The tractate Makkot has been donated anonymously in honor of Morris Dweck, Sammy Esses, Yaron Mizrahi, and Tuvi Asis, for their endless work for the holy congregation Beit Yaakov. May Hashem give them continued strength to serve the congregation and the community for the sake of Heaven, in good health, prosperity, and peace. Amen.
Today’s daf is Daf 5, amud bet. We begin with the Mishnah at the bottom of the page. The Mishnah says that a person can be executed on the testimony of two witnesses or three witnesses. If two witnesses are sufficient, why does the Torah mention three? It comes to establish a comparison between two witnesses and three witnesses.
What is the comparison? The Torah says that just as three witnesses can be discredited through hazamah against two witnesses, two witnesses can be discredited through hazamah against three witnesses. This is referring specifically to the law of hazamah: just as three witnesses can discredit two, two can discredit three.
How do we know that two witnesses can even discredit a hundred witnesses? The verse says, “Two witnesses.” This teaches that it does not matter how many witnesses there are. Even if there are a hundred witnesses, two witnesses can discredit them. Once there are two witnesses, two are equivalent to a hundred. Therefore, the Mishnah’s teaching is that just as three can discredit two, two can discredit three, because two are equivalent to a hundred.
Rabbi Shimon derives another teaching. Just as, when there are two witnesses, they are not punished until both of them become discredited witnesses, so too, when there are three witnesses, all three must become discredited witnesses for the law of hazamah to apply. How do we know that if there are a hundred witnesses, all of them must become discredited witnesses? The verse says, “Witnesses.”
That is the position of Rabbi Shimon. At this point, there is a question concerning what we said earlier. First, we explained that just as three witnesses can discredit two, two can discredit three. Then we said that two can discredit a hundred. Yesterday we learned the position of Rabbi Yehuda. What did Rabbi Yehuda say? If two witnesses enter the court and say, “You were with us,” and another two enter and say, “You were with us,” and still another two enter and say, “You were with us,” Rabbi Yehuda considers this a conspiracy.
What is the logic? Do you think that these witnesses were together with everybody in the world? We just said that two witnesses can discredit a hundred. One testimony consisting of a hundred witnesses can be discredited by two. Is it logical, then, that these two witnesses were together with a hundred people?
This is the question raised by Aruch LaNer. The Gemara does not provide a clear answer. It may be that when the witnesses come separately, they are considered separate groups. This group came at one time, and another group came at another time. In any event, the question remains, and one must say that this Mishnah does not follow Rabbi Yehuda. According to Rabbi Yehuda, two witnesses could not discredit a hundred in this way, because the fact that two witnesses were together with a hundred people would itself be suspicious.
The Mishnah continues. Rabbi Akiva says that the additional teaching concerning the third witness is not intended to be lenient toward discredited witnesses; it is intended to be stringent. Look at Rashi. Rabbi Akiva says that the teaching concerning the third witness is not included in the principle we have just learned in the Mishnah.
Rabbi Akiva says, “I do not need the verse to teach me that two witnesses can be punished together with three witnesses. I know that through logic.” Why? If two witnesses can be punished for all the witnesses, then certainly two witnesses can be punished together with three. Once there are two witnesses, two people are sufficient to establish the testimony. Nothing is stronger than two valid witnesses. Therefore, logic itself tells me that two can be punished together with three.
Alternatively, Rabbi Akiva says that logic teaches that the punishment should not take effect until all the witnesses have become discredited. The Torah treats the entire group as one unit. It is one testimony, and the whole group has become witnesses. The verse says, “It is a false testimony,” referring to the testimony as a whole. The group itself is considered one entity.
Rabbi Akiva therefore says: I agree with you concerning your teaching, but you do not need to derive it from the verse. The verse is not coming to be lenient and to say that the witnesses are not considered discredited until the entire group becomes discredited. I agree that this is the law, but I am telling you that the verse is coming to teach something else.
What is the verse coming to teach? Suppose three witnesses come to court and testify. One might think that the third witness is not included in the law of hazamah, because he was not needed. The testimony would have been valid with the first two witnesses; the third witness was merely an addition.
