yet no one warns him, it is only considered one violation. If others warn him, it is considered a violation every time he continues to drink.", "Questions for Further Thought:
• How does this mishnah compare to Rabbi Eliezer’s statement at the end of mishnah five? Does this mishnah go according to his opinion or not?" ], [ "If he has been defiling himself for the dead all day, he is liable for only one set of lashes. If they said to him, “Do not defile yourself! Do not defile yourself!” and he did defile himself [each time], he is liable on each instance.
If he was shaving all day he is liable for only one set of lashes. If they said to him, “Do not shave, Do not shave” and he did shave [each time], he is liable on each instance.
If he was wearing a garment of mixed linen and wool all day, he is liable for only one set of lashes. If they said to him, “Do not put it on! Do not put it on!” and he takes it off and puts it on, he is liable on each instance.
Mishnah eight is a continuation of mishnah seven which discussed the punishment for the continuous violation of a negative commandment.
All three sections of this mishnah teach the same ruling, which we learned already in the end of mishnah seven. If a person is violating a prohibition continuously over an entire day he is only punished for one violation. In other words, even though he may have violated the prohibition several times, it is considered one continuous violation and he is only punished once. However, if he is warned by others and continues to violate the prohibition he is obligated for each violation. Since he was warned he cannot claim that he didn’t realize what he was doing.
The first two sections deal with two of the prohibitions placed by the Torah on the nazirite: ritually defile himself through contact with a dead body or shave his hair. The other prohibition for the nazirite, drinking wine, was the subject of mishnah seven.
The final section of the mishnah deals with the wearing of a garment which contains wool and linen. This is prohibited in Leviticus 19:19." ], [ "Introduction\nMishnah nine discusses a case where one can perform one act and thereby violate eight or nine negative commandments and therefore receive eight or nine sets of lashes.", "Our mishnah lists a situation where a person plows one furrow in the ground and yet has violated eight different negative commandments. We will describe all eight and their Biblical precedents. (1) It is forbidden to plow with an ox and a donkey yoked together (Deuteronomy 22:10). (2+3) If the animals were sanctified to the Temple then one is forbidden to use them for other purposes. Since there are two animals that were both sanctified, he has violated two negative commandments not to use sanctified property. (4) It is forbidden to sew ones vineyard with other types of seeds (Deuteronomy 22:9). If by plowing he overturns seeds in a vineyard, this is considered as if he is sewing them anew and he thereby violates this commandment. (5) It is forbidden to plow the land during the Sabbatical year (Leviticus 25:4). (6) It is forbidden to plow on the Festival (see for instance Leviticus 23:7). It is also forbidden to plow on the Sabbath. However, violations of the Sabbath are not punished by lashes, as are the other violations in our mishnah, but rather by death. Since there is a principle that if one violates two commandments with one act he receives the more serious punishment, if this plowing were to have taken place on the Sabbath he would be executed and not flogged. Hence our mishnah lists the Festival and not the Sabbath. (7) A priest is forbidden to defile himself by contact with the dead or with a cemetery (Leviticus 21:1). If the plowing was done in a cemetery he will be obligated for this violation as well. (8) A nazirite is also forbidden to defile himself by contact with the dead (Numbers 6:6).", "Hanania ben Hakinai says: “He may also have been wearing a garment mixed of wool and linen.” They said too him: “This is not of the same category.” He said to them: “Even the nazirite is not in the same category.” Hananiah ben Hakinai adds another possible violation to the list. If, while performing all of these activities, he wears the forbidden mixture of wool and linen, he has now violated a ninth prohibition. The Sages respond that this ninth violation has nothing to do with the plowing and therefore they did not list it in the first section of our mishnah. Hananiah ben Hakinai responds that being a nazirite (or a priest) who defiles himself is also not a violation that is a result of the plowing, since a nazirite and a priest are forbidden even to enter the cemetery. Since according to Hananiah the list already includes violations that are not a direct result of plowing, it may be expanded to other violations that are not a result of the plowing, such as wearing wool and linen. In this way Hananiah ben Hakinai has found a way that a person can be obligated for having violated nine prohibitions in one act.", "Questions for Further Thought:
• Why would the authors of the mishnah want to list all of the possible violations involved in plowing one furrow? What principle does this teach us? How does it relate to the subject of the previous mishnah?
