To do to the collusive witness like he colluded: That we were commanded to do to the witnesses that testified false testimony according to what they sought to damage the one they testified against with their testimony — whether with money, with lashes or with death. And even though it is possible [for the witnesses to do this damage] without an act, they are lashed; due to the inclusion from the verse (Deuteronomy 25:1), “and they shall justify the righteous one, etc.,” as it is found in the chapter [entitled] Arba Mitot (Sanhedrin 25a). And about this is it stated (Deuteronomy 19:19), “And they shall do to him like he colluded to do to his brother.” And this is the law of the colluding witnesses mentioned in the Gemara in many places. And the content of collusion is that two witnesses come and contradict the first ones about their testimony — for example, that they say to them, “But how can you testify about thing x? And is it not that on that day that you are saying that story [happened], you were not in the place that you say it happened there, but rather you were with us in a different place?” This is the crux of refutation [of collusive] testimony. And the Torah commanded us to believe the latter witnesses over the first — whether the first were two, or even a hundred or more, as regarding testimony, two is like a hundred, and a hundred is like two.
It is from the roots of the commandment [that it is] to punish any man whose heart became full to testify about a matter that he does not know truthfully and clearly — in that the matter is something that everything that belongs to the creatures, whether monetary or physical, depends upon. And about that which the Torah believed the latter over the first, we do not know a clear reason for it. However one of the sages gave me somewhat of an argument about the thing: As the Torah believes witnesses and there is no doubt that if two fit witnesses testify against three or more people that they killed a soul, we believe them — and even if they contradict the more numerous, since they are witnesses and the others are the parties to the thing. And with colluding witnesses, likewise, since the latter are testifying against the witnesses themselves, to say to them, “You were with us” — which is the central refutation — the first ones [become] parties to the thing and [only] the latter ones are witnesses.
From the laws of the commandment is that which they said (Makkot 5a) that the matter of refutation is upon the witnesses themselves, as we have said — for example that they say to them, “You were with us in place x.” But with the matter of contradiction, we do not believe these over those; and the testimony of all of them is nullified. And what is the content of contradiction? For example, that they testify about the testimony itself: that the first group says, “Thing x happened,” and the latter says, “It did not happen,” or it comes by implication of their words that it did not. And [also] that which they, may their memory be blessed, said (Makkot 3b) that colluding witnesses are not killed, nor do they pay money nor are they lashed until they are both refuted. And [also] that which they, may their memory be blessed, said (Makkot 3b) that colluding witnesses do not need warning, but rather once they are refuted, they are judged; and that witnesses that were first contradicted and, afterwards, refuted — behold these are also judged; as they, may their memory be blessed, said (Bava Kamma 3b), “Contradiction is the beginning of refutation.” And [also] that which they, may their memory be blessed, said (Ketuvot 20a), that we only refute witnesses in front of them, but we contradict witnesses [also] not in front of them. And if they extracted money with their testimony, the court returns the money to its owner, and the witnesses pay according to the amount of money that they thought to make him lose. But with capital cases, it is not like this: For if one is killed based on their [testimony] and they are refuted afterwards, they are not killed — as so does it come in the received tradition (Makkot 5a), “[If] they did not kill, they are killed; if they killed, they are not killed.” And there is somewhat of a reason to give about the matter: [It is] because “God is present in the congregation of judges.” And were it not that the convicted was guilty because of his [other] evil deeds, the judicial procedure would not have been concluded against him. But rather he was fit for this [punishment], and the judgment against this evildoer was orchestrated from the Heavens. And about similar to this is it stated (Proverbs 16:4), “even an evildoer for an evil day.” And since the matter is clarified to our eyes that this man was to die, the Torah did not want that we should kill the witnesses over him. And the analogy about this is one that kills a treifah (someone who is deathly ill) is not killed over him. [And] this one is like that — since we knew in the way that we said that he is guilty in the Heavenly court, [it is considered as if] he had no blood. And the rest of the details of the commandment are elucidated in Tractate Makkot (Chapter 1).
