The Method of Legal Procedure in Non-Capital Cases

Tractate Sanhedrin, Herbert Danby tr. [1919], at sacred-texts.com

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The Method of Legal Procedure in Non-Capital Cases.

M.III. 6a. How were witnesses examined? They were brought in and admonished; ¹ they were then sent out, leaving behind the chief one of them. He is asked, "How do you know that A is indebted to B?" If he answer, "A acknowledged the indebtedness to me," or "C told me that A was indebted to B," his statement is valueless. His evidence is valueless until he can say, "In our presence A acknowledged that he owed B two hundred zuzim." ²

T. V. 5b. The evidence of witnesses is not regarded as valid unless they have actually seen what they assert; and R. Jehoshua, the son of Karha, maintains that it is likewise invalid when the two witnesses do not agree. Their evidence is only regarded as upheld when the two are as one.

R. Shimeon says: They hear the words of the first witness one day, and when the other comes on the morrow they hear his words.

VI. 1. If the witnesses say, "We testify against A that he slew the ox of B," or "cut the plants of C," and the accused say, "I do not know," he is guilty. If they were to say, "Thou didst intend to slay it," or "Thou didst intend to cut them," it is merely a matter of suspicion. If a man say, "Hast thou slain my ox?" or "Hast thou cut my plants?" the other may answer "No" or "Yes" with the intent of mystifying his questioner. For there is a nay that is a yea, and a yea that is a nay.

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M.III. 6b. If after the second witness has been brought in and examined their statements are found to agree, the matter is then discussed. Should two of the judges pronounce the accused innocent and one guilty, he is declared innocent. Should two pronounce him guilty and one innocent, he is declared to be guilty. Should one pronounce him innocent and one guilty, or even if two pronounce him innocent or guilty, while the third declares himself to be in doubt, the number of judges must be increased.

7. After the matter has been discussed, the contending parties are brought in. The chief judge then announces, "A, thou art innocent," or "A, thou art guilty." And whence do we know that when one of the judges goes out he must not say, "It was I who acquitted and my colleagues who convicted; but what can I do when they are in the majority"? Of such a one as this it is said: HE THAT GOETH ABOUT AS A TALEBEARER, REVEALETH SECRETS; BUT HE THAT IS OF A FAITHFUL SPIRIT CONCEALETH THE MATTER. ¹

T. VI. 2. Men must stand when they pronounce sentence, or bear witness, or ask for absolution from vows, or when they remove any one from the status  of priesthood or of Israelitish citizenship. The judges may not show forbearance to one man and strictness to another, nor suffer one to stand and another to sit; for it is written: IN RIGHTEOUSNESS SHALT THOU JUDGE THY NEIGHBOUR. ² R. Jehuda said, "I have heard a tradition that if they wish to let them both sit, they can do so; yet this is of no

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importance. But where is it forbidden that one sit and another stand?" They replied in the name of R. Ishmael: "It has been said: Be clothed as he is clothed, or: Clothe him as thou art clothed."

3. After what fashion do they conduct the trial? The judges remain seated with the contending parties standing before them; and the one who brings the charge states his case first. When there are witnesses, these are brought in and admonished. All of them except the chief witness are then sent out, and the judges hear what he has to say and then dismiss him. Afterwards they bring in the two contending parties who state their case in each other's presence. If all the judges decide that the accused is innocent, he is adjudged innocent; and if all the judges decide that he is guilty, he is adjudged guilty. The same applies to non-capital and capital cases.

Non-capital cases are tried by three judges. If two convict or acquit and the other declares that he is in doubt, the number of judges is increased. Of more worth is the decision of one who says "guilty" than that of one who declares himself in doubt. To what extent do they add to the judges? Gradually, adding two at a time. If both (the new judges) declare him innocent, he is adjudged innocent; and if guilty, he is adjudged guilty. If one of them convicts while the other declares himself in doubt, the number of the judges must be increased, for up to that point the court has not come to a decision. If one says innocent, and another guilty, and another declares himself in doubt, the number of judges is increased, for up to that point they have but added one (to either side).

4a. They must go on adding to the judges until the trial is completed.

