The Face Is the Only Sign

About This Talk

The last chapter of the laws of divorce is given to proving that a husband has died, and it tightens the standard of certainty while loosening the standard of the witness. A woman who told a court that her husband divorced her before two named men who then denied it is not believed later when she returns saying he died, since she has shown she wants out, and even one witness for her does not permit her a priori lest she hired him, though she need not leave a marriage already contracted. Her word that he died in war is rejected even in a peaceful marriage and even if she says she buried him, because the ranks before and behind him fell and she reasoned from that, and the same logic rejects a landslide, a region swarming with snakes, smoke poured into the house where he died and she survived, and a year of famine, in which a stated burial is nevertheless accepted since a person stretches a likelihood but does not invent a burial; her word stands where robbers killed him and spared her, since attackers do not generally kill the women, and in an epidemic, since everyone knows that in a plague some die and some live and the strong young man may die while the old and infirm is spared, leaving her no likelihood to lean on. A witness who claims to have seen the death is asked what he saw, and an answer describing a situation in which death was merely probable does not permit her: the open sea yields nothing since he may have been cast out unseen, while a cistern whose entire periphery is visible, watched past the time a man could live, does, as does a limb raised in a net that a person cannot live without; a lion's lair does not, since the lions may not eat him, but a pit of snakes and scorpions, a furnace, a cauldron of boiling wine or oil, or the windpipe and esophagus cut through in their majority do, even if he rose and fled, and a vulture feeding on a hanged man counts only if it feeds from his brain, heart or intestines. A body is identified by the forehead, the nose and the facial features, within three days before they distort, and never by signs on the body or the belongings, not even by a mole, which would be enough to recover a lost garment, though water preserves the features far longer and twelve hours ashore and swollen ends it, and candlelight or moonlight is sufficient light to look by. One witness who reports a drowning or similar death permits her only if he says that he buried the man, and a drowning in water without a boundary leaves her unpermitted even where all trace is gone, with a sage who permits her placed under a ban although a marriage contracted stands. Against that severity the chapter accepts hearsay from a competent adult, even a servant or maidservant but never from a minor; children whose report carries the funeral detail of eulogies, the sage behind the bier and what happened to the bier; a Jew who says he killed the man, whose confession cannot incriminate him so only the death remains in his mouth; a gentile speaking in the course of conversation, but not one who threatens to kill as he killed so and so, nor officials announcing an execution, since they use falsehood to spread fear; a man dying of snakebite who called out his name, his father's name and his town, even where the body is unrecognizable; a messenger repeating a message he does not understand; a gentile who buried an unidentified Jew who traveled out with him; ten men led away chained and reported dead and buried; a written note in a Jew's hand and the writing of a mute man examined and found sound of mind. No guessing from features and marks is allowed and the name and town must be stated, and witnesses are not put through formal interrogation at all. The Rambam closes by explaining himself, that the Torah's apparatus of witnesses governs matters nothing but testimony can establish, while a death verifies itself because a living man walks back into town and exposes the witness, so the Sages leaned lenient here so that the daughters of Israel are not left waiting, and he signs the treatise off blessing the Merciful One who grants assistance.