And this commandment is practiced in the Land of Israel at the time that we have an ordained court, since the payments of collusive witnesses are a penalty — and it is well-known that we only judge cases of penalties with an ordained court. And a court fitting to judge cases of penalties that does not “do to the collusive witnesses like what they colluded to do to their brothers” has violated this positive commandment.
לַעֲשׂוֹת לְעֵד זוֹמֵם כַּאֲשֶׁר זָמַם – שֶׁנִּצְטַוִּינוּ לַעֲשׂוֹת לְעֵדִים אֲשֶׁר הֵעִידוּ עֵדוּת שֶׁקֶר, כְּפִי מַה שֶׁבִּקְשׁוּ לְהַזִּיק בְּעֵדוּתָם לַאֲשֶׁר הֵעִידוּ עָלָיו, הֵן בְּמָמוֹן, הֵן בְּמַלְקוּת, הֵן בְּמִיתָה, וְאַף עַל פִּי שֶׁאֶפְשָׁר מִבְּלִי מַעֲשֶׂה, כִּדְאִיתָא פֶּרֶק אַרְבַּע מִיתוֹת (סנהדרין סה, ב) לוֹקִין הֵם מֵרִבּוּיָא דִּקְרָא (דברים כה, א) וְהִצְדִּיקוּ אֶת הַצַּדִּיק וְגוֹ'. וְעַל זֶה נֶאֱמַר (שם יט יט) וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם לַעֲשׂוֹת לְאָחִיו. וְזֶהוּ דִּין עֵדִים זוֹמְמִים הַנִּזְכָּר בַּגְּמָרָא בְּהַרְבֵּה מְקוֹמוֹת. וְעִנְיַן הַהֲזָמָה הוּא, שֶׁיָּבוֹאוּ שְׁנֵי עֵדִים וְיַכְחִישׁוּ הָרִאשׁוֹנִים עַל עֵדוּתָן, כְּגוֹן שֶׁיֹּאמְרוּ לָהֶם, וְאֵיךְ אַתֶּם מְעִידִים עַל דָּבָר פְּלוֹנִי, וַהֲלֹא בְּאוֹתוֹ יוֹם שֶׁאַתֶּם אוֹמְרִים שֶׁהָיָה הַמַּעֲשֶׂה הַהוּא, לֹא הֱיִיתֶם אַתֶּם בְּאוֹתוֹ הַמָּקוֹם שֶׁאַתֶּם אוֹמְרִים שֶׁנַּעֲשָׂה שָׁם, אֲבָל עִמָּנוּ הֱיִיתֶם בְּמָקוֹם אַחֵר? זוֹ הִיא עִקַּר הֲזָמַת הָעֵדוּת, וְהַתּוֹרָה צִוַּתְנוּ לְהַאֲמִין הָעֵדִים הָאַחֲרוֹנִים עַל הָרִאשׁוֹנִים, בֵּין שֶׁהָרִאשׁוֹנִים שְׁנַיִם, אוֹ אֲפִלּוּ מֵאָה אוֹ יוֹתֵר, דִּלְעִנְיַן עֵדוּת תְּרֵי כְּמֵאָה וּמֵאָה כִּתְרֵי.
To do to the collusive witness like he colluded: That we were commanded to do to the witnesses that testified false testimony according to what they sought to damage the one they testified against with their testimony — whether with money, with lashes or with death. And even though it is possible [for the witnesses to do this damage] without an act, they are lashed; due to the inclusion from the verse (Deuteronomy 25:1), “and they shall justify the righteous one, etc.,” as it is found in the chapter [entitled] Arba Mitot (Sanhedrin 25a). And about this is it stated (Deuteronomy 19:19), “And they shall do to him like he colluded to do to his brother.” And this is the law of the colluding witnesses mentioned in the Gemara in many places. And the content of collusion is that two witnesses come and contradict the first ones about their testimony — for example, that they say to them, “But how can you testify about thing x? And is it not that on that day that you are saying that story [happened], you were not in the place that you say it happened there, but rather you were with us in a different place?” This is the crux of refutation [of collusive] testimony. And the Torah commanded us to believe the latter witnesses over the first — whether the first were two, or even a hundred or more, as regarding testimony, two is like a hundred, and a hundred is like two.
