[41a - 49 lines; 41b - 46 lines]
1)[line 1]"וְכִי יָזִיד אִישׁ עַל רֵעֵהוּ לְהָרְגוֹ בְעָרְמָה...""V'CHI YAZID ISH AL RE'EHU L'HARGO B'ARMAH..."- "And if a man should plot against his fellow to murder him slyly... (Shemos 21:14). The word "Yazid" means that the deed was committed with malicious aforethought. This implies that he was warned and that he verbally acknowledged the warning, since how else could the witnesses be aware of his intent (first explanation of RASHI)? Alternatively, the tense of the word "Yazid" is future, implying that he remained with his malicious intent - even after being warned - until he actually carried out the murder (second, preferred explanation of RASHI).
2)[line 4]"[וַיַּקְרִיבוּ אֹתוֹ] הַמּוֹצְאִים אוֹתוֹ מְקוֹשֵׁשׁ עֵצִים [אֶל מֹשֶׁה וְאֶל אַהֲרֹן וְאֶל כָּל הָעֵדָה]""[VA'YAKRIVU OSO] HA'MOTZ'IM OSO MEKOSHESH ETZIM [EL MOSHE V'EL AHARON V'EL KOL HA'EDAH]"- "[And] those who found him gathering wood [brought him to Moshe and Aharon and the whole congregation]" (Bamidbar 15:33). The Mekoshesh Etzim was a Jew who profaned Shabbos by gathering kindling on the holy day. He received the death penalty of Sekilah (stoning; see below, entry # 4:a:1) (Bamidbar 15:32-36). The tense of the word Mekoshesh is present, implying that he continued to gather wood even after he was observed. This information is pertinent only if he was first warned and then chose to disregard the warning.
3)[line 5]"[... וּסְקַלְתֶּם אֹתָם בָּאֲבָנִים וָמֵתוּ ... וְאֶת הָאִישׁ] עַל דְּבַר אֲשֶׁר עִנָּה [אֶת אֵשֶׁת רֵעֵהוּ...]""US'KALTEM OSAM BA'AVANIM VA'MESU... V'ES HA'ISH] AL DEVAR ASHER INAH [ES ESHES RE'EHU...]"- "[And you shall stone them with stones and they shall die... and the man] over the matter of that which he afflicted [the wife of his fellow...]" (Devarim 22:24). This verse describes the punishment of a man who committed adultery with a betrothed woman during the six months following the confluence of her having reached twelve years of age and having attained physical maturity (a Na'arah ha'Me'urasah).
4)[line 10]סייףSAYIF (MISOS BEIS DIN)
(a)One who transgresses certain sins, after receiving a proper warning and in front of two witnesses, receives the death penalty from Beis Din (Devarim 21:22). The four death penalties administered by Beis Din, in order of stringency, are:
1.SEKILAH - one who is convicted of an Aveirah punishable by stoning is led to the Beis ha'Sekilah, which is located outside of the settlement (42b). This is a structure twice the height of an average person. The convict is given wine to drink until he is inebriated, and he is then brought to the top of the Beis ha'Sekilah with his hands tied. The two witnesses whose testimony served to convict him accompany him, and one of them pushes him off of the top platform. Should he survive the fall, the witnesses roll a large stone heavy enough to require the two of them to lift it onto him from above. If he is still alive following this, then all those assembled pelt him with stones until he perishes. Sins for which Sekilah is administered include Shabbos desecration, idol worship, cursing G-d, bestiality, sodomy, and certain illicit relations including incest with one's daughter-in-law (53a).
2.SEREIFAH - one who is convicted of an Aveirah punishable by burning is placed into refuse up to his knees. A scarf of hard material wrapped within a scarf of soft material is then wrapped around his neck. The witnesses to his crime pull on the ends of the double scarf until the convict opens his mouth, at which point molten lead is poured down his throat, burning his intestines. Sereifah is administered for certain illicit relations, including incest with one's daughter, granddaughter, or wife's daughter or granddaughter (75a).