• Section two: What might the Sages respond to Hananiah ben Hakinai, who received the last word in the mishnah?" ], [ "Introduction\nMishnah ten discusses the number of lashes a transgressor is to receive.", "How many lashes is he given? Forty save one, as it says, “By number forty” (Deuteronomy 25:2-3) which means, a number close to forty. Rabbi Judah says: “He is given forty [lashes] in full.” And where does he receive the additional lash? Between his shoulders. Through a clever midrash our mishnah learns from Deuteronomy 25:2-3 that a person can receive up to 39 lashes for a single crime. The simple reading of those verses is actually that he can receive 40 lashes. Verse 3 states explicitly, “He may be given up to forty lashes.” The Rabbis derive 39 from the fact that verse 2 ends with the word “by number” and verse 3 with the word “forty”. The midrash is that the “number” is before “forty” and therefore he is lashed 39 times. Interestingly, the Rambam thinks that the midrash in our mishnah is not the derivation of the law but rather merely a Biblical support. The real reason that he only receives a maximum of 39 lashes is that if the person counting the lashes makes a mistake of one, he will still have only received 40 lashes. In this way the court will not violate the explicit prohibition in verse 3 not to give more than 40 lashes. Rabbi Judah reads the verse literally, and therefore does prescribe forty full lashes. In mishnah thirteen we will learn that the person receives a third of the lashes on his front and two-thirds on his back. The end of our mishnah asks where does he receive the fortieth lash, according to Rabbi Judah who says that he gets 40 full lashes. The mishnah teaches that the fortieth lash is between his shoulders." ], [ "Introduction\nMishnah ten continues to discuss the number of lashes a person is to receive.", "Our mishnah assumes that when the Torah states that a person is to be lashed 40 (39) times, the meaning is that this is the maximum number of lashes any person can receive. Before a person is lashed, he is to be examined by doctors who will estimate how many lashes he can receive without his life being endangered. This estimate is the number of lashes that he will actually receive.", "When they estimate the number of lashes he can stand it must be a number divisible by three. As we will learn in mishnah thirteen the lashes are divided into three sets, one set on his front and two on his back. Since they are divided into three sets, the number of lashes that the doctors say that the person can receive must be divisible by three.", "If they estimated him capable of receiving forty, and after receiving some they said he cannot receive forty, he is exempt [from the rest]. If they estimated him fit to receive eighteen, and after he was lashed they said he could receive forty, he is exempt [from the rest]. Estimates made by the doctors are not necessarily going to be accurate. If the doctors err the criminal always receives the benefit of the doubt. If they prescribe a high number of lashes, and as he is being lashed they see that he will not be able to withstand the prescribed number, they stop lashing him. If the doctors prescribe a low number, and after having finished lashing him they see that he can withstand more, they do not give him more lashes. In other words the criminal can never receive more than the prescribed number nor more than they think he can withstand.", "If he committed a transgression which violated two prohibitions and they made one estimate [for the lashes for both prohibitions], he is lashed and then exempt [from more]. And if [they had] not [made one estimate for both], he is lashed [for one transgression], is allowed to recover and then is lashed again. If a person committed two violations with one act then there is the possibility that the lashes he receives for both will be joined together. If the doctors give one estimate as to how many lashes he can receive, for instance they say he can receive 42, 39 for the first violation and then 3 more for the second, then he receives the 42 lashes and is not lashed any more. However, if they make separate evaluations, for instance they say he can receive 39 for the first crime and do not state a number for the second, then he receives the lashes for the first crime, is allowed to heal, and then receives the prescribed number of lashes for the second crime. In other words, since the lashes were not estimated together, they are considered separate sets of lashes, and he must be allowed to recuperate in between.", "Questions for Further Thought:
• Section three: Do you think that the ruling might be different if instead of performing one act whereby he violated two prohibitions, he instead violated two prohibitions by performing two separate acts?" ], [ "Introduction\nMishnayoth twelve describes where and how the one being lashed and the one lashing should stand. It also describes the whip itself.", "How do they lash him? His two hands are tied to a pillar on either side of it and the minister of the synagogue grabs his clothing, if they are torn, they are torn; if they are ripped open, they are ripped open, until he exposes the offender’s chest. And a stone is placed behind the offender, the minister of the synagogue stands on it, a strap of cowhide in his hands, doubled over into two, and redoubled, and two straps that rise and fall attached to it. While being lashed the victim is tied to a post with his hands spread apart. The “minister of the synagogue”, who was responsible for most of the administrative duties, would open the offender’s garments, even if this would cause them to rip. The minister would then stand upon a stone and hold a whip in his hand. The whip was made of cowhide folded twice to make it thicker, and thereby stronger. From the central piece came out two other straps. According to the Talmud these two other straps were made of donkey’s hide, which was not as thick as the cowhide." ], [ "Introduction\nMishnah thirteen continues to describe the whip and how the lashes are to be administered.", "The handle is a handbreadth long and a handbreadth wide, its tip reaching to the edge of the [offender’s] abdomen. Our mishnah continues to describe the whip used for lashing. Its handle was one handbreadth by one handbreadth. The tip of the whip, meaning the extra straps, should be long enough to reach the offender’s abdomen when the minister strikes him. The offender will be struck by the tip and not by the body of the whip, made of the cowhide.", "He administers one-third [of the lashes] in front and two-thirds behind. He lashes him not in a standing or sitting position but stooping, as it says, “And the judge shall cause him to fall [stoop] down” (Deut. 25:2). He who administers the lashes lashes with his one hand and with his whole force. As we learned previously, one-third of the lashes are on his front and two-thirds on his back. The offender, when he is being lashed, is not to stand nor to sit but to lean over. This is learned from the verse which states that the judge should cause him to fall over. The verse is understood not to mean that the judge should cause him to fall all the way down but to stoop down. The person lashing can use only one hand but he should use all of his force.", "Questions for Further Thought:
• Why do you think that two-thirds of the lashes are given on the back and one-third on the front?" ], [ "Introduction\nThe first half of mishnah fourteen lists the Biblical verses that are called out while the lashes are being administered. The second half of the mishnah discusses the offender either dying or befouling himself while being lashed.", "And the one who recites, says: “If you fail to observe faithfully all the terms of this Teaching…the Lord will inflict upon you extraordinary plagues (” (Deut. 25:58-59) And then (if time he returns to the beginning of the section. While the lashes are being administered Biblical verses are read out loud. These verses function as a warning to the person being lashed and to those witnessing. The verse in Deuteronomy warns that if Israel fails to observe the Torah (“Teaching”) God will punish Israel with plagues. In Hebrew the word plagues (makkoth) is the same word as lashes. This verse can be read to say that one who does not observe the Torah will be punished with lashes. If the reader has finished reciting the verses and there remains more lashes to be administered, the reader begins again to recite the verse from the beginning.", "[“Therefore observe faithfully all the terms of this covenant” (Deut. 28:9) and he completes by saying, “And He is merciful, forgiving iniquity” (Psalms 78:38).] This line is missing in many versions of the mishnah, hence it is in brackets. Those manuscripts which do contain this line do not contain the previous line, section 2a. According to this version, a different verse is also recited and when close to finishing the lashes, the reader calls out a verse which mentions God’s mercy.", "If the offender dies under his hand, he is exempt [from penalty]. If he gave him one more lash and the offender died, he goes into banishment. If the offender dies while being lashed the one administering the lashes is not responsible, not even as an accidental killer. This law was already learned in chapter two, mishnah two. Our mishnah adds that if the one lashing mistakenly added one lash more than was prescribed, and then the offender died, he is considered a manslayer and hence must go into banishment. The assumption is that the one lashing did not kill the offender on purpose and therefore he is not judged as an intentional killer but as an accidental one.", "If the offender befouled himself either with feces or urine, he is exempt. Rabbi Judah says: “Feces in the case of a man and [even] urine in the case of a woman. If the offender befouls himself, either by defecating or urinating, while being lashed, the lashing ends. This is a remarkable law, teaching that even at the time when the court is by definition punishing and humiliating the criminal, we are still to be concerned for his honor. By befouling himself in public the criminal is overwhelmingly shamed, and therefore the court cannot continue to punish him. Rabbi Judah states that there is a difference between men and women. Since women are more easily shamed, if they either defecate or urinate while being flogged they are immediately exempt from further lashes. Men, on the other hand, are exempt only if they defecate, which is for obvious reasons considered to be a greater embarrassment.", "Questions for Further Thought:
• What is the context of the verse in Deuteronomy, quoted in section one? How might this context effect how the verse is understood when recited during the lashing?