Rabbi Akiva says that the verse teaches that once the third witness joins the group, he becomes part of it. Even though the first two witnesses were sufficient and the third witness was not needed, he joined them and is treated as part of the group. The verse is teaching that the third witness cannot say, “Why did I come? Even if I had not joined them, these witnesses would have been discredited.” That is true: he was not needed. Nevertheless, he joined the group, and he is part of it.
If the Torah is coming to punish people who join a group of sinners, treating them as part of the group even though they were not needed, then certainly Hashem rewards people who join a group performing a mitzvah, even if they were not needed. Once you join a group performing a mitzvah, Hashem certainly rewards you.
Rabbi Akiva adds that this also teaches that Hashem’s attribute of kindness is greater than His attribute of punishment. The punishment is described as extending to four generations, whereas the reward is described as extending for two thousand generations. This means that the attribute of goodness is five hundred times greater than the attribute of punishment. If someone who joins a group of sinners is punished together with them, certainly someone who joins a group performing a mitzvah will be rewarded together with them.
The Gemara says that this principle is not limited to the number of witnesses. If one of the witnesses is related or otherwise disqualified, the entire testimony is disqualified. If there are three witnesses and one of them is related, the whole group is considered one entity, and the entire group is rejected.
From where do we know that this applies even when a hundred people come and testify and one of them is a relative? The verse says, “Witnesses.” The word teaches that even if a hundred witnesses come, they are all treated as one group.
Rabbi Yosef says: When is this true? It is true in a capital case, where one must do everything possible to save the person on trial. In a capital case, there is an obligation to seek every possible reason to save the defendant. Therefore, even if one witness among a hundred is related, the entire testimony is rejected.
In monetary cases, however, one removes the disqualified witness and allows the testimony of the remaining witnesses to stand. In a monetary case, the entire testimony is not rejected merely because one witness is disqualified.
When does all of this apply? It applies when the witnesses formed themselves into a group of witnesses. What makes a person a witness? He must make himself a witness. In other words, he must give a warning to the person committing the act: “Do not do this, because it is prohibited.” The warning makes him a witness.
If he merely saw what happened as a bystander, he is not necessarily a witness. This distinction is essential. Suppose two brothers see a person murder someone, together with a third person. If merely seeing the event makes someone a witness, then the two brothers would disqualify the entire group, and the murderer could not be executed. We would have three people who saw the murder, but because two of them were brothers, the entire group would be rejected. Are you going to say that the murderer cannot be executed for that reason?
Rather, seeing the event alone does not make someone a witness. The two valid witnesses become witnesses because they gave the warning. If merely seeing the crime made someone a witness, it would be extremely difficult to execute anyone. If two brothers saw the murder together with a third person, one would have to say that the murderer could not be executed because one of the two brothers was part of the group.
Therefore, a person becomes a witness through seeing the act together with the intention to testify and giving the warning. When do we say that if one person in the group is disqualified the entire group is rejected? When that person actually became a witness. What makes him a witness? His warning to the person committing the act.
Both witnesses must be present for the warning. One witness cannot give the warning while the other is entirely absent. For example, if a person is walking with a knife to stab someone, he must be warned not to do it. The witnesses must be present in the relevant way.
Rava says that this applies only when all the witnesses testified within the same period of speech. You said that a hundred witnesses are like two witnesses, but that is true only when the hundred came together as one group. If two witnesses came, and then two other witnesses came separately, they are two different groups. If one group is discredited, it does not affect the other group.
What does it mean that they testified within the same period of speech? It means that the testimony of one witness follows directly after the testimony of the preceding witness. The Gemara says that this is the amount of time it takes a student to greet his teacher by saying, “Peace be upon you, my teacher.” All the witnesses do not literally have to speak within three seconds. Rather, each witness must testify directly after the previous witness, within the same continuous sequence of testimony.
According to one explanation, the heading in the text is misplaced and belongs at the end of the Mishnah. At the end of the Mishnah, the discussion returns to Rabbi Akiva. Rabbi Akiva maintains that in order to be considered a witness, a person must have the intention to be a witness. If he has no intention of being a witness, he is not part of the group.
The Gemara disagrees with this position. According to the other view, it is not necessary to have the intention to become a witness. If a person saw the event, he is part of the group. This creates a fundamental dispute between these two positions.
