| C. Those Who Are Punishable By Decapitation: | Title page | Index To Biblical Quotations In Mishnah And Tosefta |
M.XI. 1. These are they who are to be strangled: (1) He who strikes his father or mother; (2) he who steals a soul from Israel; (3) an elder who defies the court; (4) a false prophet; (5) one who prophesies in the name of a false god; (6) an adulterer; and (7) those who falsely accuse a priest’s daughter and her paramour.
He who strikes his father or mother [^473] is not guilty till he bruise them. Cursing is more serious
[ p. 137 ]
M.than striking: for he who curses after death is guilty, while he who strikes after death is free from penalty.
M.He who steals a soul from Israel is not guilty till he bring it into his own domain and make use of it, as it is written: AND TREAT HIM AS A SLAVE AND SELL HIM. [^474] If a man steal his own son, R. Johanan, the son of Beruka, [^475] convicts, but the majority acquit. If one steal a man who is half free and half a slave, [^476] R. Jehuda convicts, but the majority acquit.
M.2. “The elder who defies the court: ”it is written, IF A MATTER BE TOO DIFFICULT FOR THEE TO JUDGE, BETWEEN BLOOD AND BLOOD, AND BETWEEN PLEA AND PLEA, [^477] etc. There were three courts: one at the gate of the Temple yard, one at the door of the Temple Mount, and one in the Hewn Chamber. They come to the court at the gate of the Temple Mount, and he (the accused elder) says, “Thus have I expounded, and thus have my colleagues expounded; such and such have I pleaded, and such and such have my colleagues pleaded.” [^478] Then if they (of the [ p. 138 ] court of the Temple Mount) had heard any tradition (bearing on the point) they told it. If not, they come to the court which is at the gate of the Temple yard, and he (the aforesaid elder) says, “Thus have I expounded, and thus have my colleagues expounded; such and such have I pleaded, and such and such have my colleagues pleaded.” Then if they (of the gate of the Temple yard) had any tradition, they told it. If not, both courts went to the Great Court in the Hewn Chamber, whence the Law goes out to all Israel, as it is written, FROM THAT PLACE WHICH THE LORD SHALL CHOOSE. [^479] Then, if the accused elder return to his city, and expound and plead as he was wont to teach, [1] he is innocent; but if he direct the judgment to be carried out, he is guilty, for it is written, THE MAN THAT DOETH PRESUMPTUOUSLY, [2] etc.;—he is not guilty until he direct the carrying out of the judgment. A mere disciple [3] who should direct the carrying out of the judgment is innocent; hence what appears to be severity against him is found to be leniency.
3. It is more serious to offend against decrees of the Scribes than against decrees of the Law. [4] One [ p. 139 ] who says, “There should be no phylacteries,” thereby transgressing against the words of the Law, [5] is innocent; but he who says, “There should be five [6] passages of Scripture in them,” adding to what the Scribes ordain, is guilty.
The defiant elder was not put to death by the court of his own city nor by that in Jabne, but was brought up to the Great Court in Jerusalem, kept in prison till a festival, and put to death on a festival, for it is written, ALL THE PEOPLE SHALL HEAR AND FEAR, [7]\—so R. Akiba; but R. Jehuda says, “His case should not be delayed, [8] but he should be put to death at once, while they write, despatching the news everywhere: N. son of N. has been condemned to death by the Court.”
T. XIV 12. The defiant elder who has taught, and practised according to his teaching, is guilty. If he have taught and not practised he is free. If he have taught with the intention of practising, even if he have not actually practised his teaching, he is guilty.
M.XI. 5. “ The false prophet ” [9] is he who prophesies what he has not heard, and what was not told [ p. 140 ] him; [10] whereas he who suppresses his prophetic message, or regards as exaggerated the words of another prophet, or transgresses his own words, his death is left in the hands of Heaven, as it is written: I WILL REQUIRE IT OF HIM. [11]
T. XIV. 13. He who prophesies in order to abrogate anything of what is written in the Law, is guilty. R. Shimeon says: If he prophesy in such a way as partly to abrogate and partly to support, he is free from penalty. If he have prophesied in the name of an idol, even if he maintain it one day and withdraw it another, he is guilty.
