Talmud - Mas. Sanhedrin 41a
we must refer it to flogging.1
The school of Hezekiah taught: And if a man come presumptuously upon his neighbour to slay him with guile;2 - this implies that they warned him, yet he remained with wilful intent.3 The school of R. Ishmael taught: And they that found him gathering sticks:4 that implies that they warned him, yet he continued gathering. The school of Rabbi taught: Because [lit., 'for the word that'] he hath humbled [his neighbour's wife']5 , teaching, [it is] by reason of 'the word' [that he is stoned].6 And [these verses] are all necessary: for had the DIvine Law stated [this provision] only in reference to a man's sister, one might have said that it applied only to those liable to flogging, but not to those liable to death,7 therefore the Divine Law wrote, If a man come presumptuously etc.8 Again, had this verse only been written, I might have thought that it [sc. a warning) is necessary only for decapitation, which is a milder form of death; but for stoning, which is severer, one might hold that it is not [required]: thus all are necessary. But why need two [intimations]9 in respect of stoning? - According to R. Simeon,10 to extend [the law of warning] to cases of burning;11 whilst the Rabbis12 [answer]: (Scripture [sometimes] takes the trouble of stating a law13 which can be deduced a minori. But Scripture should have intimated it for stoning [only], and then these other cases14 could have been inferred from it! - Here too [the same answer must be given]: Scripture [sometimes] takes the trouble of stating a law which can be deduced a miniori.
'Did he admit his liability to death?' Whence do we infer this? Raba - others state, Hezekiah - said: Scripture states, Shall he that is to die15 be put to death;16 [He is not put to death] unless he [previously] admitted his liability to death.17
R. Hanan said: Witnesses against a betrothed damsel18 who were proved Zomemim, are not executed,19 since they may plead, We came forward [to testify] only to render her ineligible for her [intended] husband.20 But they must surely have warned her!21 - This treats of a case where they did not warn her. But if so, how could she be put to death at all?22 This refers to an educated woman, and is based on the view of R. Jose son of R. Judah. For it has been taught: R. Jose son of R. Judah said: A scholar needs no warning, for warning was instituted only in order to distinguish between wilfulness and unwilfulness.23 But since they are not executed, how could she be? For this becomes evidence to which the law of Zomem cannot be applied,24 and such is not admissible!25 - He [R. Hanan] actually meant it thus: Since they are not executed, for they can plead, 'We came only to make her ineligible for her [intended] husband,' she too cannot be executed, because it is evidence to which the law of Zomem cannot be applied. Then in the case of an educated woman, who, as we know, is to be executed on the view of R. Jose son of R. Judah, how, is that possible?26 - If she misconducted herself twice.27 But they [the witnesses] can still plead, We came only to render her forbidden to her second paramour!28 - [The case in question is one] where the misconduct was repeated with the first adulterer,29 or one of misconduct with one of her relations.30
But why state this only of a 'betrothed damsel': surely the same applies to a married woman too! - True: but [the purpose here is to teach that] even in such a case, though she has not yet lived with her husband, they can plead, We came forward only to make her ineligible for her [intended] husband.
R. Hisda said: If one testified that he [the accused] slew him with a sword, and another, that he slew him with a dagger, it [the evidence] is inadmissible.31 If one says, His clothes were black, and the other, His clothes were white; the evidence is admissible.32
An objection is raised: 'Certain'33 implies that the evidence must be certain; if one witness says, He slew him with a sword, and the other says, With a dagger; or if one says, His clothes were black, and the other, They were white, the evidence is not 'certain'?34 - R. Hisda interpreted this as referring to the [colour of] the cloth with which he strangled him, which comes under the same category as sword or dagger.
Come and hear! If the one says that his sandals were black, and the other, that they were white, the evidence is not certain'!35 - There too the meaning is, that he kicked him with his sandal and killed him.36
Come and hear! IT ONCE HAPPENED THAT BEN ZAKKAI CROSS-EXAMINED [THE WITNESSES] AS TO THE STALKS OF THE FIGS. - Rami b. Hama replied: The meaning is, that a man cut off a fig on the Sabbath, for which he was to be put to death.37 But has it not been taught: They said to him, 'He killed him beneath a fig-tree'? - But, said Rami b. Hama: It was a case where he [the accused] pierced his victim with the sharp end of a fig branch.