מִשָּׁרְשֵׁי הַמִּצְוָה. לְיַסֵּר כָּל אִישׁ אֲשֶׁר מְלָאוֹ לִבּוֹ לְהָעִיד בְּדָבָר שֶׁאֵינוֹ יוֹדֵעַ אוֹתוֹ בֶּאֱמֶת וּבְבֵרוּר, בַּעֲבוּר הֱיוֹת הַדָּבָר עִנְיָן שֶׁכָּל אֲשֶׁר לַבְּרִיּוֹת תָּלוּי עָלָיו, הֵן מָמוֹן, הֵן גּוּף. וּבַאֲשֶׁר תַּאֲמִין הַתּוֹרָה הָאַחֲרוֹנִים עַל הָרִאשׁוֹנִים לֹא יָדַעְנוּ טַעַם בָּרוּר בָּזֶה, אָכֵן הִגִּיד לִי אֶחָד מִן הַחֲכָמִים קְצָת טַעֲנָה בַּדָּבָר, כִּי הַתּוֹרָה תַּאֲמִין עֵדִים, וְאֵין סָפֵק שֶׁאִלּוּ יָעִידוּ שְׁנֵי עֵדִים כְּשֵׁרִים עַל שְׁלֹשָׁה אֲנָשִׁים אוֹ יוֹתֵר, שֶׁהָרְגוּ אֶת הַנֶּפֶשׁ, שֶׁנֶּאֱמָנִים הַשְּׁנַיִם הַמְּעִידִים וַאֲפִילּוּ יַכְחִישׁוּם הַמְרֻבִּים, מִפְּנֵי שֶׁאֵלּוּ הֵם עֵדִים, וְהָאֲחֵרִים בַּעֲלֵי דָּבָר, וּבְעֵדִים זוֹמְמִין כְּמוֹ כֵן אַחַר שֶׁהָאַחֲרוֹנִים מְעִידִים עַל הָעֵדִים עַצְמָן לוֹמַר לָהֶם עִמָּנוּ הֱיִיתֶם שֶׁזֶּהוּ עִקַּר הַהֲזָמָה, חָזְרוּ הָרִאשׁוֹנִים בַּעֲלֵי דָּבָר וְהָאַחֲרוֹנִים עֵדִים.
It is from the roots of the commandment [that it is] to punish any man whose heart became full to testify about a matter that he does not know truthfully and clearly — in that the matter is something that everything that belongs to the creatures, whether monetary or physical, depends upon. And about that which the Torah believed the latter over the first, we do not know a clear reason for it. However one of the sages gave me somewhat of an argument about the thing: As the Torah believes witnesses and there is no doubt that if two fit witnesses testify against three or more people that they killed a soul, we believe them — and even if they contradict the more numerous, since they are witnesses and the others are the parties to the thing. And with colluding witnesses, likewise, since the latter are testifying against the witnesses themselves, to say to them, “You were with us” — which is the central refutation — the first ones [become] parties to the thing and [only] the latter ones are witnesses.