M.III. 8. So long as the accused can bring forward evidence, it may undo the decision. If he have

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been told to bring forward all his evidence within M. thirty days, and he do so within the thirty days, it may undo the decision. But after thirty days it may not ¹undo the decision.

Rabban Shimeon, the son of Gamaliel, asked: "What happens if he have not found it within thirty days, but find it after thirty days?" It was answered: "If they have said to him, 'Bring witnesses,' and he say 'I have no witnesses'; or 'Bring evidence,' and he say 'I have no evidence'; yet after the stated time he find both witnesses and evidence, it shall not avail him."

Rabban Shimeon, the son of Gamaliel, asked: "What happens if he did not know that he had witnesses, then found witnesses; or did not know that he had evidence, then found evidence?" It was answered: "If they have said to him, 'Bring witnesses,' and he say 'I have none'; or 'Bring evidence,' and he say 'I have none'; and then, seeing himself about to be condemned, he say: 'Bring in such and such men and let them bear witness,' or if he bring out some evidence from his girdle, it shall not avail him."

T. VI. 4b. Evidence and proofs can always be brought to the court until the trial is completed. The witnesses cannot withdraw their statements until the trial is completed, or until such time as that to which the trial has been deferred. If the judges fix a time limit for the accused, and he bring forward further evidence within that time, it is accepted from him; after that time it is not accepted from him,--so R. Meir; but the majority

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hold that even if he bring it after three years it is accepted from him, and may annul the former decision. But if they say "Have you other witnesses?" and he say "I have but these"; or "Have you further proofs?" and he say "None but these," yet after that time he have found other witnesses and other proofs, they cannot be accepted from him unless he bring evidence to the fact that he never knew of them.

5. The witnesses can always withdraw their statements before they are investigated by the court. But after they have been investigated by the court they cannot withdraw them. And that is the general rule on this question. Witnesses who give evidence in cases of clean and unclean, of family relationships, of what is forbidden or allowed, of guilt or innocence,--if before their testimony has been investigated they say, "We were inventing," they are to be believed. If they say this after their testimony has been investigated they are not to be believed.

6. Witnesses cannot be adjudged perjurers until the trial has been completed. They cannot be scourged, fined, or put to death, until the trial has been completed. One of the witnesses cannot be adjudged a perjurer without the other; and one cannot be scourged without the other, or put to death without the other, or fined without the other. Said R. Jehuda, ¹ the son of Tabbai: "May I not live to see the consolation, ² if I did not once put to death a perjured witness in order to root out the opinion of the Boethuseans, ³ who used to say that

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a perjured witness could not be put to death till after the accused had been put to death." Shimeon, the son of Shatah, said to him: "May I not live to see the consolation, if thou hast not shed innocent blood! For the Law says: AT THE MOUTH OF TWO WITNESSES OR THREE WITNESSES SHALL HE THAT IS TO DIE BE PUT TO DEATH. ¹ Just as there are two witnesses, so there must be two perjurers." At that time Jehuda, the son of Tabbai, agreed that he would never utter a legal decision except in agreement with Shimeon, the son of Shatah. ²

VII. I. Said Rabban Shimeon, the son of Gamaliel: At first, the only ones who subscribed to women's marriage settlements were either priests, Levites, or true Israelites eligible for marriage into priestly families.

Said R. Jose: At first there were no contendings of opinion in Israel except in the court of the seventy in the Hewn Chamber. ³ Other courts of twenty-three were in the various cities of the land of Israel, and two other courts of three each were in Jerusalem, one in the Temple Mount, and one in the chamber of the Temple Wall. If any one were in need of legal direction, he went to the court of his own city, and if there were none there he went to the one nearest his city. If there they knew a tradition bearing on the case they told it to him; if not, he and the instructing judge of that court went together to the court in the Temple Mount. If there they knew a tradition bearing on the case, they told it to them; if not, they and the instructing judge went to the court in the Chamber of the Temple Wall. If there they had a tradition bearing on the case,

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they told it to them; if not, both parties went to the court in the Hewn Chamber.

This court consists in all of seventy-one members, and never falls below twenty-three. ¹ If one of the members wish to go out he first looks round: if there are twenty-three there, he may go out; if not he cannot.

