Some exception to the rule TB Makkot 2

With daf TB Makkot 2 we begin a brand new massekhet. This massekhet should be looked upon as an addendum to massekhet Sanhedrin because it deals with topics related to massekhet Sanhedrin ‘eidim zommamin, exiled to the city of refuge, and the punishment of lashes.

The first chapter deals with ‘eidim zommamin  (עֵדִים זוֹמְמִין) scheming or conspiratorially witnesses. The classic case of ‘eidim zommamin is one set of witnesses’ testimony is undermined by another set of witnesses who testify that the initial set was with them at the time of the purported event in a different location. With some exceptions, the punishment for ‘eidim zommamin is the punishment they would have brought about for the plaintiff had the court accepted their testimony. All this is based on the verses “If someone appears against another party to testify maliciously and gives incriminating yet false testimony, the two parties to the dispute shall appear before YHVH, before the priests or magistrates in authority at the time, and the magistrates shall make a thorough investigation. If the one who testified is a false witness, having testified falsely against a fellow Israelite, you shall do to the one as the one schemed to do to the other. Thus you will sweep out evil from your midst;” (Deuteronomy: 19: 16-19)

The first Mishna provides us with two exceptions to the rule. “How are witnesses rendered conspiring witnesses? This applies in a case where two witnesses came before the court and said: We testify with regard to so-and-so, who is a priest, that he is the son of a divorced woman or the son of a ḥalutza, a yevama who performed the rite of ḥalitza to free herself from the levirate bond. Those testimonies render him a ḥalal (see Leviticus 21:6–7), one disqualified from the priesthood due to flawed lineage. If a second set of witnesses testifies in court and renders the first set conspiring witnesses, one does not say with regard to each of the conspiring witnesses: This witness shall be rendered the son of a divorced woman or the son of a ḥalutza in his stead. Rather, he receives forty lashes as punishment for his false testimony.”

“Likewise, in a case where two witnesses came before the court and said: We testify with regard to so-and-so that he is liable to be exiled to a city of refuge for unwittingly killing another (see Numbers 35:11), and a second set of witnesses testifies in court and renders the first set conspiring witnesses, one does not say with regard to each of the conspiring witnesses: This witness shall be exiled in his stead. Rather, he receives forty lashes.” (Sefaria.org translation) It is impossible to reciprocate the ‘eidim zommamin with the punishment they want to inflict upon the defendant; consequently, they receive lashes.

Tosefot ד"ה מעידים אנו asks a very good question. There is a rule for an order for a witnesses to give testimony they have to be eligible for hazama (הזמה), scheming conspiratorial testimony. עֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ, וְכׇל עֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ לֹא שְׁמָהּ עֵדוּת.- any testimony that you cannot potentially render conspiratory testimony is not categorized as testimony. This rule makes sense. Now witnesses have skin in the game knowing that they could be punished with the same punishment they are trying to inflict upon the defendant. There are more likely to tell the truth. Based on this understanding you would think that the testimony concerning a divorced woman or exiled to the city of refuge, would be ineligible testimony in the court. Why does the court meet out the punishment of lashes?

Tosefot provides two answers. First answer, these scheming witnesses need to be punished and the lashes are just the replacement for the punishment they tried to inflict upon the defendant. The second answer, the two cases in the Mishna are just the exception to the rule and you don’t need hazama.