Talmud - Sanhedrin 40b סנהדרין מ׳ ב׳

The Gemara asks: But why not say that each one is as it is written, and conclude that the Torah requires, respectively, three, two, and two interrogations in the three cases of idol worship, an idolatrous city, and conspiring witnesses, discussed in those verses? As, if it is so, i.e., if there is a requirement of seven interrogations in all cases of capital law, let the Merciful One write them in one place, and it would be derived from there to other cases. The Gemara answers: Since they are all written together, i.e., they all employ analogous terminology, one learns the halakhot of one from the other, and once one learns the halakhot of one from the other, they are considered as if they are written in one place.

The Gemara asks: But those three instances of idol worship, an idolatrous city, and conspiring witnesses are not similar to each other, so how can one derive the halakhot of one from the other? The Gemara records a mnemonic device for the following terms: Escapes, sword, forewarning.

What are the differences? The case of an idolatrous city is not similar to those two, i.e., idol worship and conspiring witnesses, because for the others their money escapes their fate. Although the court executes those transgressors, their money is not confiscated. By contrast, in the case of an idolatrous city, not only are the residents executed, all of their property is destroyed. Idol worship is not similar to those two, as the other two transgressions are judged by the sword, while the punishment for idol worship is death by stoning. The case of conspiring witnesses is not similar to those two, as those who transgress the two other transgressions require forewarning in order to be liable for the transgression, while conspiring witnesses are not forewarned before they testify.

The Gemara explains: This is not an association based on conceptual similarity alone; rather, we learn one from the other based on a verbal analogy employing the words “diligently” and “diligently.” “Diligently” is used in all three verses. The Gemara comments: And this verbal analogy must be free, i.e., these terms must be superfluous in their context. The Torah included them for the express purpose of establishing the verbal analogy. A verbal analogy that is based on otherwise extraneous terms cannot be logically refuted. This is because if these terms are not free, the verbal analogy can be refuted. The Gemara concludes: This is not so [la’ei], i.e., the verbal analogy cannot be refuted, as they are free. The Gemara explains: Since the Torah could have written: And they inquire and investigate, and the verse modified its statement by writing “diligently,” learn from it that this term’s function is to have it be free, to enable a verbal analogy.

The Gemara challenges this explanation: And yet it is free on only one side, as the term is superfluous in two of the verses but not in all three of them. The Gemara explains: Granted, with regard to these two, idol worship and conspiring witnesses, it is free, because it could have been written only: And you inquire and you investigate, but instead the word “diligently” also appears in the verse. But in the verses concerning an idolatrous city, what could it have written differently? They are all written.

The Gemara answers: There, it is also free, as the term is superfluous in that verse as well. Since the Torah could have written: You shall inquire, or: You shall investigate, in an emphatic form by doubling the verb, and the verse modified its statement by writing: “And you shall inquire and investigate diligently,” learn from it that this term’s function is to have it be free in order to enable a verbal analogy. By way of this verbal analogy, the Gemara has derived the requirement for seven interrogations in cases of capital law where the punishment is either death by stoning or death by the sword.

The Gemara continues: And one can learn that this applies to those transgressors who are strangled as well, by means of an a fortiori inference from those transgressors who are stoned and from those who are killed by the sword. Just as in these cases, where the transgression is severe as evidenced by their severe mode of execution, seven interrogations are required, the requirement should apply all the more so to those transgressors who are strangled, who committed a less severe transgression. And one can learn that this applies to those transgressors who are burned as well, by means of an a fortiori inference from those transgressors who are stoned.

The Gemara questions this last inference: This works out well according to the opinion of the Rabbis, who say that stoning is more severe than burning (see 49b). Consequently, it is possible to derive by means of an a fortiori inference the halakha of a transgression whose punishment is burning from the halakha of a transgression whose punishment is stoning. But according to the opinion of Rabbi Shimon, who says that burning is more severe than stoning, what is there to say?

Rather, Rav Yehuda said: There are an additional two phrases in the verses that are used to teach the halakha of the seven interrogations. The verse states with regard to the idolatrous city: “And you shall inquire, and investigate, and ask diligently and behold it be truth, the matter certain” (Deuteronomy 13:15). Additionally, the verse states with regard to idol worship: “You have inquired diligently and behold it be truth, the matter certain” (Deuteronomy 17:4). When one adds the two usages of “truth” and “certain” to the seven expressions stated earlier, consequently, there are eleven expressions; seven are used to teach the halakha of the seven interrogations, and of the four that remain, remove three, one for each verse, for the purpose of the verbal analogy, and one remains.

According to the opinion of Rabbi Shimon, this additional expression serves to include the halakha that the seven interrogations applies to those transgressors who are burned. According to the opinion of the Rabbis as well, who learned this from an a fortiori inference, the additional expression teaches this same halakha, as with regard to a matter that can be derived through an a fortiori inference, the verse nevertheless takes the trouble and writes it explicitly.