Come and hear! He questioned [the witnesses]: Were the stalks of this fig tree thin or thick? And were the figs [themselves] black or white?38 But, answered R. Joseph: Would one raise an objection from Ben Zakkai! Ben Zakkai had a different view, since he assimilated bedikoth to hakiroth.39 Now, who was this Ben Zakkai? Shall we say, R. Johanan b. Zakkai? Was he then [a member] of the Sanhedrin?40 Has it not been taught:41 The whole lifetime of R. Johanan b. Zakkai was a hundred and twenty years. Forty years he engaged in business; forty years he studied, and forty years he taught. And it has also been taught: Forty years before the destruction of the Temple, the Sanhedrin were exiled42 and took up residence in Hanuth.43 Whereon R. Isaac b. Abudimi said: This is to teach that they did not try cases of Kenas.44 'Cases of Kenas!' Can you really think so!45 Say rather, They did not try capitol charges.46 Again we learnt:47 When the Temple was destroyed, R. Johanan enacted [so and so].48 But the reference is to some other Ben Zakkai. Reason too supports this: for were R. Johanan b. Zakkai meant, would Rabbi49 have called him merely Ben Zakkai!50 Yet has it not been taught: It once happened that R. Johanan b. Zakkai examined [witnesses] as to the stalks on the figs?51 - He must therefore have been a disciple sitting before his Master,52 when he made this statement the reasoning of which was so acceptable to them [the Rabbis]
(1) I.e., a warning must be given that he is liable to flagellation.
(2) Ex. XXI, 14.
(3) From the use of the imperfect יזיד, which connotes a continuous present. Murder is punishable by decapitation.
(4) Num. XV, 33; here too, the deduction follows from the use of the present part. (מקושש), i.e 'he went on gathering sticks after he was found (and warned). This shows the need for warning in the case of stoning
(5) Deut. XXII, 24.
(6) על דבר 'By reason of the word' - sc. of warning.
(7) For one might think that owing to the severity of the crime people would themselves realise the consequences and so not need warning.
(8) So indicating the need of warning in a case punishable by death.
(9) One in connection with the 'gatherer of sticks', and the other regarding the 'betrothed damsel'.
(10) Who holds that burning is a severer death; consequently, the warning here cannot be deduced from the reference to stoning, since it might be thought that in the case of a severer punishment, warning is not required.
(11) R. Simeon bases this on the hermeneutical אם אינו ענין i.e if it has no hearing on cases of stoning, it must refer to cases of burning.
(12) Who hold that stoning is a severer death, so that warning for burning follows therefrom a fortiori.
(13) Here, not explicitly, but by the same principle of אם אינו ענין.
(14) Sc. lashes and decapitation.
(15) Lit., 'the dead.'
(16) Deut. XVII, 6.
(17) This is deduced from the expression, המת, the dead, instead of 'murderer'. In accepting the warning then, he is regarded as dead de jure, even before appearing in court, since the warning involves the consequences of the evil deed.
(18) Who have testified to her infidelity. Had the charge been proved, she would have been executed.
(19) Despite the fact that collusive witnesses are punished according to the law of retaliation.
(20) For if the charge were proved,even if for some reason she were not executed, she would be forbidden to her husband!
(21) That the consequence of her act was death. How then could this argument for the defence be raised
(22) And in that case the witnesses too are not liable, since it is written, And ye shall do unto him as he thought (plotted) to do unto his brother (Deut. XIX, 19), i.e., they are punished only as the accused would have been punished.
(23) If the murderer was not warned he could plead ignorance of the death penalty. A scholar could not raise such a point in his defence. Hence this woman would have been liable to death, and in consequence, the false witnesses too, but for the plea stated above.
(24) I.e., even if their evidence is proved to be false, the law of retaliation cannot operate, because of their possible defence that they intended only to make her ineligible for her intended husband, and not to bring the death penalty upon her.
(25) Lit., 'is not called testimony.' For unless there is this deterrent to false testimony, it is suspect ab initio.
(26) Since the witnesses themselves, if proved Zomemim, are not executed.
(27) And so the witnesses in the second charge can no longer plead that their intention was only to prohibit her to her husband, since she is already forbidden.
(28) An unfaithful woman is forbidden not only to her husband, but also to the adulterer, if he afterwards wishes to marry her. V. Sotah 26b.
(29) To whom she is already prohibited in consequence of their earlier relations.
(30) Whom she is absolutely forbidden to marry at all.
(31) Lit., 'not certain', quoted from: Behold if it be truth and the thing certain (Deut. XIII, 15. XVII, 4.), v. supra 30b.
