סנהדרין דף יט ע"א

And a positive commandment does not override a prohibition joined with a positive commandment.^[1]

ואין עשה - the positive commandment of "her yavam shall come to her" (Devarim 25).

But if she was widowed from erusin, why not?^[2] Let the positive commandment come and override the prohibition!

It is a decree: the first bi'ah on account of the second bi'ah.^[3]

ביאה ראשונה - for with it the mitzvah of yibum is fulfilled; the second bi'ah is not the mitzvah of yibum.

It was taught likewise in a beraisa: If they went ahead and he performed the first bi'ah, he has acquired her; but it is forbidden to keep her through a second bi'ah.^[4]

If a relative of his dies etc.^[5]

The Rabbis taught: (Vayikra 21:12) "And from the Mikdash he shall not go out" - he shall not go out with them, but he may go out behind them.

ומן המקדש לא יצא - this is written about a kohen gadol who is an onen,^[6] (Vayikra 21) for just before it is written "for his father or his mother he shall not make himself tamei."

How so?

When they are hidden, he is visible; when they are visible, he is hidden.^[7]

And he goes out as far as the gate etc.^[8]

Rabbi Yehudah speaks well, does he not?

Rabbi Meir can tell you: If so, he should not go to his house either!

Rather, this is what it means: "From the Mikdash he shall not go out" - he shall not go out from his sanctity. And since he has a distinguishing sign,^[9] he will not come to touch.

מקדושתו לא יצא - that is, he should reinforce his position so as not to bring himself to leave sanctity and become tamei.

And Rabbi Yehudah?

Because of his bitterness, perhaps he will happen to come and touch.

מרריה - the bitterness of his heart.

When he comforts.^[10]

The Rabbis taught: When he passes in the line^[11] to comfort others, the segan and the former anointed kohen are at his right, and the head of the family,^[12] the mourners and all the people at his left.

משוח שעבר - for example, when a disqualification befell the kohen gadol and they appointed another in his place; when the first one's disqualification passed he returns to his service, and the second is called "the former anointed."

And when he stands in the line and is comforted by others, the segan is at his right, and the head of the family and all the people at his left.

But the former anointed kohen does not come to him.

What is the reason?

He would be pained; he would think: he is rejoicing over me.

חלשה דעתיה - that of the kohen gadol.

חדי בי - he is happy at my mourning.

Rav Pappa said: Learn three things from this beraisa:

ש"מ - from the fact that it teaches the segan on one side, the people on the other, and the kohen in the middle, the segan is the same as the memuneh of our Mishnah, which teaches: the memuneh places the kohen in the middle and puts him between himself and the people.

Learn from it that the segan is the same as the memuneh.

And learn from it that the mourners stand and all the people pass by.

וש"מ - such is the custom of comforting in a line: the mourners stand in their place and all the people pass, one by one; when one reaches the mourner he comforts him and passes on. This is learned from the fact that it teaches when he passes to comfort, while regarding being comforted it teaches when he stands in the line to be comforted. [In the Rashi printed with the Gemara this Rashi comes after the next Rashi; perhaps Rashi also had a different reading in the Gemara.]

And learn from it that the mourners stand to the left of the comforters.

אבלים לשמאל המנחמים - from the fact that it teaches and the mourner and all the people at his left; and he was among the comforters, and it teaches that the mourners are at his left.

The Rabbis taught: At first the mourners would stand and all the people would pass by. And there were two families in Yerushalayim quarreling with each other; this one said, "I will pass first," and that one said, "I will pass first." They instituted that the people should stand and the mourners pass.

(Mnemonic: restored, and walked, and talked.)^[13]

Rami bar Abba said: Rabbi Yosi restored the matter to its former practice in Tzippori, that the mourners should stand and all the people pass by.

And Rami bar Abba said: Rabbi Yosi instituted in Tzippori that a woman should not walk in the marketplace with her son behind her, because of an incident that happened.

ובנה אחריה - her small son should not walk behind her, but in front of her.

משום מעשה שהיה - ruffians stole him from behind her and put him in a house; when she turned around and did not see him she began to cry out and weep. One of them came and said, "Come, and I will show him to you," and she went in after him, and they violated her.

And Rami bar Abba said: Rabbi Yosi instituted in Tzippori that women should talk with one another in the outhouse, because of yichud.^[14]

מספרות - with one another.

משום ייחוד - lest a man go there and, hearing no voice, enter and be secluded there; and we learned in a Mishnah (Kiddushin 80b): a man may not be secluded with two women. And it speaks of an outhouse in the fields, for their outhouse was in a field outside the city and everyone relieved himself there.

Rav Menashya bar Ues said: I asked the great Rabbi Yoshiyah in the cemetery of Hutzal,^[15] and he said to me: A line is no fewer than ten people, and the mourners are not counted, whether the mourners stand and all the people pass, or the mourners pass and all the people stand.

בין שאבלים עומדין שם כו' - and so he ruled to me: there is no change of custom in the matter; whether the mourners stand or the mourners pass, there is no harm here.

