Babylonian Talmud: Tractate Sanhedrin

Folio 36a

IN CIVIL SUITS, AND IN CASES OF CLEANNESS AND UNCLEANNESS etc. Rab said: I was once one of the voters in the school of Rabbi, and it was with me that the voting began.¹⁰  But did we not learn, WE COMMENCE WITH THE ELDEST? — Rabbah the son of Raba — others state, R. Hillel the son of R. Wallas — said: The voting in the school of Rabbi was different [from the usual form], because in all their voting they began with the side [benches].¹¹

Rabbah the son of Raba — others state, R. Hillel the son of R. Wallas — also said: From Moses until Rabbi we do not find sacred learning and [secular] greatness combined in the one [person]. But do we not? Was it not so in the case of Joshua? — [No, for] there was Eleazar.¹²  But what of Phinehas? — There were the Elders.¹³  But was not Saul such? — No, [with him] was Samuel. But did not Samuel die [before him]? — We are referring to his whole life-time. But did not David [combine these possessions]? — There was Ira the Jairite.¹⁴  But he died [before David]! — We are referring to his whole life-time. Was not Solomon [such a man]? — [No, for] there was Shimei son of Gera.¹⁵  But he [Solomon] slew him! — We are referring to his whole life-time. Was there not Hezekiah? — [with him] was Shebnah.¹⁶  But he was slain [during Hezekiah's life-time]! — We are referring to his entire life-time. But was this not true of Ezra? — No, for [with him] was Nehemia the son of Hachalia.

R. Adda b. Ahabah said: I similarly affirm that since the days of Rabbi until R. Ashi we do not find learning, and high office combined in the same person. But do we not: was there not Huna b. Nathan?¹⁷  — Huna b. Nathan was certainly subordinate to R. Ashi.¹⁸

WHEREAS IN CAPITAL CHARGES, WE COMMENCE WITH [THE OPINION OF] THOSE ON THE SIDE BENCHES. Whence is this derived? R. Aha b. Papa said: Scripture states, Thou shalt not speak¹⁹  'al rib [in a case]²⁰  — [i.e.,] thou shalt not speak 'al rab, against the chief [of the judges]. Rabbah b. Bar Hana deduced it in R. Johanan's name from the following verse, And David said unto his men, gird ye on every man his sword; and they girded on every man his sword, and David also girded on his sword.²¹

Rab said: In capital charges one may instruct his disciple,²²  and pronounce judgment with him.²³  An objection was raised: 'In cases of cleanness and uncleanness, a father and his son, or a master and his disciple count as two;²⁴  but in monetary cases, capital cases of flagellation, the sanctification of the month and the intercalation of the year, a father and his son, or a master and his disciple count only as one'?²⁵

1. I.e., a private offering may be brought on a Festival, though it entail labour unconnected with the preparation of food for human consumption, v. Ex. XII, 16.
2. Since in regard to work there is no difference between Sabbaths and Festivals save as regards the preparation of food.
3. Since the preceding argument is fallacious, being based on a false premise (v. Bezah, 19a). — This is still part of Raba's reasoning.
4. The premise being correct, the deduction is likewise correct, viz., that an execution cannot supersede a private offering. How then can the verse, Thou shalt take him from mine altar, be reconciled with this conclusion?
5. For, as shown above, if Abaye's reasoning be accepted, execution does not suspend even private offerings: to what then can from mine altar etc.' refer?
6. According to which view the Scriptural verse might refer to private offerings; yet even so, Abaye's deduction is unacceptable.
7. I.e., public offerings in which the individual, as an individual, has no part.
8. I.e., the altar on which the daily offering was made.
9. Thus the Bible expressly negatives the deduction a minori proposed by Abaye.
10. In connection with the Sikarikon (robber) law, a title to a piece of property held by such for twelve months. Cf. Git. 59a.
11. Owing to Rabbi's humility.
12. His colleague, equal to him in wisdom.
13. Who shared his authority with him.
14. Chief Minister to David. II Sam. XX, 26. Cf. M.K. 16b which speaks of his great learning.
15. V. II Sam. XIX, 18, where his great influence is indicated.
16. Whose college was larger than Hezekiah's. V. supra 26a.
17. Cf. Zeb. 19a. which refers to his intimate friendship with the Persian King, Yezdegerd. [According to Sherira's Epistle, he was exilarch in the time of R. Ashi.]
18. [He surrendered one by one his prerogatives to R. Ashi, v. Blank, REJ. XXX, 51.]
19. Lit., 'Answer'.
20. Ex. XXIII, 2. V. p. 94. n. 2. He takes [H] in the sense of [H]. Therefore the opinion of the lessor judges is first ascertained.
21. I Sam. XXV, 13. I.e., the question whether Nabal the Carmelite's act was to be treated as rebelliousness against the king was here discussed and a vote taken in the form of girding on the sword. David was the last to express his opinion.
22. In the laws relating to such cases, and the pros and cons for conviction.
23. The master and the disciple have each a separate vote.
24. Since such cases could at the outset be decided by a single person, the need for voting arises only in the event of a controversy.
25. Since these cases require at the very outset a fixed number of judges. Tosef. Sanh. IV.

