Page:Jewish Encyclopedia Volume 1.pdf/442

394 Alibi Alienation

THE .JEWISH ENXYCLOPEDIA

Pharisjiic sjivrcs poinlcil to the wonlsof Scripture, "as [plotted] to do"; not "as he did." However, any proeedure a<:ainst the jilottinj; witnesses is to take jilaic only after tlic defendant has lie hail tlumirlit

been condemned;

which rule

is

drawn from

the

words of Seripturc, ".soul for soul." the defendant being deemed dead when lie is condemned. In case the accused has been nctially put to death upon false testimony, the plotters can not be punished; but Avhen the judsrinent is only for stripes, or for money, or property, the execuPunishtion of the judgment does not bar a prosecution of the plotters (Maimonment of Plotting ides. "Hilkot 'Edut." xx. 2). .Still, in Witnesses, all such cases the convicted jilotters arc rendered infamous, and can never be witnesses thereafter (ib. 1). It does not follow, however, that witnesses proving the absence of the witnesses for the prosecution from the li>r>i>i i» quo should not be heard at the trial, in a manner similar to otiier witnesses tor the defense'. The punishment to be iiillicted upon plotting witnesses when the defendant is condemned to death is di.stinct enough; but when he is condemned to exile in one of the cities of refuge for involuntary manslaughter, it does not suffice to send the false witnesses to the city of refuge; they must on the contrary be punished with stripes, on the ground that every ofTender against "thou slialt not" (negative commands) is thus punislied. unless a different punishment is pronounced and is practicable. An analogous case occurs where witnesses denounce a man of the priestly line as being the son of a divorced woman, which woiild render him nntit for In this case there can be no the priestly fvmction. retaliation in kind, and the witnesses must be llosiged <Mak. i. 11 Again, if the false witnesses testify that the defendant's ox has killed a human bi'ing. or that some one is a Jewish bondman, or has by theft incurred the penalty of being sold into bondage they are flogged; such is the tradition (Mak. Indemnity. 2i). The words of Scripture (I)eut. xix. 21 ). "eye for eye. tooth for tooth. hand for hand, foot for foot," ofTer no dilliculty for as this law was in other cases carried out by the award of a money-compensation, the judgment rendered on the testimony of the plotting witnesses for the I0S.S of an eye. a tooth, a hand, or a foot, would be In case the false a judgment for money simply. witnesses are condemiiid to make good in money the amount of an unjust judgment, they are not punished with stripes; the rule being that " those who pay do not suiter stripes." The plotting witnesses pay between them only once the sum which the parly against whom they testified would have lost by their falsehood (Mishnah Mak. i. ;i. Gem. na). In some civil cases it is not so plain how much in-

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jury would result from an unjiist judgment; and here it seems that the sages felt the necessity for a calculus of probabilities. The Mishnah (5Iak. i. li formulates these cases (of witnesses found guilty of "plotting"); "We testify against N. X. that he has divorced his wife and has not paid her her jointure (ketuliah). But [it is objected], will he not some day have to [Answer;] The judges pay her that jointure? should estimate how much a man is willing to pay of the given amount in acquittance of a jointure (inasmuch as it is jiayablc only when the wife is widowed or divorced; while if she dies before the husband, no claim exists, since he is her heir). Or; testify against X. X.. that he owes A. a thousand zuz [§160] payable in thirty days (while in

We

394

fact he owes him his sum payable in ten years). The judges shoidd estimate how much a man will give to retain the moniy in his hand for ten years nithcr I

than for thirty days."

Such uestions are often answered in modem times by life tables, dower tables. an<I, generally speaking, by the calcilation of compound interest; but the Hebrew judges of early days had neither the statistical nor the matheniatical elements on which to ba.se their calculations. They had to guess as best they could. E. X. D.

ALIENATION AND ACftUISITION



Tlic

properly of another Alienaliim— is. in Konmn and English law, the general term under which the change of title by gift. Siile. or barter is treated. The rabbinical law looks at the transfer of properly from the standpoint of the new. nither than of the old, owner; not from the view-point of him who alienates or jiarts with a thing, but of him who acquires ownership in it. The distinctions of the Mishnah and the discussions of the Talmud apply to /ciin/iin (Acquisition). Acquisition is brought about in different ways, according to the nature of the thing to be acquired a slave, land, a commodity, or a claim. As act of causing a

—

lliiiig

in hecnnic llir

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the old owner's title ceases at the sjime moment that the new owner's title liegins. the Talmudic law of Acquisition covers the same ground as that of Alienation in the jurisprudence of more modern times. The leading maxims on Acquisition are given by the Mishnah in the first chapter of the treatise " Kiddushin " (Hetrothals). which, beginning with the modes in which the riglitto a wife may Iieaeeinired. goes onto show how other rights areacciuired. fore.xanii>le. to a.Jewish servant. a C'anaanitish servant, aslave, land, etc. and then how titli' is acquired in domestic animals, and other chattels (Kid. iv. 1). For the law touching commodities, and more especially for different kinds of currency, Haba Mezi'a, iv. 1-2, must be consulted. Setting aside the cases of the Hebrew bondman and boniiwoman. who can not be transferred to another m;ister, and omitting also the means by which the "('anaanil<> bondman" may obtain his freedom, the following geninil rules are given; boniiman is iicquired by the payment of money, by deed in writing (n/n'tur). or by taking pos.session (linznknh) (Kid. i. ;!). Animals are Modes ac(iuired according to their nature, by of Acquisi- delivery to the purchaser, or by his removing or lifting them. The term tion.

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A

most commonly used is menliiktih moving); and this is elsewhere applied to movables (('*. 4). Things of value "tiound by

(pulling, oilier

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debt " iiihiinii/iit) that is, land or things allached to the soil and slaves are acquired by payment of money, by a written deed, or by taking possession (ih. Other things. ?'.<.. movables, are in themselves 5). acquired only by bodily removal; but they may be made an incident or accessory to land or immovables, and will iheii ]iass with these when tint land or immovable thing is acquired as above (///. As a general rule, in the case of barter, when one thing of value becomes the price of another, the Acquisition of one immediately changes title in the other (/'/*. 6). But (see AcceI'TANCE) mere words of assent, though spoken by seller and buyer, or by donor and donee, in the presence of witnesses, have in themselves no force whatever. The Alienation of land (karka') is to be considcn il first. Whatever is attached to the ground is treated as land, except ripe fruits (such as grapes), which may be sold separately in the same manner in which movables are alienated. The Acquisition of

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).