מִדִּינֵי הַמִּצְוָה. מָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (מכות ה, א), שֶׁעִנְיַן הַהֲזָמָה, הִיא בָּעֵדִים בְּעַצְמָן כְּמוֹ שֶׁאָמַרְנוּ, כְּגוֹן שֶׁיֹּאמְרוּ לָהֶם עִמָּנוּ הֱיִיתֶם בְּמָקוֹם פְּלוֹנִי, אֲבָל בְּעִנְיַן הַכְחָשָׁה אֵין מַאֲמִינִין אֵלּוּ עַל אֵלּוּ, וּתְהֵא עֵדוּת כֻּלָּם בְּטֵלָה. וּמַהוּ עִנְיַן הַהַכְחָשָׁה? כְּגוֹן שֶׁמְּעִידִין בָּעֵדוּת בְּעַצְמָהּ, שֶׁהַכַּת הָרִאשׁוֹנָה אוֹמֶרֶת הָיָה דָּבָר פְּלוֹנִי, וְהָאַחֲרוֹנָה אוֹמֶרֶת לֹא הָיָה, אוֹ שֶׁיָּבֹא מִכְּלַל דִּבְרֵיהֶם שֶׁלֹּא הָיָה. וּמָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (שם ג ב) שֶׁאֵין עֵדִים זוֹמְמִין נֶהֱרָגִין וְלֹא מְשַׁלְּמִין מָמוֹן וְלֹא לוֹקִין עַד שֶׁיּוּזְמוּ שְׁנֵיהֶם. וּמָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (שם), שֶׁעֵדִים זוֹמְמִין אֵין צְרִיכִים הַתְרָאָה, אֶלָּא מִכֵּיוָן שֶׁהוּזְמוּ נִדּוֹנִין, וְעֵדִים שֶׁהֻכְחֲשׁוּ תְּחִלָּה וּלְבַסּוֹף הוּזְמוּ הֲרֵי אֵלּוּ גַּם כֵּן נִדּוֹנִין, שֶׁכֵּן אָמְרוּ זִכְרוֹנָם לִבְרָכָה (ב"ק ג ב) הַכְחָשָׁה תְּחִלַּת הֲזָמָה הִיא. וּמָה שֶׁאָמְרוּ (כתובות כ, א), שֶׁאֵין מְזִמִּין הָעֵדִים, אֶלָּא בִּפְנֵיהֶם, אֲבָל מַכְחִישִׁין אוֹתָם שֶׁלֹּא בִּפְנֵיהֶם. וְאִם הוֹצִיאוּ בְּעֵדוּתָם מָמוֹן מַחְזִירִין בֵּית דִּין הַמָּמוֹן לִבְעָלָיו, וּמְשַׁלְּמִין הָעֵדִים כְּסַךְ הַמָּמוֹן שֶׁחָשְׁבוּ לְהַפְסִידוֹ. אֲבָל בְּדִינֵי נְפָשׁוֹת אֵינוֹ כֵּן, שֶׁאִם נֶהֱרַג אֶחָד עַל פִּיהֶם וְהוּזְמוּ אַחַר כֵּן, אֵינָם נֶהֱרָגִים, שֶׁכֵּן בָּאָה הַקַּבָּלָה (מכות ה, א) לֹא הָרְגוּ נֶהֱרָגִין, הָרְגוּ אֵינָם נֶהֱרָגִין. וְיֵשׁ לוֹמַר קְצָת טַעַם לַדָּבָר, כִּי אֱלֹהִים נִצָּב בַּעֲדַת הַדַּיָּנִין, וְלוּלֵי שֶׁנִּתְחַיֵּב הַנִּדּוֹן בְּמַעֲשָׂיו הָרָעִים לֹא נִגְמַר עָלָיו מַעֲשֵׂה הַמִּשְׁפָּט, אֲבָל וַדַּאי רָאוּי הָיָה לְכָךְ, וְגִלְגְּלוּ עָלָיו דִּינוֹ מִן הַשָּׁמַיִם עַל יְדֵי זֶה הָרָשָׁע, וְעַל כַּיּוֹצֵא בָּזֶה נֶאֱמַר (משלי טז, ד) וְגַם רָשָׁע לְיוֹם רָעָה. וְאַחַר שֶׁנִּתְגַּלָּה הַדָּבָר לְעֵינֵינוּ, כִּי זֶה הָאִישׁ בֶּן מָוֶת הָיָה לֹא רָצְתָה הַתּוֹרָה שֶׁנַּהֲרֹג הָעֵדִים עָלָיו, וְהַמָּשָׁל בָּזֶה, מִי שֶׁהָרַג אֶת הַטְּרֵפָה שֶׁאֵינוֹ נֶהֱרָג עָלָיו, גַּם זֶה כְּמוֹ כֵן, מִכֵּיוָן שֶׁיָּדַעְנוּ עַל הַדֶּרֶךְ שֶׁאָמַרְנוּ, שֶׁנִּתְחַיֵּב בְּבֵית דִּין שֶׁל מַעְלָה, אֵין לוֹ דָּמִים. וְיֶתֶר פְּרָטֵי הַמִּצְוָה מְבֹאָרִים בְּמַסֶּכֶת מַכּוֹת (פ"א).