R. Abbahu said: In ten respects do civil suits differ from capital charges,³  and none of those is practised in [the trial of] the ox that is stoned,⁴  save that twenty-three [judges are necessary] — Whence is this derived? — R. Aha b. Papa said: Scripture states, Thou shalt not wrest⁵  the judgment of thy poor in his cause;⁶  — the judgment of thy poor thou mayest not wrest,⁷  but thou mayest do so in the case of the ox that is stoned.⁸

Ten? But there are only nine! ([You say that there are only nine,] but indeed, ten are taught! — The laws that not all [persons] are eligible,⁹  and that twenty-three judges are necessary, are but one.)¹⁰  — There is yet another [difference]:¹¹  for it has been taught: 'We do not appoint as members of the Sanhedrin, an aged man, a eunuch or one who is childless.¹²  R. Judah includes also a cruel man. It is the reverse in the case of a Mesith,' for the Divine Law states, Neither shalt thou spare, neither shalt thou conceal him.¹³

ALL ARE ELIGIBLE TO TRY CIVIL SUITS. What does 'ALL' include? — It includes a bastard. But have we not already learnt this once, viz.: Whoever is competent to try capital charges is also competent to try civil suits. But some are competent to try civil suits, yet not capital charges.¹⁴  Now, when we discussed this question: What does that¹⁵  include? Did not Rab Judah answer, It includes a bastard? — One includes a proselyte, the other, a bastard. And both are necessary. For had the rule been given concerning a proselyte only, [one might have assumed that the reason is] because he is eligible to come into the Congregation;¹⁶  but a bastard,¹⁷  we would say, is not [competent]. Again, had this been stated of a bastard only, [we should think that the reason was that] he issues from a proper origin,¹⁸  but a proselyte, who does not issue from a proper origin, is not [competent]. Hence the statements are [both] necessary.

BUT NOT ALL ARE ELIGIBLE TO TRY CAPITAL CHARGES. Why?¹⁹  — As R. Joseph learned: Just as the Beth din must be pure in righteousness, so they must be free²⁰  from every blemish.²¹  Amemar said: What verse [proves this]? — Thou art all fair, my love, and there is no blemish in thee.²²  But perhaps a literal defect [blemish] is meant?²³  — R. Aha b. Jacob answered: Scripture states, That they may stand there with thee:²⁴  'with thee' implies, like to thee.²⁵  But perhaps it was so stated there on account of the Shechinah?²⁶  — But, said R. Nahman b. Jacob: Scripture states, And they shall bear with thee:²⁷  'with thee' implies that they must be like to thee.

MISHNAH. THE SANHEDRIN SAT IN THE FORM OF A SEMICIRCULAR THRESHING FLOOR,²⁸  SO THAT THEY MIGHT SEE ONE ANOTHER, AND TWO JUDGES CLERKS STOOD BEFORE THEM, ONE TO THE RIGHT, THE OTHER TO THE LEFT, AND WROTE DOWN THE ARGUMENTS OF THOSE WHO WOULD ACQUIT AND THOSE WHO WOULD CONDEMN.²⁹  R. JUDAH SAID: [THERE WERE] THREE: ONE TO RECORD THE ARGUMENTS FOR ACQUITTAL, A SECOND, THOSE FOR CONVICTION, AND A THIRD, TO RECORD THE ARGUMENTS FOR ACQUITTAL AND CONVICTION.

1. I.e., laws transmitted down from Master to pupil.
2. In the application of these traditions. Therefore they rank as independent opinions, for with respect to the actual traditions, even the Masters had to receive them from their masters.
3. As detailed in the Mishnah.
4. Though its trial must be similar to that of its owner. Cf. supra 2a.
5. Lit., 'incline', or 'bend'.
6. Ex. XXIII, 6. This is interpreted, judgment must not be inclined in favour of conviction by a majority of only one.
7. By a majority of one, for condemnation.
8. From this it may be inferred that the procedure in the trial of an ox to be stoned is other than that of capital cases, except in the number of judges; and that difference is extended to all the other peculiarities of capital procedure, since the object of particularly applying that procedure in capital cases was to achieve the acquittal of the accused. Not so with an ox.
9. E.g., bastards may not try capital cases.
10. So making the total of nine given in the Mishnah. People of illegitimate birth are ineligible as judges in capital cases because a court of twenty-three holds the status of a minor Sanhedrin, with whom pure descent is essential; hence they are counted as one.
11. Which completes the number of ten.
12. Because such are more or less devoid of paternal tenderness Cf. Tosef Sanh. VII and X.
13. Deut. XIII, 9.
14. V. supra 27b.
15. The law that one may be competent to act as judge in one and not in another case.
16. I.e., to intermarry with Israelites.
17. Who may not come into the Assembly. Cf. Deut. XXIII, 3
18. I.e., is of pure Israelitish blood.
19. Since the Talmud does not ask, 'whence is this derived,' as before, but 'why', it may be assumed that this limitation is a Rabbinical one, and therefore the Talmud asks why it was imposed.
20. Lit., 'pure'.
21. Of family descent.
22. Cant. IV, 7. [This verse must refer to the Sanhedrin, as such a praise can hardly be sung of the whole people (Yad Ramah).]
23. I.e., a bodily defect.
24. Num. IV, 16.
25. The Elders were required to be like Moses with regard to family descent.
26. That passage explicitly states that the Shechinah was to rest upon them. Cf. Num. XI, 17. And I will take of the spirit which is upon thee and put it upon them; therefore, purity of descent was indispensable, but elsewhere, this may be unnecessary.
27. Ex. XVIII, 22, with reference to the judges set up on the advice of Jethro, to bear with Moses the burden of the people. In that passage there is no indication of the bestowal of the divine spirit upon them.
28. In Krauss, Sanhedrin-Makkot [1933] a.l. this is discussed at great length. In fact, most threshing floors were round, but their essential feature was that they were shaped like a trough. i.e., forming a depression in the soil. It is to this aspect of the threshing floor that they are compared. Hence the meaning of the passage is: They sat in semi-circular rising tiers, as in an amphitheatre.
29. They were two, as a precautionary measure against error. Cf. supra 34a.