• Why do some versions have the reader call out the verse from Psalms? What message does this verse convey?" ], [ "Introduction\nThe final two mishnayoth of Makkoth are in essence the final two mishnayoth of a long tractate, which at one time included both Sanhedrin and Makkoth, a total of 14 chapters. As is typical of the Mishnah, long tractates are completed with words of “aggadah”, sermonic material, not usually of a legal nature. Both of these mishnayoth teach how great will be the reward of those who fulfill the commandments and deal with some weighty theological issues.", "All who have incurred [the penalty of] kareth, on being flogged are exempt from their punishment of kareth, for it says, “[He may be given up to forty lashes, but not more] ... lest your brother shall be dishonored before your eyes” (Deut. 25;3) once he has been lashed he is [considered] “your brother”, the words of Rabbi Hananiah ben Gamaliel. The punishment of kareth, being cut off from one’s people, while not enforced by a court of law, was considered to be a very serious punishment, one with dire consequences. The Rabbis taught that by receiving lashes one is expiated from the punishment of kareth. This is learned from the verse in Deuteronomy which calls the person being lashed “your brother”. After he has been lashed his punishment of kareth is erased and he returns to his full status as a member of Israel.", "Rabbi Hananiah ben Gamaliel said: “Just as one who transgresses one transgression forfeits his life, how much more does one who performs one commandment have his life granted him.” All throughout our tractate and tractate Sanhedrin we have been learning about punishments, including such serious punishments as lashings, kareth and execution. Rabbi Hananiah ben Gamaliel finds hope in the seriousness of these punishments. If a person can be so harshly punished for merely one sin, all the more great will be the reward for one who fulfills even one commandment.", "Rabbi Shimon says: “You can learn this from its own passage; as it says: “[All who do any of those abhorrent things] such persons shall be cut off from their people” (Lev. 18:29), and it says: “You shall keep my statutes and my ordinances which if a man do, he shall live by them” (Lev. 18:5), which means that one who desists from transgressing is granted reward like one who performs a precept. Rabbi Shimon claims that an even greater principle can be learned from a verse dealing with kareth itself. The end of chapter 18 in Leviticus states that one who does one of these sins will be punished by kareth, i.e. cut off from his people. The beginning of the chapter states that if one performs the commandments he will live through them. In other words, the end of the chapter discusses those who transgress and the beginning of the chapter mentions those who perform the commandments. Rabbi Shimon concludes that these are flip sides to the same coin. By merely not transgressing a person is considered as if he had actively performed a commandment and will receive his just reward.", "Rabbi Shimon bar Rabbi says: Behold [the Torah] says, “But makes sure that you do not partake of the blood; for the blood is the life, and you must not consume the life with the flesh…[that it may go well with you and with your descendents to come..” (Deut. 12:23-25”-- now, if in the case of blood which a person’s soul loathes, anyone who refrains from it receives reward, how much more so in regard to robbery and sexual sin for which a person’s soul craves and longs shall one who refrains from them acquire merit for himself and for generations and generations to come, to the end of all generations! Rabbi Shimon bar Rabbi continues to discuss how great the reward is for performing the commandments. Deuteronomy states that one who refrains from eating the blood of an animal will merit reward, as will all of his descendents. Rabbi Shimon bar Rabbi points out that if a person receives such a great reward for refraining from doing something that he wouldn’t want to do anyway, since most people are disgusted by blood, how much greater will be his reward for refraining from stealing and transgressing sexually, sins which most people crave. In other words, rewards are based on resistance to evil temptations. The greater the temptation the greater the reward for resistance." ], [ "Introduction\nThe final mishnah of the tractate is a continuation of mishnah fifteen.", "Rabbi Hananiah ben Akashia says: “The Holy Blessed One, desired to make Israel worthy, therefore gave He gave them much Torah [to study] and many commandments [to perform]: for it is says, “The Lord desires [his servant’s] vindication, that he may magnify and glorify [His] teaching.” This oft-quoted mishnah responds to an important theological question regarding the performance of commandments. Why does God care, or how is God affected, by Israel performing ritual commandments, for instance, kashruth, the dietary laws? Many have asked, what does God care how I eat my meat, whether I eat it with milk or not? The answer that Rabbi Hananiah ben Akashiah gives is that by performing God’s commandment, Israel accrues merit with God. It is a way for Israel to live up to a covenant, entered into with the infinite divine. The mitvoth, the commandments, and the learning of Torah, are not magical rites, performed in order to manipulate God into treating us better. Rather they are a symbol God’s grace to Israel, a means by which Israel can act out the will of the divine. They are means by which Israel can show God how much they love God. While there are other answers to this question, this answer is one of the most meaningful and often quoted one’s that I have seen. Congratulations! We have finished Makkoth. It is a tradition at this point to thank God for helping us to finish learning the tractate and to commit ourselves to going back and relearning it, so that we may not forget it and so that its lessons will stay with us for all of our lives. For those of you who have learned with us the entire tractate, a hearty Yasher Koach (congratulations). You have accomplished a great deal and you should be proud of yourselves. Indeed we have now finished together five tractates of Mishnah, and are more than halfway through the entire order of Nezikin. Of course, we have much more to learn. We will begin Shevuoth tomorrow!" ] ] ] }, "schema": { "heTitle": "ביאור אנגלי על משנה מכות", "enTitle": "English Explanation of Mishnah Makkot", "key": "English Explanation of Mishnah Makkot", "nodes": [ { "heTitle": "הקדמה", "enTitle": "Introduction" }, { "heTitle": "", "enTitle": "" } ] } }