Babylonian Talmud: Tractate Sanhedrin

Folio 46a

Since, however, they are separated from each other, it has the effect of including an idolater, [1] who is like him, [the blasphemer] in every respect. 'Whilst R. Eliezer employs [the rule of] extension and limitation.' [Thus:] And if he be put to death then thou shalt hang him is an [indefinite] extension; for he is hanged because of a curse … is a limitation. Now, had these two clauses been placed beside each other, we should have extended the law only to an idolater, who is similar to him in every respect. Since, however, they are separated from each other, it has the effect of extending [the law] to all who are stoned. [2]

A MAN IS HANGED etc. What is the Rabbis' reason? — Scripture states, then the shalt hang him — 'him', [3] but not her. [4] And R. Eliezer? [5] — 'Him' implies without his clothes. And the Rabbis? [6] — [They admit that] that indeed is so; but Scripture says, And if a man have committed a sin, [7] implying, a man, but not a woman. And R. Eliezer, — how does he interpret the words, And if a man have committed? — Resh Lakish answered: As excluding a stubborn and rebellious son [8] [from that mode of execution]. But has it not been taught: A stubborn and rebellious son is stoned and [afterwards] hanged: so says R. Eliezer? — But, said R. Nahman b. Isaac: [He interprets it] as including a stubborn and rebellious son. How so? [9] — Scripture says, As if a man has committed a sin — 'a man,' but not a son; 'a sin' implies one who is executed for his [present] sin, thus excluding a stubborn and rebellious son, who is executed on account of his ultimate destiny. [10] So we have one exclusion following another, and such always indicates inclusion. [11]

WHEREUPON R. ELIEZER SAID TO THEM: BUT DID NOT SIMEON B. SHETAH HANG etc. R. Hisda said: They taught this [12] only of two different death penalties, [13] but if a single mode of execution is involved, they [two charges] may be tried [on the same day]. But in the instance of Simeon b. Shetah, only one mode of execution was involved, and yet [the Sages] said to him [14] that the cases should not [legally] have been tried! — But if a statement was made, it was made thus: They taught this only of a single death penalty appearing as two. And how can that be? E.g., [when one is accused of] two different transgressions. [15] But cases dealing with the same transgression and the same mode of execution may be tried. [16]

R. Adda b. Ahabah raised an objection: 'Two [capital] cases may not be tried in one day; not even that of an adulterer and his paramour'? [17] R. Hisda explained this as referring to the daughter of a priest and her paramour; [18] or to the daughter of a priest and the refuters of the refuting witnesses. [19]

It has been taught: R. Eliezer b. Jacob said: I have heard [20] that the Beth din may, [when necessary,] impose flagellation and pronounce [capital] sentences even where not [warranted] by the Torah; yet not with the intention of disregarding the Torah but [on the contrary] in order to safeguard it. [21]

It once happened that a man rode a horse on the Sabbath in the Greek period and he was brought before the Court and stoned, not because he was liable thereto, [22] but because it was [practically] required by the times. [23] Again it happened that a man once had intercourse with his wife under a fig tree. [24] He was brought before the Beth din and flogged, not because he merited it, [25] but because the times required it. [26]

MISHNAH. HOW IS HE HANGED? [27] — THE POST IS SUNK INTO THE GROUND WITH A [CROSS-] PIECE BRANCHING OFF [AT THE TOP].²⁸ AND HE [29] BRINGS HIS HANDS TOGETHER [30] ONE OVER THE OTHER AND HANGS HIM UP [THEREBY]. R. JOSE SAID: THE POST IS LEANED AGAINST THE WALL, [31] AND HE HANGS HIM UP AFTER THE FASHION OF BUTCHERS. HE IS IMMEDIATELY AFTERWARDS LET DOWN. IF HE IS LEFT [HANGING] OVER NIGHT, A NEGATIVE COMMAND IS THEREBY TRANSGRESSED, FOR IT IS WRITTEN, HIS BODY SHALL NOT REMAIN ALL NIGHT UPON THE TREE, BUT THOU SHALT SURELY BURY HIM THE SAME DAY FOR HE IS HANGED [BECAUSE OF] A CURSE AGAINST GOD,³² — AS IF TO SAY WHY WAS HE HANGED? — BECAUSE HE CURSED THE NAME [OF GOD]; AND SO³³ THE NAME OF HEAVEN [GOD] IS PROFANED. [34]

R. MEIR SAID: [35] WHEN MAN SUFFERS, [36] WHAT EXPRESSION DOES THE SHECHINAH [37] USE? — MY HEAD IS TOO HEAVY FOR ME, MY ARM IS TOO HEAVY FOR ME. [38] AND IF GOD IS SO GRIEVED OVER THE BLOOD OF THE WICKED THAT IS SHED, HOW MUCH MORE SO OVER THE BLOOD OF THE RIGHTEOUS!