This court used to sit from the time of the morning daily offering till the evening burnt offering; but on Sabbaths and holy days the members used only to go to the Beth Midrash ² in the Temple Mount. If, when a question was put to them, they knew a tradition bearing on the case, they told it; if not, it was put to the vote. If in a case, the majority decreed a thing to be unclean, it was unclean; if clean, it was clean. Thence did the legal decision go forth and spread abroad in Israel.

But from the time that the disciples of Shammai and Hillel grew so numerous, ³ these few courts did not suffice for their needs, and opposing views increased in Israel. Therefore they (in the chief court in Jerusalem) used to send and seek out every one who was wise and sane, fearing sin and of blameless past, and from whom the spirit of health descended. Such a one they made a judge in his city. ⁴ After he had served as a judge in his own city they brought him up and gave him a seat in the court in the chamber of the Temple Wall; and from there they promoted him to the court in the Hewn Chamber.

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It was there that they sat and investigated the priestly and Levitical pedigrees. ¹ The priest whose claim to the priesthood was found to be invalid went away clothed and veiled in black; while he whose claim was found to be valid, was clothed in white and served with his brethren the priests. He brought the tenth of an ephah ² as his sin-offering, and offered it with his own hand, even though it was not his course. ³ But whether he be a high-priest or an ordinary priest, if he have served in the Temple before bringing his tenth of an ephah, ⁴ his service is valid.

2 a. They may not judge two cases on one day, even though they be the cases of an adulterer and his paramours. ⁵ But they judge the one first and then the other. And they cannot vote on two points at once, nor be asked two questions at the same time; but they vote first on the one and then on the other, and first hear the one question and then the other. They may not vote except in a large place, nor may they vote except where they can be heard. If one member argue on the basis of a tradition, while the others all say "We have never received such a tradition," they do not vote on this. But if it is a case where one would allow and another disallow, or one declare clean and another unclean, while all admit that there is no tradition bearing on the matter, on this they vote.

If one speaks in the name of two, and to win the name of one, the word of the one who speaks in the name of two is of greater authority than the word of the two who speak in the name of one. Also, a father and his son, or a master and his

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pupil, count as one only in voting on cases of purity and impurity. They may not sit side by side even though they say nothing, but must get up and sit apart.

Footnotes

62:1 Put on oath.

62:2 The zuz was equivalent to the silver denarius, worth a quarter of a shekel.

63:1 Prov. 11. 13.

63:2 Lev. 19. 15.

65:1 C omits "not."

66:1 Lived in the time of Alexander Jannaeus and Alexandra (Salome). With Shimeon b. Shatah his name is preserved as that of the third of the Zugoth "pairs" of scholars, who handed on the unwritten tradition from the time of Simon the Just. See Pirke Aboth, I. 1 f.

66:2 For this expression, cf. Luke 2. 25.

66:3 These were a Jewish sect, closely akin to the Sadducees, and, like them, denying the immortality of the soul, and the resurrection. They are frequently referred to as in conflict with the Pharisees.

67:1 Deut. 17. 6.

67:2 According to rabbinic tradition (see Tosefta Hagiga, 2. 8.) Shimeon and Jehuda were President and Vice-President respectively of the court.

67:3 The meaning is, that here only was it allowed to decide by vote an issue for which tradition gave no guidance. The judgments of the other courts were tied to precedents.

68:1 The minimum necessary in a capital case.

68:2 House of Study. The Sabbath was devoted to the study, as opposed to the practice, of the Law.

68:3 The School of Hillel and the School of Shammai were representatives of rival types of exegesis; the one arguing in favour of a more lenient, and the other for a more harshly literal interpretation of the Law.

68:4 Apparently to act as local expert, and avoid as far as possible the need of appealing to a higher court.

69:1 Cf. Josephus, Contr. Apion. I. 7.

69:2 Lev. 6. 20.

69:3 1 Chron. 24. 1 ff. Cr. Luke I. 8.

69:4 That is, before the revision of his priestly pedigree.

69:5 Where conviction in the one case involves conviction in the other.