Translation:Talmud/Seder Nezikin/Tractate Makkot/2a
HOW DO WITNESSES BECOME LIABLE [TO PUNISHMENT] AS ZOMEMIM?1 [IF THEY SAY:] ‘WE TESTIFY THAT N. N. [A PRIEST] IS A SON OF A WOMAN WHO HAD [FORMERLY] BEEN DIVORCED2 OR A HALUZAH,’3 IT IS NOT SAID [IN THIS CASE] THAT EACH [MENDACIOUS] WITNESS BE HIMSELF STIGMATIZED AS BORN OF A DIVORCEE OR HALUZAH; HE ONLY RECEIVES FORTY4 [LASHES]. [IF THEY SAY]: ‘WE TESTIFY THAT N.N. IS GUILTY OF [A CHARGE ENTAILING] BANISHMENT,’5 IT IS NOT SAID [IN THIS CASE] THAT EACH [MENDACIOUS] WITNESS SHOULD HIMSELF SUFFER BANISHMENT; HE ONLY RECEIVES FORTY [LASHES].
Should not the opening words of the Mishnah have been rather, ‘How do witnesses not become liable [to punishment] as zomemim?’ Moreover, since we read in a subsequent Mishnah: But if they [i.e. counter-witnesses] said to them, ‘How can you testify at all, since on that very day you were with us at such and such a place?’ these are condemned as zomemim,’6 does not ‘these’ imply that those in the foregoing instances are not treated as zomemim? — The Tanna had just been dealing with the last Mishnah in the preceding tractate [of Sanhedrin]7 to which this Mishnah is but a sequel, namely: ‘All zomemim are led forth to meet a talionic death save zomemim in an accusation of adultery8 against the [married] daughter of a priest, and her paramour, who are led forth to meet not the same death [as she], but another [manner of] death.’ Accordingly in our Mishnah we are provided with other instances of zomemim where the main law of retaliation is not enforced, but ‘a flogging of forty’ [lashes] is inflicted instead: [IF THEY SAY:] ‘WE TESTIFY THAT N. N. [A PRIEST] IS A SON OF A WOMAN WHO HAD [FORMERLY] BEEN DIVORCED OR A HALUZAH,’ IT IS NOT SAID THAT EACH [MENDACIOUS] WITNESS BE HIMSELF STIGMATIZED AS BORN OF A DIVORCEE OR HALUZAH; HE ONLY RECEIVES FORTY [LASHES]. What is the sanction for this [substitutive] penalty? — Said R. Joshua b. Levi: R. Simeon b. Lakish9 said that it is based on the text: then shall ye do unto him as he purposed to do;10 that is to say, punish him [the culprit] and not his [innocent] offspring.11 But why should not he alone be stigmatised, and not his offspring? — We must needs fulfil ‘as he had purposed to do’ and in such a case we should have failed to do so.12 Bar Pada13 says that the sanction [here, for the substitutive penalty of a flogging] may be obtained by an argument a fortiori.14 What do we find in the case of the ‘desecrator’?15 The ‘desecrator’ himself does not become ‘desecrated’ [by his forbidden association]. Is it not then logical [to argue from this] that a zomem who only came to [try and] ‘desecrate’ a person,16 but did not [in fact] desecrate him, should not become ‘desecrated’ himself? Rabina demurred to this argument, saying that if you admit this [kind of] deduction, you nullify [in effect] the law of retaliation for zomemim.