AND NOT ONLY OF THIS ONE [A CRIMINAL,] DID THEY [SC. THE SAGES] SAY IT, [39] BUT WHOSOEVER LETS HIS DEAD LIE OVER NIGHT TRANSGRESSES A NEGATIVE COMMAND. [40] IF HE KEPT HIM OVER NIGHT FOR THE SAKE OF HIS [41] HONOUR, TO PROCURE FOR HIM A COFFIN OR A SHROUD, HE DOES NOT TRANSGRESS THEREBY.

AND THEY DID NOT BURY HIM [THE EXECUTED PERSON] IN HIS ANCESTRAL TOMB, BUT TWO BURIAL PLACES WERE PREPARED BY THE BETH DIN, ONE FOR THOSE WHO WERE DECAPITATED OR STRANGLED, AND THE OTHER FOR THOSE WHO WERE STONED OR BURNED.

WHEN THE FLESH WAS COMPLETELY DECOMPOSED, THE BONES WERE GATHERED AND BURIED IN THEIR PROPER PLACE. [42] THE RELATIVES THEN [43] CAME AND GREETED THE JUDGES AND WITNESSES, AS IF TO SAY, WE HAVE NO [ILL FEELINGS] AGAINST YOU IN OUR HEARTS, FOR YE GAVE A TRUE JUDGMENT.

1. The separation indicates that the rule of the general and particular is not to be applied in the usual way to limit the law solely to the thing specified, but to extend it to some similar thing.
2. Whatever their offence.
3. A man.
4. A woman.
5. How does he interpret the verse?
6. Do they not agree with the interpretation given by R. Eliezer; whence then do they deduce the exemption of a woman from hanging?
7. Deut. XXI, 22, which is the introduction to the passage under discussion,
8. The term 'man' is used of one who has reached the age of thirteen, and one cannot be declared rebellious once he has reached that age. V. infra 68b.
9. Surely 'man' implies the reverse, if anything.
10. V. infra 72a, top.
11. V. p. 71, n. 7. Hence this includes a rebellious son.
12. That two capital cases may not be tried on one day by the same court.
13. Because where the crimes committed are different, the mitigating circumstances cannot be carefully brought forward to a hasty discussion.
14. R. Eliezer, in answer to his remark.
15. E.g., the desecration of the Sabbath and idolatry, although both are punishable by the same penalty — stoning. Two such cases may not be tried on the same day. All the more so cases involving two different modes of execution may certainly not be tried on the same day.
16. But in the instance of Simeon the son of Shetah the women were convicted for what Scripture regards as two different branches of witchcraft, viz., necromancy and charming. Cf. Lev. XX, 27; hence the Rabbis remarked that his action was illegal, but that it was done in an emergency.
17. Tosef, Sanh. VII. Although it is one transgression involving the same penalty; moreover, the crime of both consisted in the single identical act.
18. Whose executions are not simiiar. The woman is punished by burning (Lev. XXI, 9) and the man by strangulation if she be a nesu'ah, or by stoning, if she be an arusah (v. Glos.).
19. E.g., if A and B, who gave evidence against the daughter of a priest, were refuted by C and D, and the latter were afterwards themselves refuted by E and F, the woman undergoes her due death penalty — burning — since her refuting witnesses C and D were proved to be collusive, and the false witnesses are punished by the same penalty as the male adulterer (strangulation or burning, according to the status of the woman). V. infra 90a.
20. From my teachers.
21. Lit., 'to make a fence round it.'
22. The prohibition against riding on the Sabbath is only a 'shebuth', l.e., a Rabbinical injunction. Cf. Bezah. 37a M.
23. During the time that Palestine was under Greek rule there was great laxity in the Jews' adherence to their religion, and stringent measures had to be adopted to enforce observance (Rashi). [Cf. Derenbourg, Essai, p. 107.]
24. I.e., in public.
25. The law does not prescribe this punishment for such improper conduct.
26. I.e., loose morals prevailed at the time.
27. After being stoned.
28. This bears no resemblance at all to crucifixion. Cf. Rabbinowicz, Legislation criminelle du Talmud, p. 111: What a difference between this hanging after death, where the executed man had both his hands tied and did not remain one minute upon the gallows, and the Supplicium, which the Romans inflicted upon Jesus, who was nailed to the cross whilst alive, with his hands on the cross, and left hanging on the gallows all day.
29. The first witness, Krauss, loc. cit.
30. [ [H], Me'iri reads [H]]
31. And not fixed into the ground.
32. Deut. XXI, 23. [H] is interpreted by the Mishnah as an objective genitive — 'a curse against God'.
33. If his body be left hanging a considerable time, thus reminding men of his blasphemy.
34. Man's sin reflecting, in a manner of speaking, on God.
35. In interpretation of the words [H].
36. In consequence of sin, as those are who are executed in this instance.
37. The word [H] is omitted in most editions of the Mishnah. Where it is omitted, the definite article is added to the word [H], and the phrase is translated, 'When man suffers, what does the tongue say?' [The tongue stands for the Divine, and some texts accordingly add here, 'if it could be said', [H].]
38. V. Gemara. The phrase is intended to express how painful it is to God when His children suffer, even though they may deserve punishment for their iniquities, as a father would deplore the pain of his sinful son.
39. I.e., that the corpse must not be left hanging over night.
40. Mentioned above.
41. 'HIS' is ambiguous, and the Talmud on 47a discussed to whom it refers.
42. I.e., the family vault.
43. Soon after the execution.