From the laws of the commandment is that which they said (Makkot 5a) that the matter of refutation is upon the witnesses themselves, as we have said — for example that they say to them, “You were with us in place x.” But with the matter of contradiction, we do not believe these over those; and the testimony of all of them is nullified. And what is the content of contradiction? For example, that they testify about the testimony itself: that the first group says, “Thing x happened,” and the latter says, “It did not happen,” or it comes by implication of their words that it did not. And [also] that which they, may their memory be blessed, said (Makkot 3b) that colluding witnesses are not killed, nor do they pay money nor are they lashed until they are both refuted. And [also] that which they, may their memory be blessed, said (Makkot 3b) that colluding witnesses do not need warning, but rather once they are refuted, they are judged; and that witnesses that were first contradicted and, afterwards, refuted — behold these are also judged; as they, may their memory be blessed, said (Bava Kamma 3b), “Contradiction is the beginning of refutation.” And [also] that which they, may their memory be blessed, said (Ketuvot 20a), that we only refute witnesses in front of them, but we contradict witnesses [also] not in front of them. And if they extracted money with their testimony, the court returns the money to its owner, and the witnesses pay according to the amount of money that they thought to make him lose. But with capital cases, it is not like this: For if one is killed based on their [testimony] and they are refuted afterwards, they are not killed — as so does it come in the received tradition (Makkot 5a), “[If] they did not kill, they are killed; if they killed, they are not killed.” And there is somewhat of a reason to give about the matter: [It is] because “God is present in the congregation of judges.” And were it not that the convicted was guilty because of his [other] evil deeds, the judicial procedure would not have been concluded against him. But rather he was fit for this [punishment], and the judgment against this evildoer was orchestrated from the Heavens. And about similar to this is it stated (Proverbs 16:4), “even an evildoer for an evil day.” And since the matter is clarified to our eyes that this man was to die, the Torah did not want that we should kill the witnesses over him. And the analogy about this is one that kills a treifah (someone who is deathly ill) is not killed over him. [And] this one is like that — since we knew in the way that we said that he is guilty in the Heavenly court, [it is considered as if] he had no blood. And the rest of the details of the commandment are elucidated in Tractate Makkot (Chapter 1).
וְנוֹהֶגֶת מִצְוָה זוֹ בְּאֶרֶץ יִשְׂרָאֵל, בִּזְמַן שֶׁיֵּשׁ לָנוּ בֵּית דִּין סָמוּךְ, לְפִי שֶׁתַּשְׁלוּמִין שֶׁל עֵדִים זוֹמְמִין קְנָס הוּא, וְיָדוּעַ שֶׁאֵין דָּנִין דִּינֵי קְנָסוֹת, אֶלָּא בְּבֵית דִּין סָמוּךְ. וּבֵית דִּין הָרָאוּי לָדוּן דִּינֵי קְנָסוֹת שֶׁלֹּא עָשָׂה לְעֵדִים זוֹמְמִים כַּאֲשֶׁר זָמְמוּ לַעֲשׂוֹת לַאֲחִיהֶם, בִּטֵּל עֲשֵׂה זֶה.
And this commandment is practiced in the Land of Israel at the time that we have an ordained court, since the payments of collusive witnesses are a penalty — and it is well-known that we only judge cases of penalties with an ordained court. And a court fitting to judge cases of penalties that does not “do to the collusive witnesses like what they colluded to do to their brothers” has violated this positive commandment.