Halakhah sa Deuteronomio 19:17: Mishneh Torah, Torah Study, Shulchan Arukh, Choshen Mishpat & Sefer HaChinukh

The disciples of the wise do not go forth personally to work with the rest of the population on construction and digging for the state, or like labor so as not to expose themselves to be degraded by the ignorant people. They should not be levied upon for the erection of a wall, repairing of the gates, wages for the watchman and the like, nor for the king's gift-fund. They should not be obliged to contribute to taxes, whether it be a fixed tax levied upon the inhabitants of the city, or whether it be a fixed tax upon every individual, for it is said: "But even though they should spend gifts among the nations, now will I gather them and they shall be humbled a little through the burden of the king and princes" (Hos. 8.10). If a disciple of the wise had merchandise to sell, he should be permitted to be first to sell it, and no one else in the market should be permitted to sell until he will sell out. Likewise, if he had a trial, and he was standing among many others who had law suits, he should have precedence, and given a place to sit down.⁹Baba Batra, 18b; Ibid. 22a.; Shebuot, 29a C.

Some say that one is fit to judge only from the age of eighteen and onwards,¹²Tur on the authority of ‘some say,’ derived from Shab. 56b: ‘R. Samuel b. Naḥmani said on the authority of R. Jonathan: Whoever says that Josiah sinned is mistaken, for it is written, And he did that which was right in the eyes of the Lord, and walked in all the ways of David his father (II Kings XXII, 2). How then do I explain, and like unto him there was no king before him that returned (Shab) to the Lord with all his heart etc., (ibid. XXIII, 25, whence it follows that at first he sinned). This intimates that he reconsidered every decision that he rendered between the ages of eight (the time of his accession to the throne Ibid. v. 1) and eighteen’ (when the Book of the Law was discovered). He thus re-examined (this is the meaning of Shab) his decisions in the light of the Book of the Law discovered by Ḥilkiah (ibid vv. 1-8). ‘Eighteen’ is taken by Rashi to refer to the eighteenth year of his reign. Hence, it has no connection with the age of the King. Some, however, take ‘eighteen’ (and this is followed by Caro in the present ruling) as the age of the King, i.e., when Josiah was eighteen years of age, the Book of the Law was discovered by Ḥilkiah. At the age of eighteen a person is considered a distinguished and conspicuous individual and has the capability to save the poor from the hand of one who would rob him. This is one of the attributes of a Judge (v. Tur a.l.) — M.E. , also Aboth V, 21. and [provided] he has grown two pubic hairs.¹³Deduced from Mishna Yeb. 96b: ‘It is all one (i.e., with respect to illegal cohabitation) whether he is of the age of nine years and a day or whether he is of the age of twenty years and has not grown two pubic hairs.’ Thus we see that if one has not produced the signs of maturity, he still counts as a minor. Cf. Nid. V, 9. Hence, the present ruling. And some say that from the age of thirteen years [plus one day] and onwards, one is eligible to judge, even if he has not grown two pubic hairs.¹⁴Derived from Y. San. IV, 9(22b): ‘R. Abbahu states on the authority of R. Joḥanan: Even one who is less than twenty years old and has not grown two pubic hairs, is eligible to try civil suits but not capital charges.’ Although the age of thirteen is not mentioned in this text, it goes without saying that the Judge must not be less than thirteen years and a day, for only then is one designated an adult. As to the text in Shab. ibid., this viewpoint accepts the interpretation of Rashi (v. n. 12 supra). Cf. also the reading in Shab. ibid., ‘until eighteen’ (עד י״ח). Were ‘until eighteen years of age’ meant the reading should have been עד בן י״ח. , Maharsha a.l. The underlying reason for the second viewpoint is that although with reference to valid testimony it is required that the witnesses possess signs of maturity, deduced from, then both the men between whom the controversy is, shall stand before the Lord (Deut. XIX, 17. This refers to the witnesses and it is obligatory that they be men, i.e., of mature age. , Sheb. 30a; B.B. 155b), this is not the case with respect to a Judge. In the latter case he must possess a reasoning mind and be versed in the intricacies of the Law. But one who is less than thirteen years old, is ineligible to judge, for being a minor he does not come under the category of observing religious duties according to Biblical Law. However, a difficulty presents itself on the basis of the principle, ‘Whoever is fit to judge is eligible to testify’ (Mishna Nid. 49b), which conversely, would mean that ‘whoever is unfit to judge is ineligible to testify.’ Consequently, it follows that according to the first opinion recorded in the present ruling, one who is thirteen years of age and has grown two pubic hairs would be ineligible to testify, and again, according to the second viewpoint, one who is thirteen years of age but has not produced two pubic hairs would be ineligible to judge. This difficulty may be removed on the assumption that the above-mentioned principle was meant to assimilate testimony and adjudication with respect to the minority age of the individual only, for in both cases, a minor, i.e., one less than thirteen years and a day is unfit — M.E. In civil suits involving immovable property (קרקעות), he may not judge until he produces two pubic hairs, for otherwise, his transaction is considered invalid in immovable property ( B.B. 155b; infra § 35, 3; § 235) — Tummim. Mishkenoth Ya‘akob supports the first view recorded in the present ruling, but concludes that a Judge should be appointed when he is at least twenty years old. Shebuth Ya‘akob states that in the case of one who judges alone we should adopt a stringent view and one should not judge before he is forty years old unless there is none other greater than he available in that city (v. Y.D. § 242, 31, Gloss). But with respect to one who is a member of a Court of three, it is permissible for him to judge even before he reaches his fortieth year, for his decision should not be regarded as inferior to that of a Court of three laymen whose decision is binding — P.Tesh. , also P.Tesh. to Y.D. ibid. A.H. writes that the above rulings are only added stringencies, and that according to Biblical Law, it seems that if the individual has grown two pubic hairs and is thirteen years of age plus one day, he may be a Judge. Before he produces the two pubic hairs, his decision is not binding (contra second opinion), for a minor’s act is ineffective.

Some say that those who are under the influence of wine are permitted to adjudicate civil suits.¹⁶Mishna San. 40a: ‘They (the Judges) drink no wine the entire day.’ Gemara ibid. 42a: ‘Why is wine not permitted? — R. Aḥa b. Ḥanina said: The Scriptural text states, It is not for princes to say, Where is strong drink (Prov. XXXI, 4), (i.e.,) those engaged in (solving) the secrets of the world (administration of justice, connecting רוזנים with רז, secret) must abstain from strong drink.’ Tosaf. ibid. s.v. העוסקים write that this refers only to the adjudication of capital charges, but not to civil suits. As to the text in ‘Er. 64a: ‘He who drank a quarter of a Log of wine must not render legal decisions,’ it refers to giving a legal decision in ritual law (איסור והיתר. Cf. the expression אל יורה). , also Yad, Bi’ath ha-Mikdash I, 3; Y.D. § 242, 13, Gloss. The present ruling, viz., that in civil suits one who is under the influence of wine may act as a Judge has reference only to a case where there are two other Judges present who will remind him of the law should he err, but a single Judge or three Judges under the influence of wine should not judge — Tummim, Nethiboth. However, according to Num. R. X, 4, one under the influence of wine may not act as a Judge even in civil suits (cf. the expression אל ידון ibid) which contradicts the present ruling. BaḤ and Shebuth Ya‘akob rule that even in civil suits one under the influence of wine is forbidden to act as Judge. Thus also R. Jonah in Sefer ha-Yir’ah makes no distinction between ritual and civil law. In both cases one under the influence of wine must not act as a Judge — P.Tesh. M.E. writes that since our wines nowadays are diluted, we may adopt a leniency with respect to a Judge who partakes of a quarter of a Log of wine. A witness may not act as a Judge.¹⁷Ket. 21a: ‘R. Abba sat and stated this law, that a witness may act as a Judge. R. Safra raised an objection against R. Abba: If three saw it (the new Moon) and they are of the Court (that sanctifies the new moon), two (of them) stand up and set (two) of their fellows (of the Sanhedrin) beside the one (Judge) and they (the two) bear witness before them (the three who constitute the Court) and (then) they may say, It is hallowed! It is hallowed!, — for a single person is not believed by himself. Now, if you entertain the opinion that a witness may act as a Judge, what is all this for? Let them sit in their places (after testifying) and declare (in conjunction with the third person), the new Moon is hallowed! — He (R. Abba) replied: That also presented a difficulty to me, and I asked R. Isaac b. Martha, and R. Isaac (asked) R. Huna, and R. Huna (asked) Ḥiyya b. Rab, and Ḥiyya b. Rab (asked) Rab, and he said to them, Leave alone the testimony regarding the new Moon (because it is) Biblical and the attestation of documents is Rabbinical (In a Biblical matter a witness may not act as a Judge; in the case of a Rabbinic enactment, e.g., the confirmation of documents this does not apply. Cf. Git. 5b).’ B.B. 113b-114a: ‘Rabbah b. Ḥanina taught a Baraitha before R. Naḥman: (It is written,) Then it shall be in the day that he causeth his sons to inherit (Deut. XXI, 16) — (this teaches) that you may make the division of inheritances during the day, but not at night. Abaye said unto him: But according to this (Abaye assumes that the division of an inheritance is made only when the person died in the daytime) would children inherit him who died during the day and not him who died at night? Perhaps you refer to the adjudication of inheritances (which must take place during the day. , supra § 5), for it was taught: (With the Biblical text), but it shall be unto the children of Israel a statute of judgment (Num. XXVII, 11), the whole section (Num. ibid. vv. 1-11 on the laws of inheritance) has been proclaimed as of a judicial nature (The judicial procedure of inheritances is equated to that of civil suits in general. Those who are present form a Court of three even if the testator’s natural heirs are opposed to it. Thus Tosaf. who explain that this refers both to a sickbed bequest as well as to one made by a person in good health. , Rashi to San. 34b). And this is in accord with Rab Judah who said: If three (persons) came to visit a sick person, they may, if they so desire (either) write down (his bequest and thus act as witnesses to the document), or issue a judicial verdict (for since they are three they form a laycourt and thus attest to the instructions of the testator and execute the Will). If two (persons came), they may write down (the instructions and act as witnesses to the document), but may not issue a judicial verdict (for since they are less than three they cannot constitute a Court and merely may act as witnesses). R. Ḥisda stated: This applies only to daytime; at night, however, even three (persons) may (only) record (the instructions of the testator and act as witnesses), but may not form a Court (because at night judicial sessions are not held for the commencement of a trial. , supra §. 5). What is the reason? Because (at night) they (merely) become (eligible to act as) witnesses and a witness may not act as a Judge (this means that even on the following day they may not act as Judges in this matter since the instructions were recorded at night and they became qualified to act as witnesses only).’ Cf. San. 34b. Mishna R.H. 25b: ‘If three saw it … It is hallowed’ (v. first part of this note for text). Gemara ibid. 25b-26a: ‘This means that a witness may act as Judge. May we say that our Mishna is not in agreement with R. Akiba, for it has been taught: If the Sanhedrin beheld a man murder a person, some of them act as witnesses and some of them as Judges. This is the opinion of R. Tarfon. R. Akiba says: They all act as witnesses and a witness may not act as a Judge? — You may even say that our Mishna is in agreement with R. Akiba, but R. Akiba stated this only with respect to capital charges, for the All-Merciful commanded, the congregation shall judge … and the congregation shall deliver (Num. XXXV, 25-26), and since they saw him murder a person, they cannot find any defence in his favour. However, in this case, even R. Akiba agrees (that a witness may act as a Judge).’ Cf. B.K. 90b. , also Y. R.H. III, 1(58d); Y. San. I, 2(18c); ibid. V, 5(23a). There are two fundamental reasons why a witness may not act as a Judge: a) Evidence that is given must be liable to refutation by proving an alibi (עדות שיכול להזימה. , supra § 1, n. 40). Hence, if we should say that a witness may act as a Judge, this principle would not be applicable, for the Judge will never accept any refutation against himself; b) It is written, then both the men between whom the controversy is, shall stand before the Lord, before the priests and the judges that shall be in those days (Deut. XIX, 17), — Both the men refers to the witnesses; between … is applies to the litigants; before the Lord … judges means that they must stand before the Judges. Hence, if a witness may act as a Judge, this exposition would be impossible. Cf. supra n. 14. , Ket. 21b, Tosaf. s.v. הנח and par. ref. Consequently, if three persons beheld the incident during the day when it is permissible to hold a judicial session, they constitute a Court of three and are not designated as witnesses. Hence, they may act as Judges as stated anon — M.E. [This applies] only [to] a witness who testifies, e.g., if one of the Judges testified¹⁸Together with another person — M.E. before his colleagues¹⁹e., before a Court of three, for hearing evidence is part of the adjudication which requires three Judges to be present. It means that after one of the Judges rises to testify in conjunction with another lay person, the remaining two Judges co-opt a third person to form a Beth Din of three. Consequently, after giving evidence, the witness may not return to sit with the Judges — M.E. about a [certain] incident which he beheld, he cannot be combined with them to hold a judicial session regarding that incident.