Talmud Bavli
Talmud Bavli

Responsa for Sanhedrin 64:18

תניא כוותיה דאביי ורבא רבי אומר (במדבר ה, יט) אם לא שכב איש אותך ואם לא שטית וגו'

to the chamber of hewn stones.<span class="x" onmousemove="('comment',' [H], the chamber of hewn stones in the inner court of the Temple which was the home of the Great Sanhedrin. [On the refutation of Schurer's view that it was the chamber 'close to the Xystus' on the western border of the Temple Mount, v. Krauss, J.E., XII, 576.] ');"><sup>33</sup></span> CIVIL SUITS MAY BE OPENED EITHER FOR ACQUITTAL etc. What is said?<span class="x" onmousemove="('comment',' In opening the case for the defence. ');"><sup>34</sup></span> Rab Judah said: We speak thus to them:<span class="x" onmousemove="('comment',' Sc. the witnesses for prosecution. ');"><sup>35</sup></span> Who can tell that it is as ye say?<span class="x" onmousemove="('comment',' I.e., perhaps your evidence is false ');"><sup>36</sup></span> 'Ulla objected: But do we not thereby shut their lip?<span class="x" onmousemove="('comment',' I.e., discourage them from giving further evidence. ');"><sup>37</sup></span> — Then let them be shut! Has it not been taught: R. Simeon b. Eliezer said: The witnesses are moved from place to place,<span class="x" onmousemove="('comment',' Rashi: When they came to give evidence, the Court would decline to hear it in that place, but appoint another and at the second place, they found some reason for moving to a third and so on. ');"><sup>38</sup></span> that they<span class="x" onmousemove="('comment',' Lit., 'their minds'. ');"><sup>39</sup></span> may become confused, and withdraw [their evidence].<span class="x" onmousemove="('comment',' Tosef. Sanh. IX. ');"><sup>40</sup></span> What comparison is there! In that case, they are automatically repelled, whereas here, we repel them by our own act! But, said 'Ulla: We say thus: Have you [sc. the defendant] any witnesses to refute them?<span class="x" onmousemove="('comment',' The accusing witnesses, and prove them Zomemim.. ');"><sup>41</sup></span> Rabbah demurred: Can we then open the defence of one in a manner which involves the condemnation of another?<span class="x" onmousemove="('comment',' For in a capital charge, witnesses proved Zomemim are liable to death. ');"><sup>42</sup></span> — But does this really involve his condemnation? Have we not learnt: Witnesses declared <i>Zomemim</i> are not executed unless the verdict has [already] been given!<span class="x" onmousemove="('comment',' And unless before it was carried out, they had been proved Zomemim. Consequently, if the accused is invited to produce witnesses to refute the other at this early stage of the proceedings, no question of condemnation arises. ');"><sup>43</sup></span> — I mean this: Should the defendant remain silent until the verdict is given, and then produce witnesses and refute the others, it involves their condemnation?<span class="x" onmousemove="('comment',' Hence at the very outset, he must not be invited to prove the accusing witnesses Zomemim. ');"><sup>44</sup></span> — Therefore Rabbah said: We say to him: Have you any witnesses to contradict them?<span class="x" onmousemove="('comment',' I.e., to prove the former evidence false, but not by means of shewing that the witnesses are Zomemim. (V. Glos. and p. 36, n. 3.) ');"><sup>45</sup></span> R. Kahana said: [We open the defence by saying,] From your words it appears that so and so is not guilty.<span class="x" onmousemove="('comment',' The judges start by pointing out the weak features of the prosecution, e.g., even if certain statements of the prosecution are proved true, they do not shew the guilt of the accused. ');"><sup>46</sup></span> Abaye and Raba both say: We say to him: If you did not commit the murder, have no fear. R. Ashi says: [We begin thus:] Whoever knows anything in his [sc. the accused's] favour, let him come forward and state it. It has been taught in agreement with Abaye and Raba: Rabbi said, If no man have lain with thee and if thou hast not gone aside to uncleanness, etc.;<span class="x" onmousemove="('comment',' Num. V, 19. ');"><sup>47</sup></span>