When he is comforted etc.^[16]

It was asked of them: When he comforts others, how -

- does he speak to them? Come and hear: And he says, "Be comforted."

והוא אומר תתנחמו - it is a beraisa.

What are the circumstances?

If you say: when others comfort him, he says to them, "Be comforted"?

Is he casting an ill omen on them?!

נחשא קא רמי - is he casting on them a sign of misfortune, that they will need comforting? - said in astonishment.

Rather, when he comforts others, he says to them, "Be comforted."

Learn from it.

A king does not judge etc.^[17]

Rav Yosef said: They taught this only of the kings of Israel, but the kings of the house of David judge and are judged.

As it is written: (Yirmiyahu 21:12) "O house of David, so says Hashem: Execute judgment in the morning."

And if we do not judge him, how can they judge?

But it is written: (Tzefaniah 2:1) "Gather yourselves together, and gather."^[18]

And Reish Lakish said: Adorn yourself, and afterward adorn others?

Rather, the kings of Israel - what is the reason they do not?

Because of an incident that happened.

For the slave of King Yannai^[19] killed a person.

Shimon ben Shatach said to the Sages: Set your eyes on him, and let us judge him.

תנו עיניכם - to judge him according to the law; do not flatter him and do not show him favor.

They sent to him: "Your slave killed a person."

He sent him to them.

They sent to him: "You too come here."

(Shemos 21:29) "And warning has been given to its owner,"^[20] the Torah said: let the owner of the ox come and stand by his ox.

He came and sat down.

Shimon ben Shatach said to him: "King Yannai, stand on your feet, and let them testify against you.

ויעידו בך - that your slave killed a person; for his slave is like his donkey, and it is a monetary loss to him; therefore he must be judged in his presence.

And it is not before us that you stand; rather, before the One Who spoke and the world came into being do you stand."

As it is said: (Devarim 19:17) "And the two men who have the dispute shall stand etc."^[21]

He said to him: "Not as you say, but as your colleagues say."

Tosfos

היינו סגן היינו ממונה - One cannot say that [the memuneh] is the former anointed kohen, for obviously he is not called a memuneh. And Rabbi Yaakov son of Rabbi Yehotzadak explained that it is implied from our Mishnah that also when he is comforted by others the memuneh places him in the middle, and it adds: all the people say to him etc.; and in the beraisa, it says that the former anointed kohen does not come to him.

ושמע מינה אבלים משמאל וכו' - Explanation: for we learned in the Mishnah he places him in the middle, between himself and the people, and in the beraisa it teaches "the head of the family and the mourners at his left, and all the people"; evidently the people come first at his left, and if so, the mourners were to the left of the people.

אבל מלכי בית דוד דן ודנין אותו - And if you ask: How can he judge? But we said above that a king is not seated on the Sanhedrin, because it is written "you shall not answer in a dispute"!^[22] One can answer that here it speaks specifically of judging monetary cases, where we do not mind if they cannot respond after him, as we say (below, Sanhedrin 32b): monetary cases begin from the greatest. However, it is difficult, for we find even capital cases, as it is written (I Shmuel 25) "And David also girded on his sword," from which we derive below (Sanhedrin 36b) that capital cases begin from the side.^[23] And since David considered himself king, how did he judge with them? One can answer that since that judgment concerned his honor, Naval having rebelled against him, he was not embarrassed if the others spoke before him. But the other kings of the house of David certainly do not judge capital cases, as I explained.

ינאי המלך עמוד על רגליך ויעידו בך - And if you ask: But we say there that even a talmid chacham need not stand,^[24] because this is a positive commandment and that is a positive commandment, and the positive commandment of honoring the Torah takes precedence, as it says in Perek Shevuas HaEdus (Shevuos 30b); and since a sage need not stand, all the more so a king, for a king is more important than a talmid chacham, as it says below that even according to the one who says that a rav who forgoes his honor, his honor is forgone, a king who forgoes his honor, his honor is not forgone, as it is said "You shall surely set a king over you" etc. One can answer that certainly the positive commandment of honoring the Torah is greater; so even though a talmid chacham would not need to stand, Yannai did need to stand. And the fact that a talmid chacham can forgo his honor, which is not so for a king, is because of the verse that says "You shall surely set" etc. - that his awe be upon you; for his honor comes to him because such is the command of the Omnipresent, and he cannot uproot the command of the Omnipresent. But a talmid chacham - his Torah is his own, and he may well forgo his honor, for it is his, as we say in Avodah Zarah (19a): at first it is called by the name of the Holy One, blessed be He, and in the end it is called by his own name, as it is said: "But his desire is in the Torah of Hashem, and in his Torah he meditates day and night."

