Talmud - Makkot 2a מכות ב׳ א׳

MISHNA: How are witnesses rendered conspiring witnesses? This applies in a case where two witnesses came before the court and said: We testify with regard to so-and-so, who is a priest, that he is the son of a divorced woman or the son of a ḥalutza, a yevama who performed the rite of ḥalitza to free herself from the levirate bond. Those testimonies render him a ḥalal (see Leviticus 21:6–7), one disqualified from the priesthood due to flawed lineage. If a second set of witnesses testifies in court and renders the first set conspiring witnesses, one does not say with regard to each of the conspiring witnesses: This witness shall be rendered the son of a divorced woman or the son of a ḥalutza in his stead. Rather, he receives forty lashes as punishment for his false testimony.

Likewise, in a case where two witnesses came before the court and said: We testify with regard to so-and-so that he is liable to be exiled to a city of refuge for unwittingly killing another (see Numbers 35:11), and a second set of witnesses testifies in court and renders the first set conspiring witnesses, one does not say with regard to each of the conspiring witnesses: This witness shall be exiled in his stead. Rather, he receives forty lashes.

GEMARA: The Gemara analyzes the opening question of the mishna: But based on the cases discussed in the mishna, the tanna should have asked: How are witnesses not rendered conspiring witnesses? The standard punishment for conspiring witnesses is the punishment that they conspired to have inflicted upon the subject of their testimony. The mishna cites anomalous cases where their punishment does not correspond to the punishment they sought to have inflicted. The Gemara asks: And furthermore, from the fact that the tanna teaches in a mishna cited later (5a): But if the second set of witnesses attempting to render the first set conspiring witnesses said to them: How can you testify to that incident when on that day you were with us in such and such place, these first witnesses are conspiring witnesses. One learns by inference from the final phrase in the cited passage: These are conspiring witnesses, that those enumerated in the mishna here are not conspiring witnesses.

The Gemara answers both questions: The tanna is standing there in his studies, at the end of tractate Sanhedrin, which immediately precedes Makkot, and Makkot is often appended to the end of Sanhedrin. The mishna there teaches (89a): All those who are rendered conspiring witnesses are led to be executed with the same mode of execution with which they conspired to have their victim executed, except for conspiring witnesses who testified that the daughter of a priest and her paramour committed adultery, where the daughter of the priest would be executed by burning (see Leviticus 21:9) and her paramour would be executed by strangulation. In that case, they are not taken directly to be executed with the same mode of execution that they sought to have inflicted on the woman; rather, they are executed with a different mode of execution, the one they sought to have inflicted on the paramour.

Therefore, the tanna continues in this first mishna in Makkot: And there are other conspiring witnesses with regard to whom the court does not apply the halakhot governing the punishment in standard cases of conspiring testimony at all, and they do not receive the punishment they sought to have inflicted. Rather, they receive forty lashes. How, and in what cases, is this applied? This is applied in a case where two witnesses came before the court and said: We testify with regard to so-and-so that he is the son of a divorced woman or the son of a ḥalutza, one does not say with regard to each of the conspiring witnesses: This witness shall be rendered the son of a divorced woman or the son of a ḥalutza in his stead. Rather, he receives forty lashes.

The Gemara asks: From where is this matter derived that the court does not punish the witnesses with the punishment they sought to have inflicted and disqualify them from the priesthood? Rabbi Yehoshua ben Levi says that Rabbi Shimon ben Lakish says: It is derived from a verse, as the verse states: “And you shall do to him as he conspired” (Deuteronomy 19:19), from which the Gemara infers: It is done “to him,” but not to his offspring. Rendering the witness a ḥalal would disqualify his offspring as well. The Gemara challenges: Let the court invalidate the witness and not invalidate his offspring. The Gemara explains: That too would not accord with the directive in the verse, as based on the verse we require that the punishment be “as he conspired to do” (Deuteronomy 19:19), and that is not the case here, as the witness conspired to disqualify the subject of his testimony and his offspring.

Bar Padda says that this alternative form of punishment is derived through an a fortiori inference: If one who actually disqualifies another from the priesthood, i.e., a priest who fathers a son with a divorcée disqualifies their son from the priesthood, is not himself disqualified from the priesthood, so too with regard to this witness who came to disqualify another from the priesthood but was unsuccessful and did not disqualify him because he was rendered a conspiring witness, isn’t it logical that he should not be disqualified? Ravina objects to this reasoning: If so, that the failure of the conspiring witnesses to achieve their objective is the consideration at the basis of the a fortiori inference, you have thereby rendered the halakha of conspiring witnesses obsolete, as one could claim:

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Makot 2a explores how conspiring witnesses are punished with lashes rather than the penalty they falsely sought to impose, using priestly lineage and exile cases.