3.HEREG / SAYIF - one who is convicted of an Aveirah punishable by death by sword has his head severed in Beis Din by the witnesses to his crime (Sefer ha'Chinuch #50). Sins for which Hereg is administered include serving Avodah Zarah along with other inhabitants of an Ir ha'Nidachas, and murder (76b).
4.CHENEK - one who is convicted of an Aveirah punishable by strangulation is placed into refuse up to his knees. A scarf of hard material wrapped within a scarf of soft material is then wrapped around his neck. The witnesses to his crime pull on the ends of the double scarf until he expires. Sins for which Chenek is administered include wounding one's parents, an elder who rules against Beis Din (a Zaken Mamrei), one who prophecies falsely, and certain illicit relations (84b).
(b)According to Rebbi Shimon, the order of stringency is Sereifah, Sekilah, Chenek, and Hereg (Mishnah, 49b).
(c)Beis Din are strongly encouraged to act leniently and find a loophole so as not to administer the death penalty (Devarim 13:15). A Beis Din that puts a sinner to death as often as once every seven years is considered a murderous Beis Din. According to Rebbi Elazar ben Azaryah, this applies to a Beis Din that puts a sinner to death as often as once in seventy years (Mishnah, Makos 7a).
5)[line 11]ותרתי בנסקליןTARTEI B'NISKALIN- two [sources (namely, that from the Mekoshesh and that from a Na'arah ha'Me'urasah) that one must receive Hasra'ah] regarding those who are liable to be stoned
6)[line 11]לר"ש... לרבנןREBBI SHIMON... RABANAN- Rebbi Shimon maintains that Sereifah is more stringent than Sekilah, whereas the Rabanan maintain that the opposite is true (see above, entry #4:b). Although both sources under discussion are punishable by Sekilah, Rebbi Shimon is able to use one to learn that Hasra'ah is necessary even for Sereifah since it is not necessary to teach this idea regarding Sekilah (Im Eino Inyan; see Background to Sanhedrin 15:31b.).
7)[line 12]מילתא דאתיא בקל וחומר, טרח וכתב לה קראMILSA D'ASYA B'KAL VA'CHOMER, TARACH V'CHASAV LAH KRA- the Torah sometimes goes out of its way to transcribe that which can be derived from an a fortiori argument (see Background to Bava Basra 111:2)
8)[line 14]וליתו הנך וליגמרו מיניהLEISU HANACH V'LIGMERU MINEI- let [that which] those [penalties of Sayif and Malkus require Hasra'ah] come and be derived from that [which even Sekilah requires Hasra'ah]
9)[line 16]"[עַל פִּי שְׁנַיִם עֵדִים אוֹ שְׁלֹשָׁה עֵדִים] יוּמַת הַמֵּת...""[AL PI SHENAYIM EDIM O SHELOSHAH EDIM] YUMAS HA'MES..."- "[Upon the testimony of two witnesses or three witnesses] shall he who is condemned to death die..." (Devarim 17:6). That which the Torah refers to he who is condemned as a "Mes" implies that it is as if he is already dead; Rava or Chizkiyah explains that this is due to that which he agreed to receive the death penalty as a result of his action.
10)[line 17]עדי נערה המאורסהEDEI NA'ARAH HA'ME'URASAH (MOTZI SHEM RA)
(a)If one accuses (Motzi Shem Ra) his ostensibly virgin wife of having committed adultery between Erusin (betrothal) and Nisu'in (marriage) and is found to be lying, he receives Malkus (lashes) (Devarim 22:18). He must also pay his wife's father a fine of one hundred silver Shekalim / Sela'im (equivalent to approximately two kg. or four lb. of silver). Furthermore, he may not subsequently divorce her against her will (ibid. 22:19).
(b)A husband may base his claim upon witnesses who testify that his wife had had relations with another during the time in question, or through a Ta'anas Damim (in which he brings proof that she lacked virginal blood; see Background to Kesuvos 2:4). An accused wife (or her father) can defend herself by either discrediting her husband's witnesses as Edim Zomemin (plotting witnesses; see next entry), or by proving that she did indeed bleed from the detachment of her hymen (and her husband obscured the proof).