ינאי המלך עמוד על רגליך וכו' - And as for what we say in Perek Shevuas HaEdus (Shevuos 30a), that if they wish to seat both litigants they may seat them, for it is forbidden only that one stand and one sit - if so, the king would not need to stand, provided his opponent sat. One can answer that capital cases are different. Alternatively, here it was the receiving of testimony, and receiving testimony is like the time of the final verdict,^[25] and at the time of the final verdict we say in Perek Shevuas HaEdus (Shevuos 30b) that all agree: the judges sit and the litigants stand. And if so, one must take care, when the beis din seats both litigants, that they not sit at the time testimony is received nor at the time of the verdict, for the time of receiving testimony is considered like the verdict.

Notes

1. 1. A positive commandment (aseh) overrides a prohibition (lo saaseh) when they clash, but not a prohibition joined by a positive commandment. A kohen gadol's brother's widow is forbidden to him by the prohibition "a widow he shall not take" and by the positive commandment "he shall take a wife in her virginity" (Vayikra 21:13-14), so the mitzvah of yibum cannot override them. This is why the Mishnah says he does not perform yibum.
2. 2. If his brother had only betrothed her (erusin) and then died, she is still a virgin, so the positive commandment "a wife in her virginity" is not violated. Only the prohibition of a widow remains, which the positive commandment of yibum should override.
3. 3. The mitzvah of yibum is fulfilled with the first bi'ah, while she is still a virgin. After it she is no longer a virgin, and further relations would violate the positive commandment as well. The Rabbis forbade even the first bi'ah, lest he continue to live with her.
4. 4. If they went ahead despite the decree, the yibum takes effect and she becomes his wife; but he may not continue to live with her, and he must divorce her.
5. 5. This clause of the Mishnah (Sanhedrin 18a) teaches that when a relative of the kohen gadol dies, he does not follow the bier; rather, when the bearers are hidden he appears, and when they appear he is hidden. A kohen gadol may not become tamei even for his father or mother.
6. 6. An onen is a mourner on the day of a close relative's death, before the burial. An ordinary kohen who is an onen may not perform the avodah, but a kohen gadol may; this verse tells him he need not leave the Mikdash.
7. 7. He follows at a distance: when the bearers turn into the next street and are out of sight, he appears in the street they have left. So he is never together with them.
8. 8. The Mishnah continues: he goes out with them as far as the gate of the city, in the words of Rabbi Meir. Rabbi Yehudah says that he does not leave the Mikdash, as it says "and from the Mikdash he shall not go out."
9. 9. The distinguishing sign is that he keeps his distance from the bearers (hidden when they appear); this reminds him not to come near the dead.
10. 10. The Mishnah (18a) teaches that when the kohen gadol comforts others, all the people pass one after another, and the memuneh places him in the middle, between himself and the people.
11. 11. The shurah is the line of comforters formed on returning from a burial; the comforters and the mourners pass each other, and each comforter offers words of consolation.
12. 12. The segan is the deputy of the kohen gadol, appointed over the kohanim. The head of the family (rosh beis av) heads the family of kohanim serving in the Mikdash on that day.
13. 13. A mnemonic for Rami bar Abba's three reports of Rabbi Yosi's enactments: "restored" (the old custom of the line), "walked" (a woman walking with her son), and "talked" (women talking in the outhouse).
14. 14. Yichud is the prohibition against a man being secluded with a woman forbidden to him. When the women talk, a man outside hears that people are inside and will not enter and be alone with one woman.
15. 15. Beis almin (literally, "house of eternity") is a cemetery. Hutzal was a town in Bavel.
16. 16. The Mishnah (18a) teaches that when the kohen gadol is comforted by others, all the people say to him, "We are your atonement," and he says to them, "Be blessed from Heaven." Now the Gemara asks what he says when he comforts others.
17. 17. The Mishnah (18a) teaches that the king does not judge and is not judged, does not testify and is not testified against.
18. 18. Reish Lakish reads "hiskosheshu" as from kishut, adornment: first correct yourself, and then correct others. So one who judges others must himself be subject to judgment.
19. 19. Yannai was a king of the Hasmonean dynasty; Shimon ben Shatach, his brother-in-law, was the leading Sage of the generation.
20. 20. The verse speaks of an ox known to gore, whose owner must be warned; the warning is given in the owner's presence. A slave is his master's property like an ox, so the master must be present when the case is judged.
21. 21. From this verse the Gemara (Shevuos 30a) learns that the litigants stand during the judgment; and they stand "before Hashem."
22. 22. Shemos 23:2, read as "lo saaneh al rav" - do not argue against the great one. Judges would not dare to contradict a king, so he is not seated on the Sanhedrin (18b).
23. 23. In capital cases the judges' opinions are heard first from the junior judges, so that they will not simply defer to the great ones. The verse is I Shmuel 25:13, where David and his men girded on their swords against Naval.
24. 24. Litigants must stand before the court. The Gemara in Shevuos (30b) rules that a talmid chacham who is a litigant need not stand, because the honor of the Torah outweighs it; and a king is honored even more than a talmid chacham.
25. 25. Kabbalas eidus is the formal hearing of the witnesses by the beis din. It is treated like the moment of the verdict, when the litigants must stand.