II.--JUDICIAL PROCEDURE

Those who are Eligible and those who are Ineligible as Judges or Witnesses.

M.III. 1. Non-capital cases are tried by three judges. Each of the contending parties chooses one, and the two together choose a third,--so R. Meir; but the majority hold that the two judges choose the third. Each may refuse to accept the other's judges,--so R. Meir; but the majority hold this to be the case only when proof is brought against them to the effect that they are kinsfolk or otherwise ineligible. But if they are eligible or authorized by the court, they cannot be disqualified.

Each may refuse to accept the other's witnesses,--so R. Meir; but according to the majority this is the case only when proof is brought against them to the effect that they are kinsfolk or otherwise ineligible.

2. If a man say, "I place confidence in my father," or "I place confidence in thy father," or " I place confidence in three herdsmen," 1--R. Meir holds that he may retract; but the majority hold that he cannot retract.

If a man is bound to his neighbour on oath, his neighbour saying to him, "Vow to me by the life of thine head!"--R. Meir holds that he may retract; but the majority hold that he cannot retract.

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V. 1. Either party in a suit may refuse to accept the judges chosen by the opposing party; but the majority hold that no one is empowered to refuse a judge regarded by all as expert.

If a man say, "I place confidence in my father," "I place confidence in thy father," or "I place confidence in three herdsmen," he may retract. 1

If a man is bound to his neighbour on oath, his neighbour saying to him, "Swear to me by thy life " or "by this or these objects held in my hand" he may retract until he take the oath in the presence of the judge,--so R. Meir; but the majority hold that he cannot retract. R. Jehuda said: The oath may not be administered before a single judge. To this it was replied: This is only thine own opinion; if the contending parties accept a single judge they cannot retract. R. Jehuda used also to say: If a man is bound to his neighbour on oath, his neighbour saying to him "Swear to me by thy life" and he have accepted such an oath, he cannot retract. It happened in the case of one who was bound to his neighbour on oath in the court, that he had sworn by a definite object, and his neighbour had accepted the oath.

M.III. 3. These are disqualified (as witnesses or judges): a dice-player, a usurer, pigeon-flyers, and those who trade with the Sabbatic growth. 2 R. Shimeon said: At first only the description gatherers of the Sabbatic growth was used, but since oppressors 3 have grown many, the prohibition is narrowed down to those who trade with the Sabbatic growth. R. Jehuda maintained that

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M.when such is a man's only occupation (he is disqualified), but if he have another occupation he is eligible.

T. V. 2. One who gambles or plays with dice--and it is all one whether he play with blocks of wood or nutshells or pomegranate peel--can never be regarded as reformed until he agree to break up his dice and effect a complete reformation. One who lends money on usury cannot be regarded as reformed until he tear up his account-books and effect a complete reformation. A pigeon-flier--that is to say, one who trains pigeons, and it is all one whether he train pigeons or any other beast or living creature or bird--can never be regarded as reformed until he destroy those things which cause his disqualification and effect a complete reformation. One who trades with the Sabbatic growth--that is to say, one who remains idle the other six years and when the year of release 1 arrives begins to stretch his hands and feet and trade with the fruits of transgression--can never be regarded as reformed until, when the next year of release approaches, he is examined and found to have effected a complete reformation. R. Nehemia says: It must be a reformation in deed and not merely in word. What form does it take? (He must say) "These two hundred denarii have I amassed from the fruits of transgression. Divide them among the poor."

R. Meir called them "gatherers of the Sabbatic growth," while R. Jehuda called them "traders in the Sabbatic growth." Of both sort R. Jehuda said: If they have also another occupation they are disqualified; but if they reform they are eligible. The majority, however, hold that if they have another occupation they are disqualified (as witnesses) in such matters as the hallowing of the month or the intercalation of the year, and in non-capital and

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capital case; but for testimony which a woman is eligible to give, they too are eligible. 1

M. III. 4. These are reckoned as kinsfolk: a brother, paternal or maternal uncle, brother-in-law, father's and mother's brother-in-law, step-son, father-in-law, wife's sister's husband;--these together with their sons, their sons-in-law, and a man's step-son (but not the latter's children). R. Jose said: Such is the Mishnah of R. Akiba 2 but the first Mishnah 2 included uncle, first-cousin, and all eligible to be heirs, 3 and those who at the time were relatives; but relatives who had since become estranged were eligible (as judges or witnesses). R. Jehuda holds that if a man's daughter die and leave children, her husband is still reckoned as a relative.

5. A friend or an enemy (is disqualified). Who is counted as a friend? One's groomsman. And an enemy? A man who from hostility has not spoken with his neighbour for three days. But to this it was replied: Israelites should not for this be suspected.

T. V. 3. A wife's brother-in-law is disqualified, but not a wife's brother-in-law's children. A stepson is disqualified, but not a stepson's children.

4. Kinsfolk may not judge each other, or with each other, or on behalf of each other, or in the presence of each other.

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If a man became possessed of evidence at a time when he was the son-in-law of the accused, though the daughter be since dead; or while he was a trader in the Sabbatic growth, though he be now reformed; or while dumb but be since cured; or while blind but have since received his sight; or while mad but have since become sane; or while a foreigner but have since become a proselyte;--such a man is disqualified. But if he became possessed of the evidence before he was the son-in-law of the accused, and have since become his son-in-law, and afterward the daughter died; or before he traded in the Sabbatic growth, and have since become a trader in the Sabbatic growth, and afterward reformed; or while he was possessed of hearing, and have since become deaf, and afterward recovered; or before being blind, and he again received his sight after being blind; or before he was mad, and after being mad he again became sane;--such a one is eligible. The general rule is, that one who was eligible in the first case, and is at present eligible,--such a one is eligible. If he was ineligible in the first case and is at present ineligible, or if he was ineligible in the first case, but is at present eligible,--such a one is ineligible.

5a. If one were possessed of evidence in writing against the accused, and have since become his son-in-law, he cannot bring forward his handwriting to support his evidence, but others may do so.

If he have received from him a house or field for the payment of a hundred manae, 1 and he have evidence concerning the fact, he cannot bring forward the evidence; for no man may testify on his own behalf.

Among persons disqualified to act as judges or witnesses are also to be included robbers, herdsmen and extortioners, and all suspect concerning property. 2 Their evidence is always invalid.

Footnotes

57:1 The most disreputable of the population.

58:1 The Vienna MS. and the Venice edition (the textus receptus) add: "from the verdict,--so R. Meir; but the majority say that he cannot retract."

58:2 Lev. 25. 1 ff.

58:3 In the matter of taxation and economic pressure.

59:1 Deut. 15. 2.

60:1 According to Rosh ha-Shana 22 a, their evidence is valid only in matters relating to marriage.

60:2 Referring to earlier, and presumably oral, compilations from which R. Jehuda ha-Nasi drew for his final authoritative Mishnah.

60:3 Relatives on the father's side. See B. Bathra 8. 1 ff

61:1 A manê was equivalent to the earlier shekel.

61:2 That is, any one whose honesty has ever been called in question.

Next: The Method of Legal Procedure in Non-Capital Cases