(c)If valid witnesses testify that she had committed adultery after she had been properly warned of the consequences of her action, Beis Din takes her to the door of her father's house (assuming that that was where she had been living at that time; RAMBAM Isurei Bi'ah 3:9) and she is stoned to death (Sekilah; Devarim 22:21). If such witnesses testify before her marriage, then she is stoned at the city gates (Devarim 22:24; see Kesuvos 45a).
(d)These rules apply only to a Na'arah - a woman during the six months following the confluence of her having reached twelve years of age and having attained physical maturity. If she is a Bogeres (a woman after the six-month period of Na'arus), a Be'ulah (a non-virgin), or if she had once been married, then she receives the death penalty of Chenek (choking) instead of Sekilah, as in any case of adultery (44b, 48b). Furthermore, if her husband is found to be lying, he receives neither Malkus nor is he fined.
(e)The witnesses referred to in our Gemara are those who testify that the Na'arah ha'Me'urasah committed adultery while betrothed.
11)[line 18]שהוזמוHUZMU - who were proven to be "plotting witnesses" (EDIM ZOMEMIM)
(a)If different sets of at least two witnesses each contradict each other, their testimony is termed "Edus Mukcheshes," and Beis Din takes no action based upon either claim. If, however, one set of witnesses discredit the testimony of another set by claiming that they were instead with them, elsewhere, when they claimed to have witnessed the crime, then the discredited witnesses are termed "Edim Zomemim." The Torah decrees that under such circumstances the second set of witnesses are believed. As a general rule, Edim Zomemim are punished with whatever punishment they attempted to visit upon he whom they testified against (Devarim 19:16-21; see Mishnah, Makos 5a).
(b)Edim Zomemim receive that which they attempted to inflict upon another only when the second set of witnesses arrive after the first verdict was pronounced but before it was actually visited upon the litigant. If the second set of witnesses arrive before the verdict is pronounced, then the first set of witnesses are merely disqualified. If they arrive after the verdict is carried out, then the first set do not receive the punishment that they inflicted upon their victim. This is because the verse describes their punishment with the words "Ka'asher Zamam" - as they plotted to do - and not what they actually accomplished.
12)[line 18]לאוסרה על בעלה באנוL'OSRAH AL BA'ALAH BANU- we came to prohibit her to her husband [and not to cause her to receive the death penalty of Sekilah]
13)[line 18]והא אתרו בה!V'HA ASRU BAH!- but [according to their own story] they warned her [that her actions made her liable to receive Sekilah]!
14)[line 19]באשה חבירהISHAH CHAVEIRAH - a woman who is meticulous in her observance of Halachah (CHAVER)
(a)One who has earned the title of "Chaver" is meticulous in at least the following four areas of Halachah:
1.he does not give Terumah or Ma'asros to an Am ha'Aretz (an unlearned Jew who may be lax in his Torah observance);
2.he does not prepare Taharos in the vicinity of an Am ha'Aretz;
3.he is careful not to keep even Chulin from becoming Tamei;
4.he is careful to separate Ma'aser from all produce that he eats, sells, or buys (Tosefta Demai 2:2-3). The Gemara in Bechoros 30b explains exactly how one goes about accepting this distinguished status.
(b)Rav Ashi explains that the wife referred to in our Mishnah has the status of a Chaveirah since she is meticulous in her observance of Halachah.
15)[line 23]וכל עדות שאי אתה יכול להזימה, לא שמה עדותKOL EDUS SHE'IY ATAH YACHOL L'HAZIMAH, LO SHMAH EDUS - Testimony that Cannot be Contradicted is Not Valid Testimony
(a)When testifying in Beis Din, witnesses must clearly state both when and where they observed the event that they claim to have witnessed. If another set of witnesses subsequently claims that the first set were elsewhere at the time that they claimed to have witnessed the event, then the first set are termed Edim Zomemin (see above, entry #11). Testimony that cannot be contradicted in this way is not acceptable in Beis Din.