Sanhedrin 46b

AND THEY OBSERVED NO MOURNING RITES [1] BUT GRIEVED [FOR HIM], [2] FOR GRIEF IS BORNE IN THE HEART ALONE.

GEMARA. Our Rabbis taught: Had it been written, 'If he has sinned, then thou shalt hang him,' I should have said that he is hanged and then put to death, as the State does. [3] Therefore Scripture says, And he be put to death, then thou shalt hang him — he is first put to death and afterwards hanged. And how is this done? — It [the verdict] is delayed until just before sunset. Then they pronounce judgment and put him [immediately] to death, after which they hang him; One ties him up and another unties [him], [4] in order to full the precept of hanging.

Our Rabbis taught: [Then thou shalt hang him on] a tree: [5] this I might understand as meaning either a cut or a growing tree; therefore Scripture states, Thou shalt surely bury him: [6] [thus, it must be] one that needs only burial, [7] so excluding that which needs both felling and burial. [8] R. Jose said; [It must be] one that needs only burial, thus excluding that which requires both detaching and burial. [9] And the Rabbis? [10] — Detaching is of no consequence. [11]

AS IF TO SAY WHY WAS HE HANGED? — BECAUSE HE CURSED etc. It has been taught: R. Meir said: A parable was stated, To what is this matter comparable? To two twin brothers [who lived] in one city; one was appointed king, and the other took to highway robbery. At the king's command they hanged him. But all who saw him exclaimed, 'The king is hanged!' [12] whereupon the king issued a command and he was taken down.

R. MEIR SAID etc. How is that implied? [13] — Abaye answered: It is as though one said: It is not light. [14] Raba objected: If so, he [the Tanna] should have said: My head is heavy upon me, my arm is heavy upon me! [15] Raba therefore explained it thus: It is as though one said: Everything is light [16] to me. But this [the word Kilelath] is needed for its own purpose! [17] — If so, Scripture should have stated 'mekallel:' [18] why 'kilelath'! [19] Then perhaps the entire verse was written for that purpose? [20] — If so, it should have stated, 'killath:' [21] why 'kilelath'. [22] Hence both [meanings] are inferred from it.