According to the view that merely seeing the event makes a person a witness, consider the following case. A victim sees the person killing him. The victim is also a witness, but he is disqualified because he is related to himself. He is considered related to the person who died because he is that person. If anyone who sees the event automatically becomes part of the testimony, the victim would disqualify the entire group.
Then one could never bring a murderer to court, because the victim always saw the crime. This is the case of a person who sees his own murder. According to the view that no intention is necessary, the victim saw what happened and is related to himself, so he should disqualify the testimony.
One answer is that the case concerns a victim who was attacked from behind. The murderer killed him from behind, so the victim did not see what happened. Therefore, the victim did not become part of the group of witnesses.
Another possible case concerns a person being assaulted in a prohibited sexual act. The victim may be watching what is happening, but perhaps the assault was carried out from behind, so the victim did not see the act. He therefore does not disqualify the group.
What about the perpetrator himself? The murderer saw the crime. The person who committed the prohibited act saw what he was doing. He too is related to the victim or to the person with whom he acted. Should he disqualify the entire group?
The Gemara remains silent. Eventually it says that the verse, “By the testimony of two witnesses,” refers to those who establish the matter through their testimony—the witnesses—and not to the people who actually carried out the act. The perpetrators are not considered part of the group of witnesses, even though they saw what happened. Therefore, the victim and the perpetrator do not disqualify the testimony.
Rabbi Yosef then says: What are you talking about? If everyone who saw the event is accepted as part of the group, suppose three people saw the event and two of them were brothers. Would you say that no one could ever be executed? How do you determine what a person’s intention was? How do you know whether he merely looked at what was happening or whether he intended to become a witness?
The answer is that the court asks them: “When you came to see the event, did you come merely as bystanders to observe what was happening, or did you come with the intention of being witnesses, so that you could later go to court and testify?” If they say, “We came to be witnesses,” they become part of the group. If they say, “We were merely passing by and wanted to see what was happening,” they are not included as witnesses.
Suppose two brothers did not know that the other was present. If one brother saw the other and says, “I did not intend to be a witness; I was merely watching what happened,” then he may not be included in the group. If both brothers intended to become witnesses, then the entire group is disqualified. The crucial question is their intention.
This is a very important issue. If one says that a person does not need the intention to testify, then anyone who looks at an event becomes a witness. According to the other position, however, a person must intend to testify. He does not become a witness merely by looking at what happened.
This issue also has practical implications today, even though we do not execute people. At a wedding, witnesses are required for the act of betrothal. Everyone’s eyes are focused on the couple: the brothers, uncles, mothers, fathers, and the rest of the guests. If everyone who sees the act automatically becomes a witness, there is a serious problem, because many of them may be relatives or otherwise disqualified.
Even according to the view that intention is required, there may be a problem. Perhaps one particularly knowledgeable person standing under the wedding canopy does not know the law and wants to be stringent. He sees the act and says, “I also want to be a witness. I am going to be stringent.” If he intends to become a witness, he could potentially join the group and affect the validity of the testimony.
What should be done? Before the act of betrothal, one announces that these two people are the witnesses, to the exclusion of everyone else. This is necessary in order to avoid the problem. If one does not state that the designated witnesses are to the exclusion of everyone else, there may be a problem even according to the view that intention is required, because another person may have intended to join the testimony.
Once the other people have been explicitly excluded, they are not part of the group. Even if someone came with the intention of testifying, he has been excluded. Therefore, only the designated witnesses are included.
The next Mishnah presents an interesting case. Two witnesses see the person committing the act from one window, and two other witnesses see him from another window. The person committing the act is in the middle, and someone in the middle gives him the warning: “Do not do this. If you do it, you will receive the appropriate punishment.”
If at least one witness from the first group can see at least one witness from the second group, then all four witnesses are considered one group. Since they are one group, if one of them is related or otherwise disqualified, the entire group is rejected. Likewise, all four must become discredited witnesses in order for the law of hazamah to apply to the entire group.
However, if the two groups cannot see one another, then they are considered two separate groups. This creates an important consequence. Both groups come to court and testify that they saw the person commit the act. If one group is discredited through hazamah, while the other group is not discredited, the second group’s testimony remains valid.