²⁰R.H. 25b-26a and parallel passages. , texts supra n. 17; Ket. 21b, Tosaf. s.v. הנח and parallel references. However, if he does not testify, e.g., [in a case] where the three Judges beheld the incident,²¹Ibid. even if they beheld [the incident] with the express intent to be designated as testimony,²¹Ibid. — [the law is that] if they beheld it during the day,²²At which time they were eligible to act as Judges. , supra § 5, 3. they may act as Judges and may hold a judicial session concerning that incident;²³Cf. supra n. 20. A judicial session may be held in this case since we can argue that hearing the evidence should not carry greater weight than seeing the incident, and they may hold the judicial session even at a later date just as in the case of hearing evidence in general a judicial session may be held at a later date. Not so, however, when they saw the matter at night, in which case they only become witnesses and cannot act as Judges, for hearing the evidence is also not valid in the first instance if heard at night — M.E. but if they beheld it at night,²⁴At which time judicial sessions are not held. , supra § 5, 2. Likewise, if they beheld the incident on the Sabbath or Festival, they may not act as Judges, although the prohibition against trying cases on these days is only a Rabbinic measure (BaḤ). This question, however, requires further elucidation — ShaK. TaZ opposes BaḤ, for on the principle that in a Rabbinic matter a witness may act as a Judge (v. Isserles anon and supra n. 17), it should be permissible. Keneseth Ezekiel agrees with BaḤ. Tummim is in agreement with TaZ. K.H. concludes that we should adopt a leniency in this matter. Hence, they may hold a judicial session on a following day even if they beheld the incident on the Sabbath or Festival — P.Tesh. they may not hold a judicial session on [the strength of] their own evidence.²⁵ supra n. 20. For in this case since judicial sessions are not held at night, they merely become designated as witnesses and we cannot apply the principle, ‘let the hearing of evidence not carry greater weight than seeing the incident,’ since the time of seeing the incident was not the time of hearing the evidence, because we receive no evidence at night — M.E. However, on [the strength of] evidence given by others they may act as Judges.²⁶The next day or even many days later. But if they were [originally] ordered to act as witnesses [in a certain matter, — then] even on [the strength of] evidence given by others, they may not act as Judges.²⁷For in this case it carries even lesser weight than beholding the incident at night. Thus RaShBaM to B.B. ibid., where it is stated that ‘If three persons came to visit a sick man etc.’ (v. supra n. 17), whence it follows that they did not come at the express bidding of the testator to act as witnesses (note the words נכנסו לבקר), for if they were invited or ordered by the testator to come, they would be designated as witnesses, and consequently, even if they came during the day, they would not be able to act as Judges even if other witnesses give evidence. Some say, however, that even if they were [originally] ordered to act as witnesses [in a certain matter], they may act as Judges on [the strength of] evidence given by others.²⁸This is similar to beholding the incident at night. Thus Tosaf. to B.B. ibid. RaN rules as follows: If they came with the express intent to act as witnesses, we adopt the view of Tosaf.; but if they were ordered to come and act as witnesse, we follow the opinion of RaShBaM. This entire [ruling] applies to a Biblical Law,²⁹E.g., the sanctification of the new Moon. but in [the case of] a Rabbinic matter,³⁰E.g., the confirmation of documents. [the law is that even] a witness [who testified] may act as a Judge.³¹Ket. 21b, Tosaf. s.v. הנח; N.Yos. ibid.; San. 34b — G. , supra n. 17. To sum up this ruling, the following principles should be borne in mind: a) Mere intention to act as witnesses of an incident does not invalidate the individuals from acting as Judges; b) Once they have testified they no longer may act as Judges; c) If they beheld the incident during the day, they may act as Judges; if at night, they may act as Judges if others testify; d) If they were summoned to act as witnesses, there is a difference of opinion between RaShBaM and Tosaf.; e) In a Rabbinic matter even a witness who testified may act as a Judge.