AND NOT ONLY OF THIS ONE etc. R. Johanan said on the authority of R. Simeon b. Yohai: Whence is it inferred that whoever keeps his dead [unburied] over night transgresses thereby a negative conmmand? [23] — From the verse, Thou shalt surely bury him; [24] whence we learn that he who keeps his dead [unburied] over night transgresses a prohibitory command. Others state: R. Johanan said on the authority of R. Simeon b. Yohai: Where is burial [as a means of disposing of the dead] alluded to in the Torah? — In the verse, Thou shalt surely bury him: here we find an allusion to burial in the Torah.

King Shapor [25] asked R. Hama: From what passage in the Torah is the law of burial derived? The latter remained silent, and made no answer. Thereupon R. Aba b. Jacob exclaimed: The world has been given over into the hands of fools, for he should have quoted, For thou shalt bury! [26] — [That is no proof, since] it might merely have meant, that he should he placed in a coffin! [27] But it is also written, Bury, thou shalt bury him. [28] — He [King Shapor] would not have understood it thus. [29] Then he should have proved it from the fact that the righteous were buried! [30] — [He might object.] That was merely a general custom. [31] Well then, from the fact that the Holy One, blessed be He, buried Moses! [32] — But, [he might answer,] that was so as not to depart from the general custom. But come and hear! And all Israel shall make lamentation for him and they shall bury him. [33] — That [too] might have been done so as not to depart from the general custom. [But again it is written,] They shall not be lamented, neither shall they be buried; they shall be as dung upon the face of the ground? [34] — The purpose of that, however, might have been to depart from the established custom. [35]

The scholars propounded: Is burial [intended to avert disgrace. [36] or a means of atonement? [37] What is the practical difference? If a man said, 'I do not wish myself [38] to be buried.' If you say that it is to prevent disgrace, then it does not depend entirely upon him; [39] but if it is for atonement, then in effect he has declared, 'I do not desire atonement.' [40] What [then is its purpose]? Come and hear! 'From the fact that the righteous were buried.' If then you say that it is for atonement — are the righteous in need thereof? Even so, for it is written, For there is not a righteous man upon earth who doeth good and sinneth not. [41]

Come and hear! [It is written,] And all Israel shall make lamentations for him, and they shall bury him, for only he of Jeroboam shall come to the grave. [42] Now should you assert [that burial] is for the attainment of forgiveness, then the others too should have been buried, that there might be atonement for them? — This one [sc. Abijah], who was righteous, deserved to find forgiveness, but the others were not [worthy] to attain it.

Come and hear! They shall not be lamented neither shall they be buried. [43] — [It may be precisely] in order that there might be no atonement for them.

The scholars asked: Is the funeral oration in honour of the living or of the dead? What is the practical difference? If the deceased had said, Pronounce no funeral oration over me; [44] or again in respect of collecting [the cost] from the heirs! [45] — Come and hear! And Abraham came [46] to mourn for Sarah and to weep for her. [47] Now, should you maintain that it is no honour of the living: in that case for Abraham's honour he delayed Sarah's [burial]! — [There] Sarah herself was pleased that Abraham should attain honour through her.

Come and hear! And all Israel shall make lamentation for him and they shall bury him: [48] If you say that it is in honour of the living, were these [Abijah's relatives] worthy of honour? [49] — It is pleasing to the righteous that people [50] should be honoured through them.

Come and hear! They shall not be lamented neither shall they be buried! [51] — The righteous do not wish to be honoured through evil-doers.

Come and hear! They shall die in peace, and with the burnings of thy fathers, the former kings that were before thee, so shall they make a burning for thee, and they shall lament thee, saying Ah! Lord. [52] Now if you maintain that it is in honour of the living, of what consequence was this to him? [53] — He spoke this to him: Israel will be honoured through thee, as they were honoured through thy parents. [54]

