Eighteen Treatises from the Mishna, by D. A. Sola and M. J. Raphall, [1843], at sacred-texts.com
Eighteen Treatises from the Mishna, by D. A. Sola and M. J. Raphall, [1843], at sacred-texts.com
§ 1. When a woman, whose husband and rival had gone to a distant country, is acquainted that her husband was dead, she may neither marry [strangers] nor her brother-in-law by Yeboom until she has ascertained whether that rival was left pregnant, or not. But if she had a mother-in-law [abroad], she need not apprehend, 1 lest that mother-in-law might have brought forth a son, 2 but if her mother-in-law was pregnant at the time of her departure, she is bound to notice it. 3 But R. José declares it unnecessary.
§ 2. When both wives of two brothers say severally, "My husband is dead," neither may re-marry, because it is to be apprehended in respect to each of them, that the husband of the other may [possibly] be yet alive. If one has witnesses, and not the other, she who has witnesses may not re-marry, 4 but the other wife may. 5 If one has children, and not the other, she who has children may marry again, but not sire who has no children. When these women had married
two brothers by Yeboom, and these husbands also died, they may not re-marry, but R. Eleazar saith, "Having once been permitted to marry their brothers-in-law, this permission [to re-marry] extends to all men."
§ 3. The testimony of a witness [as to the identity of an alleged deceased married man], is only then valid, when he testifies that he recognised the physiognomy with the nose 6 of the deceased, although the witness mentioned other particular signs in the person or dress [of the deceased]. Testimony can only be received of one who had seen the deceased after he had actually given up the ghost, and is not admissible when the witness only saw him mortally wounded, or hanging, or that he was being devoured by a wild animal. The identity of the person can only be vouched for, when the witness saw him within three days after his decease, but R. Jehudah ben Baba observes, "This is not the same for all people, places, or seasons." 7
§ 4. If a man fell into the water, whether that was limited in extent, 8 or not, 9 his wife may not marry again. 10 R. Meir saith, "It happened once that a man fell into a large well, and after three days came up again alive." But R. Jose relates [to the contrary effect], that it once happened that a blind man went down in a cave to bathe, and his guide followed him, and when they had waited so long for their return till their death appeared certain, their wives were permitted to re-marry. It also happened in Asya [Asia Minor] that a man was fastened to a chain and cast into the sea, and on withdrawing the chain, his leg only was found; the sages then decided, that when the leg [of a person] is found separated from the body above the knee, his wife may marry again, 11 but not if the leg was found separated below the knee.
§ 5. Even if [a witness] had his information from women only, who, conversing with each other, said, "A.B. is dead," his evidence
is valid. R. Jehudah says, "Even when he heard children say to each other, 'We are going [home] from the burial and lamentation for A.B.'" It is immaterial whether the witness intended by that declaration to proffer it as testimony, or whether he did it without such intention. R. Jehudah ben Baba says, "An Israelite may tender his evidence even intentionally, but the evidence of a heathen is void when it is proved that he has some private purpose, or intention to serve [by his evidence.]"
§ 6. Evidence [of the death of a married man] is admissible even when the witness saw him only by candle or moonlight. A woman maybe permitted to re-marry, even if a voice in the air or echo 12 had only been heard, declaring that event. It once happened, that a man, on the top of a mountain, called out, "A.B., son of C.D., of the place E. is dead." They ascended the mountain without finding the person from whom the voice had proceeded, yet the wife [of A.B.] was permitted to marry again. Another case occurred in Tsal-mon,—a man exclaimed, "N. N., son of N. N., of the place N., has been bitten by a venomous serpent, and must die." When they came to the wounded man, [his features] could no longer be recognized, yet his wife was permitted to marry again.
§ 7. R. Akivah says, "When I went down to Neardeah to intercalate a month in the year, I met Nehemiah of Beth-delee, who told me, 'I heard that with the exception of R. Jehudah ben Baba, permission is refused in the Holy Land to a woman to re-marry upon the evidence of a single witness.' On my answering in the affirmative, he said, 'Tell them in my name you are aware that the tranquillity of this country is disturbed by armed hosts, [and therefore I cannot go to tender my personal evidence], but I have it in tradition from the elder Rabbon Gamaliel, that a woman may re-marry on the evidence of a single witness, or of that of a woman or slave.' When I returned and informed [the younger] Rabbon Gamaliel of this, he rejoiced and said, 'We have found a colleague for R. Jehudah ben Baba, [who agrees with him in this].' That circumstance reminded Rabbon Gamaliel [the younger], that once, when several men were killed at Tel Arzah, Rabbon Gamaliel, the elder, permitted their wives to re-marry on the evidence of a single witness, and to receive as valid evidence the testimony of a witness, whose knowledge of the fact is only derived from
the deposition he heard another witness make in this case, also, [to grant this permission to re-marry] on the evidence of a slave-woman, or female slave." R. Eleazar and R. Joshua are, however, of opinion, that the mentioned permission ought not to be granted to a woman to re-marry upon the evidence of a single witness. R. Akivah saith, "Neither upon that of a woman, a slave, a bond-woman, or of near relatives." But the sages said unto him, "It happened once, that when a family of Levites went to Zoar, the city of Palms, one [of the said Levites] fell ill on the road, and they brought him to an inn. When they returned, they asked the hostess, 'Where is our companion?'—She answered, 'He died, and I have had him buried': permission was thereupon granted the wife of the deceased to re-marry." They [the sages] said [moreover] to him, "Shall not the evidence of a woman of sacerdotal race be equally admissible as that of the [heathen] hostess of an inn?" but he replied, "The reason why credence was accorded to this hostess was, because she produced to them the staff of the deceased, his travelling-bag, and the roll of the law he carried with him."
237:1 To re-marry.
237:2 In which case she became subject to Yeboom, and could not marry any one else till she had performed Chalitzah to him.
237:3 That is, she must wait for positive information whether her mother-in-law brought forth a son before she can re-marry, or is bound to wait for Chalitzah or Yeboom.
237:4 Because the rule is that the evidence of one sister-in-law is not available in this matter to the other.
237:5 Because her own evidence suffices to prove the death of her own husband, and that of the brother-in-law is proved by the evidence of the witnesses.
238:6 Namely, that the nose had not been cut off, or was so mutilated, as to render the person irrecognizable.
238:7 Because the period and progress of putrefaction, which renders the features irrecognizable, varies greatly in respect to the habit of body of the subject, the heat or coldness of the climate, and of the season of the year.
238:8 Under this description arc to be understood ditches or ponds, or other sheets of water, of which all the sides or banks may he seen.
238:9 Such as the sea, large rivers, &c.
238:10 For he may, perhaps, have been saved, although he did not return to his wife.
238:11 For it is supposed, that a person so circumstanced cannot possibly survive.
239:12 In the original בת קול "a daughter," or production of the voice, i.e. an echo. In the present case it is supposed that the person from whom the voice proceeded had gone away after he made the announcement.