(32) Contradictory statements made during cross examination are of sufficient importance to be invalidated only when they refer to the act itself.
(33) Deut. XIII, 15: XVII, 4. V p. 265, n. 9.
(34) Hence inadmissible. I.e the evidence must tally, even in respect of matters which have no direct bearing on the act.
(35) Although there is here no actual contradiction in matters directly involving the act.
(36) The sandals being the actual weapons, the question of colour is on a par with the question of sword or dagger.
(37) Hence the species of fig is of direct importance for the veracity of the witnesses.
(38) I.e., ripe or unripe. Now surely, he could not have killed anyone with the figs. This proves that the meaning is that the witnesses deposed that the accused had killed his victim under or near a fig-tree, and thus this again refutes R. Hisda.
(39) And maintained that just as contradictions on the latter invalidated the evidence, so on the former. The general view, however, disagrees with this, and R. Hisda's dictum was likewise in accordance with the general view.
(40) At the time when they still had power to try capital cases.
(41) Cf. R. H. 31b.
(42) From the Hall of Hewn Stones. V. infra p. 205, n. 5.
(43) חנות A place on the Temple Mount outside the hewn chamber where they had temporary residence. (Derenbourg, Essai, p. 467, and Krauss, REJ, LXIII, 66f., identify it with the 'Chamber of the sons of Hanan' (a powerful priestly family, cf. Jer. XXXV, 4) mentioned in J. Pe'ah I, 5.]
(44) V. Glos.
(45) That these, like capital charges, could be tried only in the chief seat of the Sanhedrin - the Hall of Hewn Stones! These cases could, in fact, be tried anywhere in Palestine.
(46) V. A.Z. 8b on Deut. XVII, 10: And thou shalt do according to the tenor of the sentence which they shall declare unto thee, from that place; this implies that it is the place that conditions the authority of the Sanhedrin in respect of the death sentence. [J. Sanh. I, 1 has, 'the right to try capital cases was taken away from them, i.e., by the Romans. For a full discussion of the subject v. Juster. op. cit, II, 138ff.]
(47) R. H. 29b.
(48) Hence the last period of R. Johanan's career was after the destruction of the Temple, when the Sanhedrin no longer tried capital cases.
(49) In the Mishnah.
(50) Depriving him of the title given at ordination.
(51) I.e., it must be the same person.
(52) At a time when capital cases were yet tried.
Talmud - Mas. Sanhedrin 41b
that they established it in his name. Thus while he was yet a student he was called Ben Zakkai, as is customary for a disciple sitting before his master, and when later he was a teacher,1 he was called Rabban Johanan b. Zakkai. Hence, when he is referred to as Ben Zakkai,2 it is in accordance with his earlier status;3 while when he is called R. Johanan b. Zakkai, it is in accordance with his status at the time [that the Baraitha was taught].
IT ONCE HAPPENED THAT ETC. . . WHAT IS THE DIFFERENCE BETWEEN HAKIROTH AND BEDIKOTH.? etc. What does 'EVEN4 IF BOTH SAY etc. mean? It is surely obvious that if when one of the two witnesses says, 'I do not know,' their evidence is valid, if two say so, their testimony is likewise valid?5 - R. Shesheth said: This refers to the first clause [of the Mishnah]6 and its meaning is as follows: In hakiroth, even if two say, 'We know,' and one is in doubt, their evidence is invalid. With whom does this agree? - With R. Akiba, who treated three [witnesses] as equal to two.7 Raba demurred: Surely the Mishnah states: THEIR EVIDENCE IS VALID!8 - But, said Raba, it means this: Even in hakiroth, if two say, 'We know,' and the third says, 'I do not know,' their evidence is valid. With whom does this agree? - Not with R. Akiba.