1. E.g., the seven and thirty days and the twelve months, v. M. K. 20a.
2. As, in ordinary cases, before the burial.
3. V. supra p. 304, n. 2.
4. I.e., no sooner is he hung up, than he is untied and taken down.
5. Deut. XXI, 22.
6. The need of burial for the post is deduced from the strengthening of the idea of the verb by the infinitive, [H], v. supra 45b.
7. Such as a detached post.
8. E.g., a growing tree.
9. I.e., excluding a post which is driven into the earth, because it must be detached thence before it can be buried. Therefore he maintains that it must not be fixed in the ground, but merely leaned against the wall.
10. Do they not admit the justice of R. Jose's arguments, and if so, why do they assert that the post is driven into the earth?
11. I.e., it is not a weighty action which constitutes a real delay of burial.
12. Being twins their appearance was similar. So man has some resemblance to God, having been created in His image. Cf. Gen. V, 1.
13. R. Meir's explanation of the word [H].
14. [H].
15. Using the positive adjective [H] instead of the negative, 'not light'.
16. Euphemistically for heavy, as no one is inclined to speak evil in connection with his own person. (Rashi). Kohut explains it as meaning that when one is in trouble he cannot pull himself together, and is in a state of light headedness or giddiness. V. 'Aruch. vol. VII, p. 90, n. 4.
17. As indicating that the law refers to a 'blasphemer', v. supra p. 300, n. 4.
18. Which is the exact Hebrew for 'blasphemer'; (cf. Lev. XXIV, 14: Bring forth him that hath cursed, i.e., the blasphemer — Heb. [H]).
19. Which, though it may mean 'a curse (against God),' (v. p. 304, n. 6), is not as unambiguous as mekallel. Hence it must have been chosen because both meanings can be understood in it.
20. Which R. Meir deduces from it, according to Raba; how then do I know that it refers to a blasphemer at all? It may refer to any criminal.
21. [H]; 'the lightness of'.
22. Which also implies blasphemy.
23. His body shall not remain all night: Deut. XXI, 23, which in the first place was stated in reference to those executed by the Court.
24. The infinitive indicates that the command concerns all dead, not only those executed by the Court.
25. [Shapor II, King of Persia, 359-380, transferred the royal residence to Csetifon, and there came in contact with Jewish sages, v. Obermeyer, op. city., p. 175.]
26. Ibid. 23.
27. Lit., 'that a coffin should be made for him.' The verse does not necessarily imply that the corpse must be placed in the ground — so, at least, it might be urged.
28. [H], and the emphatic infinitive must imply burying in the earth.
29. I.e., a Gentile would not have understood the principle underlying the deduction.
30. Thus it is related in Scripture that the Patriarchs were buried.
31. Prior to the giving of the law, and so has no basis in the Torah.
32. Cf. Deut. XXXIV, 6.
33. I Kings XIV 13, with reference to Abijah the son of Jeroboam I, King of Israel, who was seriously ill. The fact that he would come to his grave in peace and be mourned by all Israel was foretold to his mother by the Prophet Ahijah, whom she consulted respecting his recovery. Hence it is evident that burial was an established practice after the giving of the law also.
34. Jer. XVI, 4. Hence non-burial was regarded as a punishment for the wicked.
35. Which would thus be a great disgrace. Kohut accounts for this discussion being raised on the part of the Persian King Shapor by the fact that the ancient Persians regarded burial as a desecration of the soil, which they looked upon as sacred. V. 'Aruch. Vol. I, p. 271 s.v. [H].
36. Decomposition and putrefaction make the dead loathsome: burial may be intended to spare them and their relatives the disgrace.
37. For the sins committed during life-time Cf. infra 47a, where it is stated that the process of decay in the earth is a means of expiation.
38. Lit., 'that man'.
39. Because his relatives are humiliated along with him.
40. And so, even if he is buried, he does not attain forgiveness.
41. Eccl. VII, 20
42. I Kings XIV, 13, referring to Abijah, the son of Jeroboam.
43. Jer. XVI, 4, i.e., if burial is a means of expiation, why should they too not attain it?
44. If it is in honour of the living, he has no power to object; on the other hand, the heirs can then dispense with it.
45. If it is in honour of the dead, they are obliged to pay for a funeral oration, even against their desire,
46. From Mt. Moriah, the scene of the binding of Isaac.
47. Gen XXIII, 2.
48. I Kings XIV, 13.
49. Seeing that the whole family of Jeroboam, with the exception of Abijah, were wicked.
50. I.e., the people as a whole even outside the immediate family circle.
51. Jer. XVI, 14. If lamentation is in honour of the living, why were the righteous who survived them deprived of that honour?
52. Jer. XXXIV, 5; a prophecy to Zedekiah, the last king of Judah.
53. Zedekiah, that Israel would be honoured.
54. It may be observed, both here and in the following passage, that if the deceased is a king, the honour of the living, if that is the purpose of the funeral eulogy, extends beyond his immediate family circle and embraces the people as a whole.