In such a case, the person who committed the crime could be executed, and the discredited witnesses from the first group could also be punished. How could such a situation arise? The first group comes to court and says, “We saw this person commit the act.” They are challenged and told, “You were with us in another place.” They become discredited witnesses. Then the second group comes and says, “We also saw this person commit the act.” Since the second group was not discredited, its testimony can still be used against the defendant.
There was a question about this case. If the two groups actually stood at the windows and saw each other, then they would be one group. The Mishnah is speaking about people who claim that one group was at one window and the other group was at another window, but the groups did not see each other. They are therefore treated as two separate groups.
Rabbi Yosef completes the Mishnah by saying that there is no execution unless the testimony is established through two witnesses. This is the additional teaching: the witnesses themselves must provide the warning in order for the person to be punished. As we explained, the person standing in the middle gives the warning, and the witnesses see him giving it.
The verse says, “By the testimony of two witnesses.” This also teaches that the court must hear the testimony directly from the witnesses themselves. The court may not receive the testimony through an interpreter.
The Gemara then asks: From where do we know that separate testimony is invalid? What is meant by separate testimony? Two witnesses stand at different windows. Neither sees the other, but both later come to court and testify. One says, “I was standing at the right-hand window and saw the person commit the act.” The other says, “I was standing at the left-hand window and saw the same act.” They both saw it, but they did not know that the other person was also watching.
How do we know that such testimony cannot be joined? The verse says that a person cannot be executed through the testimony of one witness. The Gemara initially suggests that this means one witness in the ordinary sense, but that is unnecessary. We already know that one witness is insufficient because the verse requires two witnesses.
Rather, the verse teaches that even two individual witnesses who saw the event separately cannot necessarily be joined. They must see the event together and must see one another. It is not enough for one person to watch the crime and then call another person to come and look after he has moved away. They must see the event simultaneously, as one group.
The Gemara challenges this. If two witnesses who each saw the entire act cannot be joined because they did not see one another, then certainly two witnesses who each saw only part of the act cannot be joined. Why would the Mishnah need to teach that case as well?
The Gemara answers that the case may involve an act for which one does not need to see the entire event in order to establish the violation. For example, in a prohibited sexual act, one witness may see the beginning and another witness may see the continuation. Each witness sees a sufficient part of the prohibited act to testify that a violation occurred. They did not see the entire act, but they saw enough to establish the matter.
Thus, the teaching is not necessarily limited to a case in which both witnesses saw the entire act. Even if one witness saw one part and the other witness saw another part, their testimony cannot be joined when they did not see one another. Nevertheless, in the type of case being discussed, each one may have seen enough to establish the prohibition on its own.
Returning to the Mishnah, the witnesses may see the person giving the warning, or the person giving the warning may see the witnesses. The person who is about to commit the act may also give the warning, and he may be considered a witness in certain respects. Even a demon could theoretically give the warning in the formulation of the discussion, and the witnesses could see the warning being given.
Rav Nachman says that separate testimony is valid in monetary matters. In a monetary case, two people who did not see each other can testify separately. One person may say, “I saw from one window that this individual borrowed money on a particular day,” and the other may say, “I saw the same thing from another window.” Their testimony can be joined in a monetary case.
The verse says, “He shall not be put to death by the testimony of one witness.” The verse is discussing capital cases. In monetary cases, however, separate testimony can be valid.
The Gemara challenges this distinction. In capital cases, there is a principle that one must do everything possible to save the defendant. If two witnesses who saw the event separately are not joined, that can actually be stringent against the defendant. Suppose two witnesses saw the act from one window and two saw it from another window, and the groups did not see each other. If one group becomes discredited, the other group remains valid, and the defendant may still be executed.
If, however, the two groups were considered one group, then once one group became discredited, the entire group would be discredited, and the defendant would be saved. Therefore, refusing to join the groups is a stringency in a capital case. Why, then, would the law not join them in order to save the defendant?
The Gemara answers that perhaps the principle requiring us to save the defendant should lead us to combine the four witnesses into one group. Then, once two of them become discredited, the entire group would be discredited, and the defendant would go free. Since one must do everything possible to save the person facing execution, perhaps the witnesses should be joined even when they did not see one another.
This remains a difficulty. The question is whether the witnesses should be treated as separate groups, which may ultimately be stringent against the defendant, or as one group, which would be lenient because the disqualification of one group would affect the entire testimony. The Gemara leaves this as a challenge.