R. Kahana and R. Safra were studying [the Tractate] Sanhedrin in the school of Rabbah. When Rami b. Hama met them, he asked them: What have ye to say on the Tractate Sanhedrin as taught in the school of Rabbah?9 They retorted: And what in particular are we to say of the Tractate itself?10 What is your special difficulty? - He answered: [The difficulty arises] from what is stated: WHAT IS THE DIFFERENCE BETWEEN HAKIROTH AND BEDIKOTH? IN HAKIROTH, IF ONE [OF THE WITNESSES] ANSWERS, 'I DO NOT KNOW,' THEIR EVIDENCE IS VOID. WITH RESPECT TO BEDIKOTH, HOWEVER, IF ONE ANSWERS, I DO NOT KNOW,' OR EVEN IF BOTH SAY, 'WE DO NOT KNOW THEIR EVIDENCE IS VALID. Now consider: both are Biblically [required]:11 why then should hakiroth differ from bedikoth? - They said to him: How compare them?12 As for hakiroth, if one of the witnesses says, , 'I do not know', the evidence is invalid because it cannot be refuted;13 but with respect to bedikoth, if one of them answers, 'I do not know', the evidence remains valid, since it is still subject to refutation. Thereupon he said to them: If that is what you have to say, you have much to say thereon. But they replied: only because of your great forbearance have we said so much; had you criticized us, we should not have said anything.14
IF ONE TESTIFIES . . . [FOR ONE MAY HAVE BEEN AWARE OF THE INTERCALATION OF THE MONTH etc.] Till what date?15 - R. Aha b.Hanina said in the name of R. Assi in the name of R. Johanan: Until the greater part of the month [has passed].16 Raba said: We too learnt likewise' IF HOWEVER, ONE SAID, 'ON THE THIRD , AND THE OTHER, 'ON THE FIFTH, THEIR EVIDENCE IS INVALID. But why so? Why not assume that the one may have known of two intercalations,17 whilst the other was ignorant of both! Hence it must surely be so because, when the greater part of the month has passed, one knows thereof [sc. intercalation]! - [No.] In truth I might argue that even after the passing of the greater part of the month, one does not necessarily know [of the intercalation],18 yet he must have known of the Shofar-signal:19 , we may then say that he may have erred regarding one signal,20 but not regarding two.21
R. Hanina also said in the name of R. Assi in R. Johanan's name: Until what day of the month may the benediction over the new moon be recited?22 - Until its concavity is filled up. And how long is that? - R. Jacob b. Idi said In Rab Judah's name: Seven days. The Nehardeans said: Sixteen [days].
(1) I.e., after ordination.
(2) In the Mishnah.
(3) Which is chronologically correct.
(4) The word 'even' gives the impression that when both witnesses are dubious, the evidence is less likely to be valid than when only one is in doubt.
(5) For if one is ignorant on a certain point, the other's knowledge thereof is valueless. Hence whatever evidence is valid when one is ignorant, is also valid when both are ignorant.
(6) Which deals with HAKIROTH.
(7) Just as when there are only two witnesses, if one of them is disqualified, the whole evidence falls to the ground, so when there are three. V. Tosaf. and cf. Mak. 5b.
(8) How then interpret it of a case where the evidence is invalid?
(9) Seeing that you have studied under such a great man, you must surely have discovered many new points.
(10) I.e., even if we had not studied with Rabbah, was there really any difficulty to be found there? (Rashi). [Yad Ramah adds: 'as generally taught' (lit., 'as all the world teaches')?
(11) V. supra 40b, 41a.
(12) Lit., 'How so, now!'
(13) Be proving that the witnesses were elsewhere at the said time. Hence, if one is in doubt regarding the place or time, such refutation is impossible. - It should be observed that only refutation of time and place is meant in the whole discussion, since that is the only form of refutation which renders the witnesses liable to the law of retaliation.
(14) I.e., had you criticized our arguments we should not have been able to resist yours!
(15) I.e., until what day of the month may ignorance of the defectiveness or fullness of the last month be assumed in explanation of the discrepancy between two witnesses?
(16) After that, contradiction as to date invalidates the evidence. The greater part of the month means one day beyond half way.
(17) Either consecutively or alternately.
(18) And so the question from the Mishnah is not corroborative.
(19) Blown at the proclamation of the new moon, be the month full or defective.
(20) I.e., though knowing that the Shofar had been sounded, he may have erred once as to the day on which it was sounded.
(21) Hence the invalidity of the evidence where there is a difference of two days.
(22) A benediction is recited at each re-appearance of the new moon just as on the re-appearance of everything that is beneficial to mankind. V. J. Ber. IX, 2. 'He who sees the moon in her stage of renovation, utters: Blessed etc.'