(b)Our Gemara asks that if the witnesses are able to evade punishment with the claim that they intended only to prohibit her to her husband, how can she be killed on the basis of such testimony even if she is an Ishah Chaveirah? Since they cannot receive the same punishment that she would have receive had their testimony been accepted, their testimony should not have been acceptable in the first place!
16)[line 27]כשזינתה וחזרה וזינתהKESHE'ZINSA V'CHAZRAH V'ZINSA- (the Gemara answers that the witnesses testified that) she committed adultery and then committed adultery again (in which case the only motivation for the witnesses to testify against her second act is so that she will receive the death penalty, since she has been prohibited to her husband from the first time)
17)[line 27]לאוסרה על בּוֹעלה שני באנוL'OSRAH AL BO'ALAH SHENI BANU- we came to prohibit her to the second man with whom she committed adultery (since such a man may never marry her, even after she has been divorced or widowed from her current husband; Sotah 26b)
18)[line 29]דלא יתבא תותיהLO YASVAH TUSEI- lit. she is not sitting below him; i.e., they are not yet living in the same house [since they are only betrothed]
19)[line 31]בארירןARIRAN- a) a type of ax (RASHI, second explanation of the ARUCH); b) a type of knife (first explanation of the ARUCH)
20)[line 31]אין זה "נָכוֹן"EIN ZEH "NACHON"- this is not corroborative testimony. The term "Nachon" (lit. "correct") in this context is based upon the verse which states, "... and if the matter is true and indeed correct..." (Devarim 13:15; see below, entry #22), which refers to the acceptance of testimony and serves as the source for Beis Din to cross-examine witnesses with Bedikos (RASHI to 30b).
21)[line 31]כליוKELAV- his clothing
22)[line 32]"[וְדָרַשְׁתָּ, וְחָקַרְתָּ, וְשָׁאַלְתָּ הֵיטֵב; וְהִנֵּה אֱמֶת] נָכוֹן [הַדָּבָר...]""[V'DARASHTA, V'CHAKARTA, V'SHA'ALTA HEITEV; V'HINEI EMES] NACHON [HA'DAVAR...]"- "[And you shall inquire, delve into, and ask in detail; and if the matter is true and indeed] correct..." (Devarim 13:16). This verse is written regarding the cross-examination process of witnesses in a case involving the possibility of capital punishment.
23)[line 34]בסודר שחנקו בוB'SUDAR SHE'CHANKO BO- [the article of clothing mentioned in the Beraisa] is the scarf that he choked him with (i.e., the murder weapon, which is directly related to the testimony)
24)[line 36]שבעטBA'AT- he kicked
25)[line 36]מעשה ובדק בן זכאי בעוקצי תאנהMA'ASEH U'VADAK BEN AZAI B'UKTZEI TE'ENAH- an incident occurred and Ben Zakai tested [the witnesses] by [asking them if] the stems of the fig tree [under which they claimed that the episode happened had thick stems or thin stems]
26)[line 37]שעקץ תאנה בשבתAKATZ TE'ENAH B'SHABBOS- he picked a fig on Shabbos [which is an act of Kotzer (harvesting), one of the thirty-nine acts of creative labor prohibited on Shabbos whose transgression is punishable by stoning (Mishnah, Shabbos 7:2)]
27)[line 37]דעלה קא מיקטילALAH KA MIKTIL- he is to be killed through it [and it is therefore directly related to the testimony]
28)[line 39]ששפדו בייחור של תאנהSHIPDO B'YICHUR SHEL TE'ENAH- he skewered him with a fig branch
29)[line 39]עוקציהOKTZEHA- its stems
30a)[line 39]דקיןDAKIN- thin
b)[line 39]גסיןGASIN- thick
31)[line 40](תאנים) [תאניה] שחורות (תאנים) [תאניה] לבנות(TE'ENIM) [TE'ENEHA] SHECHOROS, (TE'ENIM) [TE'ENEHA] LEVANOS- were its figs black or were its figs white? There is no way to explain this as referring to that which was integral to the murder, since it is impossible to use figs as a murder weapon.