He who prophesies what he has not heard, like Zedekiah the son of Chenaanah [12]; or prophesies what has not been told him, like Hananiah the son of Azzur [13]\—who heard what Jeremiah the prophet was prophesying in the upper street and went and prophesied otherwise in the lower street; or suppresses his prophetic message, like Jonah, the son of Amittai [14]; or regards a prophetic message as exaggerated, like the companion of Micah [15]; or transgresses his own words like Iddo [16]; or changes his prophecy; or a stranger who ministers in the Temple; or a priest who ministers before he is fully cleansed, [17] or before he has made the atonement offering after his cleansing, or who ministers without the proper garments, or with hands and feet unwashed, or with hair unkempt, or after having [ p. 141 ] drunk wine: all of these are to die. By what means are they to die? At the hands of Heaven.
M.XI. 6_a_. He who prophesies in the name of a false god, [18] is he who says: “Thus saith the god.” Such a one is guilty even though his message confirm the halaka concerning unclean and clean things.
M.6_b_. He who has criminal connexion with a man’s wife: that is, at a time when the woman, after the marriage, has come under the control of the husband. Even though the marriage be not consummated, if he have criminal connexion with her, he is to be strangled.
M.6_c_. “The false witnesses against a priest’s daughter, and the one who is her paramour”:—all false witnesses are subject to the same death penalty (to which the accused has been made liable) except in the case of the false witnesses against the priest’s daughter and her paramour (who are to be strangled). [19]
[ p. 142 ]
T.
T. XIV. 17. All perjurers and illicit paramours are subject to the same death penalty to which their victim has been condemned: if it was stoning they are to be stoned; if it was burning they are to be burned. In what cases does this hold good? When the same death can be inflicted: when the death penalty attached to the crime is stoning, the accused is stoned, and also the perjurers; when burning is the penalty, both accused and perjurers are burnt. But in the present case, the unjustly accused is burnt, while the perjurers are strangled.
| C. Those Who Are Punishable By Decapitation: | Title page | Index To Biblical Quotations In Mishnah And Tosefta |
136:6 Exod. 21. 15. ↩︎
137:1 Deut. 24. 7. ↩︎
137:2 R. Jochanan b. Beruka, a pupil of Jehoshua b. Hanania, and a prominent authority on marriage laws. ↩︎
137:3 One who has paid his master half the amount necessary for purchasing his freedom. ↩︎
137:4 Deut. 17. 8-13. ↩︎
137:5 The whole of this sentence has dropped out of C by error. ↩︎
138:1 Deut. 17. 10. ↩︎
138:2 Not in accordance with the instructions of the supreme Sanhedrin. The mere teaching does not carry with it criminal liability. ↩︎
138:3 Deut. 17. 12. ↩︎
138:4 One who has not been co-opted to any court as judge, and has, therefore, no right to utter decisions, much less to carry them into practice. Though this may be a disability, the fact that he cannot suffer the penalty of the defiant elder must be regarded as a counterbalancing gain. ↩︎
138:5 Because, to decide a matter in opposition to the written Law carries with it its own condemnation; whereas, to oppose the oral p. 139 tradition (of equal authority with the Law of Moses; see Pirke Aboth I. 1 ff.) does not, to the same degree, stand self-condemned; and is, therefore, the more pernicious. Cf. Matt. 15. 6; Mark 7. 8. ↩︎
139:1 Deut. 6. 8. ↩︎
139:2 The Scribes ordain four; Exod. 13. 1-10; 11-16; Deut. 6. 4-9; 11. 13-21. ↩︎
139:3 Deut. 17. 13. ↩︎
139:4 For reasons which he gives in Tosefta XI. 7. ↩︎
139:5 Deut. 18. 20. ↩︎
140:1 Bamberg text adds a superfluous “His death is at the hands of men.” ↩︎
140:2 Deut. 18. 19. ↩︎
140:3 1 Kings 22. 11. ↩︎