Teshuvot Maharam

Q. Complying with A's request, the ruler of town T gave A the authority to admit as settlers only those persons of whom A would approve. A claims that B asked him for permission to remain in T for one year telling him that he had settling rights in another place, thus admitting that he possessed no settling-rights in T. B claims that he does possess such rights in T, that his father lived there before him, and denies having asked B for permission to stay there. Should both, B and A, be permitted to stay in T, it might lead to grave consequences, even to the spilling of blood, since B's conduct is known to be corrupt. Rabbi Moses asked what course he should take with respect to their claims.
A. If A produces witnesses to the effect that B asked permission to remain in T for a year, B will have to leave the town, since by his asking for permission he admitted that he either possessed no settling rights there, or had foregone any rights he might have had. If A can produce no such witnesses, B has a right to dwell in T. However, because of B's wicked conduct, you, Rabbi Moses, should deprive B of his settling rights in T and require A to pay adequate compensation to B. I have often seen communities deprive one of their members of his settling-rights because of misconduct; your court that has the right to confiscate a person's money, surely has the right to deprive one of his settling-rights. You should force, therefore, A and B to leave the case completely in your hands to be decided either by arbitration or according to strictly legal requirements, and then you will be able to decide as you see fit.
R. Meir adds:
Your opinion that B lost his settling-rights because of the legal principle "the law of the land prevails" is untenable. The ruler of T gave A the authority to pass on new settlers, but he gave A no authority to dislodge old residents. Had the ruler of T granted A the authority even to dislodge old residents, the validity of such a grant would depend on the reasons that prompted the ruler to grant such authority. If A asked the ruler for such authority, then A has no right to exercise his authority since by his request he directly injured B's interests. But, if the ruler of T, on his own accord, said that he does not want any Jew to live in T unless he receive A's permission, then A may dislodge B because of the legal principle: "The law of the land prevails".
The decision of R. Isaac (b. Samuel, the Tosafist) in the case of the Jews who fled from their town and whose real estate the ruler of the town confiscated and, then, sold to other Jews, has nothing to do with our decision. In this latter case, R. Isaac rightly decided that the purchasers must return the property to the original owners (as compensation, the purchasers were entitled to the amount the original owners would have spent to regain their property) for the ruler had no right to confiscate real property that belonged to the Jews for generations. Such an act on the part of the ruler is not considered "law of the land" but is rather outright robbery, and, therefore, illegal. In our case, however, the ruler of T is the owner of T and has a right to admit anyone into his town, and to keep out of it anybody he wants to keep out. We cannot claim for B's benefit that his father bought permanent settling rights from the ruler of T and stipulated that he or his descendants could never be dislodged from T, for such transactions were very rare, even though such a stipulation if made would be binding and would render the act of the ruler dislodging B an illegal act.
The decision arrived at in the Talmud (B.B. 54b) accepting as binding the Persian law that if the owner of a field defaults in the taxes for that field, anyone who pays the taxes becomes owner of the field, also, has nothing to do with our case; for taxes on real property accumulate even when the owners are away, while Jews are not required to pay taxes to their overlord, unless they actually live in the domain of these overlords. For Jews are not subjugated to their overlords as the Gentiles are, in the sense that they have to pay taxes to a particular overlord even when they do not live in his domain. The status of the Jew, in this land, is that of a free land owner who lost his land but did not lose his personal liberty. This definition of the status of the Jews is followed by the government in its customary relations with the Jews.
SOURCES: Cr. 6; Pr. 101, 1001; L. 313; Mord. B. B. 559; Mordecai Hagadol, p. 253b. Cf. Agudah, B. K. 144; ibid. B. B. 74; Maharil, Responsa 62; ibid. 77; Terumat Hadeshen 351.
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Teshuvot Maharam

Q. Complying with A's request, the ruler of town T gave A the authority to admit as settlers only those persons of whom A would approve. A claims that B asked him for permission to remain in T for one year telling him that he had settling rights in another place, thus admitting that he possessed no settling-rights in T. B claims that he does possess such rights in T, that his father lived there before him, and denies having asked B for permission to stay there. Should both, B and A, be permitted to stay in T, it might lead to grave consequences, even to the spilling of blood, since B's conduct is known to be corrupt. Rabbi Moses asked what course he should take with respect to their claims.
A. If A produces witnesses to the effect that B asked permission to remain in T for a year, B will have to leave the town, since by his asking for permission he admitted that he either possessed no settling rights there, or had foregone any rights he might have had. If A can produce no such witnesses, B has a right to dwell in T. However, because of B's wicked conduct, you, Rabbi Moses, should deprive B of his settling rights in T and require A to pay adequate compensation to B. I have often seen communities deprive one of their members of his settling-rights because of misconduct; your court that has the right to confiscate a person's money, surely has the right to deprive one of his settling-rights. You should force, therefore, A and B to leave the case completely in your hands to be decided either by arbitration or according to strictly legal requirements, and then you will be able to decide as you see fit.
R. Meir adds:
Your opinion that B lost his settling-rights because of the legal principle "the law of the land prevails" is untenable. The ruler of T gave A the authority to pass on new settlers, but he gave A no authority to dislodge old residents. Had the ruler of T granted A the authority even to dislodge old residents, the validity of such a grant would depend on the reasons that prompted the ruler to grant such authority. If A asked the ruler for such authority, then A has no right to exercise his authority since by his request he directly injured B's interests. But, if the ruler of T, on his own accord, said that he does not want any Jew to live in T unless he receive A's permission, then A may dislodge B because of the legal principle: "The law of the land prevails".
The decision of R. Isaac (b. Samuel, the Tosafist) in the case of the Jews who fled from their town and whose real estate the ruler of the town confiscated and, then, sold to other Jews, has nothing to do with our decision. In this latter case, R. Isaac rightly decided that the purchasers must return the property to the original owners (as compensation, the purchasers were entitled to the amount the original owners would have spent to regain their property) for the ruler had no right to confiscate real property that belonged to the Jews for generations. Such an act on the part of the ruler is not considered "law of the land" but is rather outright robbery, and, therefore, illegal. In our case, however, the ruler of T is the owner of T and has a right to admit anyone into his town, and to keep out of it anybody he wants to keep out. We cannot claim for B's benefit that his father bought permanent settling rights from the ruler of T and stipulated that he or his descendants could never be dislodged from T, for such transactions were very rare, even though such a stipulation if made would be binding and would render the act of the ruler dislodging B an illegal act.
The decision arrived at in the Talmud (B.B. 54b) accepting as binding the Persian law that if the owner of a field defaults in the taxes for that field, anyone who pays the taxes becomes owner of the field, also, has nothing to do with our case; for taxes on real property accumulate even when the owners are away, while Jews are not required to pay taxes to their overlord, unless they actually live in the domain of these overlords. For Jews are not subjugated to their overlords as the Gentiles are, in the sense that they have to pay taxes to a particular overlord even when they do not live in his domain. The status of the Jew, in this land, is that of a free land owner who lost his land but did not lose his personal liberty. This definition of the status of the Jews is followed by the government in its customary relations with the Jews.
SOURCES: Cr. 6; Pr. 101, 1001; L. 313; Mord. B. B. 559; Mordecai Hagadol, p. 253b. Cf. Agudah, B. K. 144; ibid. B. B. 74; Maharil, Responsa 62; ibid. 77; Terumat Hadeshen 351.
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