32)[line 40]מבן זכאי לותיב איניש?MI'BEN ZAKAI LOSIV INISH?- is it possible to ask a question from the opinion of Ben Zakai?
33)[line 41]דבדיקות כחקירותBEDIKOS / CHAKIROS - The Cross-Examination of Witnesses
(a)Before witnesses testify in Beis Din to convict a perpetrator, the judges cross-examine each witness individually to determine whether or not his testimony is acceptable. Two categories of questions are asked of the witnesses in this verification process - Chakiros and Derishos (Mishnayos, Sanhedrin 32a and 40a; derived from Devarim 13:15, 17:4, and 19:18). The purpose of Chakiros is to establish exactly where and when the witnesses claim to have witnessed the event; see Background to Sanhedrin 40:1.
(b)Derishos (referred to in our Gemara as Bedikos) are follow-up questions that probe the witnesses for further details of the event. Examples of such details asked of the witnesses include whether or not the witnesses recognized the victim to be a Jew or what particular type of Avodah Zarah he worshipped. No limit is placed on the number or type of Derishos asked, and it is considered praiseworthy for a Beis Din to ask many of them.
(c)Tana'im disagree as to what kind of Bedikos are asked. The Chachamim maintain that only Bedikos that are directly related to the event witnessed are asked (i.e., the type of weapon used, or how the Avodah Zarah was worshipped). If witnesses contradict each other in these details, then their testimony is dismissed. Ben Zakai maintains that the witnesses are cross-examined even regarding details not immediately related to the event (i.e., the color of his clothing). Their testimony will even be dismissed if these details do not match (Mishnah, 40a).
(d)Testimony regarding monetary matters does not become disqualified if the witnesses cannot answer Derishos, nor even if they contradict each other in their answers (30b).
34)[line 43]עסק בפרקמטיאASAK B'PERAKMATYA- he involved himself in business dealings
35)[line 45]בחנותCHANUS- the name of a place in Yerushalayim
36)[line 45]דיני קנסות סלקא דעתך?DINEI KENASOS SALKA DAITACH?- is it possible to say that they did not judge cases of fines? [Fines may be judged by any Beis Din of Semuchin, even outside of the Beis ha'Mikdash!]
37)[line 46]שלא דנו דיני נפשותLO DANU DINEI NEFASHOS- they did not judge cases involving the possibility of capital punishment. Capital punishment may be judged only by a Beis Din of twenty-three, and only when the seventy-one member Sanhedrin sits in the Lishkas ha'Gazis in the Beis ha'Mikdash (14b). When murder became prevalent and the Sanhedrin saw that it would be too difficult to properly judge all cases of capital punishment, they voluntarily exiled themselves from the Lishkas ha'Gazis.
38)[line 46]משחרב בית המקדש, התקין רבן יוחנן בן זכאי...MISHE'CHARAV BEIS HA'MIKDASH, HISKIN RABAN YOCHANAN BEN ZAKAI...- From that which Raban Yochanan ben Zakai made decrees at the time of the destruction of the Beis ha'Mikdash, it is clear that he began his forty-year career as a judge within forty years of that destruction. Since cases of capital punishment were no longer considered beginning forty years before the destruction, Raban Yochanan ben Zakai could never have been party to such judgments.
39)[line 47]אלא בן זכאי דעלמאBEN ZAKAI D'ALMA- [the "ben Zakai" referred to in our Mishnah must have been] a different (lit. generic) ben Zakai
40)[line 48]קרי ליה רבי, "בן זכאי"?KARI LEI REBBI, "BEN ZAKAI"?- would Rebbi have called him "ben Zakai" [which is a dismissive way of referring to him, when Raban Yochanan ben Zakai was greater than Rebbi]?