Rabbi Abbahu ridiculed this explanation: Say this additional expression serves to add that there are eight interrogations. The Gemara asks: And are there eight interrogations? What interrogation can be added? The Gemara suggests: And why not? But there is the possibility to add this question to the interrogation: When in the hour, i.e., at what time within the hour. And this is also taught in a baraita: They would examine him with eight interrogations.

The Gemara comments: This works out well according to the explanation of Abaye of the opinion of Rabbi Meir, who says, in explaining Rabbi Meir’s opinion: A person does not err at all, i.e., when witnesses state an hour in which an event occurred, it is assumed that they are completely accurate. And also according to the version of his statement that Abaye says: A person errs a bit; it is well. Consequently, there is a reason to ask at what time during the hour the event occurred. But according to the explanation of Abaye of the opinion of Rabbi Yehuda, who says, in explaining Rabbi Yehuda’s opinion: A person errs up to half an hour, and according to the opinion of Rava, who says: People err even more than that; what can be said? There is no reason to ask at what time during the hour the event occurred, as any inconsistency will be ascribed to an innocent error.

The Gemara suggests: Rather, there is the possibility to add the question: In how many years within the jubilee, i.e., in which of the fifty years, the event occurred.

The Gemara questions this explanation: This is exactly the same question as: In which seven-year period of the jubilee did the event occur, as one can calculate the year within the jubilee by knowing the seven-year period. The Gemara suggests: Rather, there is the possibility to add the question of: In which jubilee cycle did the event occur, in the current cycle or the previous cycle? And the other Sage, i.e., Rabbi Abbahu, who assumes that there cannot be an eighth interrogation, holds that once the witness said in which seven-year period of the jubilee the event occurred, there is no need to ask in which jubilee it occurred, as the court would have no reason to think that he is testifying about an event that occurred fifty years prior.

§ The mishna teaches that Rabbi Yosei says they ask only on which day, at which hour, and in which place the event occurred, but not more. It is taught in a baraita the reasoning behind this dispute: Rabbi Yosei said to the Rabbis: According to your statement that the court asks all seven interrogations, when there is a witness who came to court and said: The accused killed the victim last night, should the judge say to him in his examination: In which seven-year period of the jubilee, in which year, in which month, on which day of the month did the accused murder the victim? What would be the purpose of asking these questions? It suffices that they ask him about the day, the time, and the place.

The Rabbis said to him: According to your statement, when there is a witness who came to court and said: The accused killed the victim just now, should the judge say to him in his examination: On which day, at which hour, in what place did the accused murder the victim? The witness already stated that the murder had just occurred.

The Rabbis continue: Rather, even according to your opinion, although it is not necessary to ask these questions in this particular case, we impose the obligation to answer all the interrogations on the witnesses, in accordance with the explanation of Rabbi Shimon ben Elazar, that the court beleaguers the witnesses in attempt to confuse them (see 32b). Here too, although it is not necessary to ask these questions in this particular case, we impose the obligation to answer all the interrogations on the witnesses, in accordance with the explanation of Rabbi Shimon ben Elazar.

The Gemara asks: And what would Rabbi Yosei respond to this claim? The Gemara explains: He holds that the witness testifying: The accused killed the victim last night, is common in most testimonies. Therefore, this testimony is taken into account when deciding the content of the interrogations. By contrast, the witness testifying: The accused killed the victim just now, is not common in most testimonies, i.e., it is relatively rare. Therefore, this testimony is not taken into account when deciding the content of the interrogations.

§ The mishna teaches that after the interrogations the court asks several questions essential to the testimony, such as: Do you recognize him? The Sages taught in a baraita: In a trial for murder, the court asks the witness: Do you recognize the accused? Did he kill a gentile? Did he kill a Jew? Did you forewarn him? Did he accept the forewarning on himself, i.e., acknowledge the warning? Did he release himself to death, i.e., acknowledge that he is aware that the court imposes capital punishment for murder? Did he kill within the time required for speaking a short phrase, as if not, he could claim he forgot the warning?

In the case of one who is an accused idol worshipper, the court asks the witness: Whom among the idols did he worship? Did he worship Peor? Did he worship Markulis? And in what manner did he worship? Was it by sacrificing an offering, or by burning incense, by pouring wine as a libation, or by prostrating before the idol?

Ulla says: From where in the Torah is the obligation of forewarning derived? As it is stated: “And if a man shall take his sister, his father’s daughter, or his mother’s daughter, and see her nakedness and she see his nakedness, it is a disgraceful deed and they shall be cut off in the sight of their people” (Leviticus 20:17). One can ask: Is that to say that the matter is dependent on sight? The transgression is engaging in sexual intercourse, not seeing each other. Rather, the meaning of “and see” is: He is not liable until he sees the reason of the matter, that it should be clear to him that he is committing a transgression by having been forewarned. If this halakha is not needed for the matter of excision [karet], as this punishment is in the hands of Heaven, and God is aware whether or not he acted intentionally,

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

Sanhedrin 40b explores why courts require multiple interrogations in capital cases, comparing idol worship, an idolatrous city, and conspiring witnesses through verbal analogy.