41b----------------------------------------41b
41)[line 1]וקבעוה בשמיהKAV'UHA BI'SHMEI- they established [this teaching] in his name
42a)[line 3]כי קרי ליה "בן זכאי"KI KARI LEI "BEN ZAKAI"- when he is called "ben Zakai" [in our Mishnah]
b)[line 4]על שם דמעיקראAL SHEM D'ME'IKARA- that reflects what he was called at that time
43)[line 8]כי אמרי בי תרי נמי, עדותן קיימתKI AMREI BEI TREI NAMI, EDUSAN KAYEMES- if both [witnesses] say [that they do not remember], the testimony also stands [since even if one did claim to remember there would be nothing against which to check it]
44)[line 11]ואחדECHAD- and one; i.e., a third witness
45)[line 12]כרבי עקיבא דמקיש שלשה לשניםK'REBBI AKIVA D'MAKISH SHELOSHAH LI'SHENAYIM- like Rebbi Akiva who compares three witnesses to two. The Mishnah (Makos 5b) addresses the question of why the verse (Devarim 17:6; see above, entry #9) states that two or three witnesses are required before administering capital punishment. If two are enough, is it not obvious that three will suffice? The Mishnah records a disagreement between Tana'im as to what we derive from these extra words. Rebbi Akiva maintains that the reason is to equate the Halachic status of a third witness to that of the other two. Part of what this entails is that they cannot become Edim Zomemin (see above, entry #11) unless other witnesses claim that all three were with them elsewhere at the time that they claimed to have witnessed the event (see RASHI, TOSFOS DH k'Man, and Sugya ibid.).
46)[line 14]אפילו בחקירותAFILU B'CHAKIROS- even regarding Chakiros [it is possible to find a case in which a witness does not answer one of the questions and yet the testimony still stands]
47)[line 16]תנו סנהדרין בי רבהTANU SANHEDRIN BEI RABAH- learned the Mesechta of Sanhedrin in the Yeshivah of Rabah
48)[line 17]פגעPAGA- he met up with
49)[line 17]מאי אמריתו בה בסנהדרין דבי רבה?MAI AMRISU BAH SANHEDRIN D'VEI RABAH?- what [novel explanations] have you been able to come up with when learning Maseches Sanhedrin in the Yeshivah of [a man as great as] Rabah?
50)[line 19]ומאי אמרינן בה בסנהדרין גרידתא? ומאי קשיא לך?U'MAI AMRINAN BAH B'SANHEDRIN GEREIDASA? U'MAI KASHYA LACH?- and what should we have said had we not been learning Maseches Sanhedrin from such a great man (i.e., what inherent difficulty exists)? And what is your question?
51)[line 24]אידי ואידי דאורייתא היאIDI V'IDI D'ORAISA HI- both Chakiros (see 40a-b) and Derishos (see above, entry #20 and entry #33) are required by the Torah
52)[line 30]אי הכי אמריתו בה, טובא אמריתו בהIY HACHI AMRISU BAH, TUVA AMRISU BAH- if this is what you have explained in [Maseches Sanhedrin], you have indeed explained much
53)[line 31]מטיבותיה דמר אמרינן בה טובאMI'TIVUSA D'MAR AMRINAN BAH TUVA- it is [only] due to the goodness [and humility] of Mar (a third-person term of respect) that we have explained much
54)[line 32]מנזיהותיה דמר לא אמרינן בה ולא חדאMI'NEZIHUSEI D'MAR LO AMRINAN BAH V'LO CHADA- had you vociferously disputed [our point] we would have had nothing to say [since your knowledge is greater than ours]
55)[line 33]עד כמה?AD KAMAH?- until what point [in the month do we assume that if their testimony is one day off, that one of them made a mistake regarding the length of the previous month]?
56)[line 37]נימא שזה יודע בשני עיבוריןNEIMA SHE'ZEH YODE'A BI'SHNEI IBURIN- let us say that one is aware of the previous two times that the month was extended to thirty days
57)[line 40]ובשיפוראSHIPURA- the Shofar [blown when Beis Din sanctifies the day of Rosh Chodesh]
58)[line 43]מברכין על החדשMEVARCHIN AL HA'CHODESH- may one recite the monthly blessing over the new moon
59)[line 44]שתתמלא פגימתהTISMALEI PEGIMASAH- the deficit [of the moon] is filled in [since only until that point is the Berachah of "Mechadesh Chodashim" - "He who renews months" - appropriate]