Talmud - Mas. Sanhedrin 42a
Now, both agree with R. Johanan,1 but the one [explains it as meaning]: Until it is like a strung bow;2 the other: Until it is like a sieve.3
R. Aha of Difti4 said to Rabina:5 Yet should not one utter the benediction,6 'Blessed . . . who art good and dispensest good'!7 - He replied: But when it is waning, do we say, 'Blessed be the true judge.' '8 that we should say: 'Blessed . . . who art good and dispensest good?'9 But why should not both be recited?10 Since it is a regular phenomenon, no benediction at all is required.11
R. Aha b. Hanina also said in the name of R. Assi in R. Johanan's name: Whoever pronounces the benediction over the new moon in its due time welcomes, as it were, the presence of the Shechinah: for one passage states, This month;12 whilst elsewhere it is said, This is my God, and I will giorify Him.13
In the school of Rabbi Ishmael it was taught: Had Israel inherited no other privilege14 than to greet the presence of their Heavenly Father once a month,15 it were sufficient. Abaye said: Therefore16 we must recite it standing. But Meremar and Mar Zutra allowed themselves to be carried on the shoulders17 when they pronounced the blessing.
R. Aha said to R. Ashi: In 'the West,' they pronounce the following benediction: 'Blessed be He who reneweth the moons.' Whereupon he retorted: Such a blessing even our women folk pronounce!18 But [one should rather use the following], in accordance with Rab Judah, who gives it thus: Praised etc.19 who created the Heavens with His word, and all their hosts with the breath of His mouth. He appointed unto them fixed laws and times, that they should not change their ordinance. They rejoice and are glad to do the will of their Creator. They work20 truthfully, for their action is truth. The moon He ordered that she should renew herself as a crown of beauty for those whom He sustains from the womb,21 and who will, like it, be renewed in the future, and magnify their Maker in the name of the glory of His kingdom. Blessed art Thou, O Lord, who renewest the moons.
For with wise advice22 thou shalt make thy war.23 R. Aha b. Hanina [further] said in the name of R. Assi in R. Johanan's name: In whom do you find [skill to conquer in] the battle of the Torah?24 - Only in him who possesses bundles of Mishnah [teaching].25
R. Joseph applied to himself [the verse]: Much increase [of grain] is by the strength of the ox.26
SIMILARLY, IF ONE TESTIFIED, 'DURING THE SECOND HOUR' etc. R. Shimi b. Ash said: They taught this only of hours.27 But if one testifies, 'It was before sunrise,' and the other says, 'After sunrise, their evidence is invalid.28 This is obvious29 - But [put it thus:] if one testifies, 'Before sunrise,' and the other, 'During sunrise.'30 But this too is obvious! I might, however, think that he [the witness] was standing in the glow [before sunrise] and what he saw was but a gleam:31 He therefore informs us otherwise.
AFTER THIS, THE SECOND WITNESS IS ADMITTED etc. [AND HE DOES NOT DESCEND FROM THERE ALL THAT DAY.] Only THAT DAY,32 and no longer? But has it not been taught: 'If there is substance in his statement, he does not go down from there at all;33 but if there is no substance therein, he does not descend thence all that day, that his rise be not his fall'?34 - Abaye said: Interpret it [sc. the Mishnah] as applying [to a case] where no substance was found in his statement.
IF THEY FIND HIM NOT GUILTY etc. [AND DRINK NO WINE]. Why drink no wine? - R. Aha b. Hanina said: Scripture states, It is not for princes35 to say, Where is strong drink?36 [i.e.,] those who are engaged in [unravelling] the secrets of the world37 must not become drunk.
THE TWO SIDES DEBATE THE CASE TOGETHER UNTIL ONE OF THOSE WHO CONDEMN AGREES WITH etc. But what if they do not agree? R. Aha ruled: He is discharged. R. Johanan said likewise: He is discharged. R. Papa said to Abaye: Then he should be set free in the first place!38 He answered: Thus did R. Johanan say: It is in order that they may not leave the Court in confusion.39 Some say that R. Papa said to Abaye: Why add, Let him be discharged by the first court?40 To which he replied: R. Jose is in agreement with you. For it has been taught: R. Jose said: Just as a court of seventy-one is not increased, so may a court of twenty-three not be increased.
Our Rabbis taught: In civil suits, a declaration is made, The judgement nizdakan;41 but not in capital charges.42 What does nizdakan mean? Shall we say, The case is difficult:43 surely, the reverse should have been taught!44 R. Huna b. Manoah said in the name of R. Aha the son of R. Ika: We should reverse (the instances). R. Ashi said: In truth, you need not reverse it: what is meant by 'The judgment nizdakan'? - The case is wisely [established].45
An objection is raised: The presiding judge declares, 'The judgment nizdakan.' Now, should you agree that it means, 'The case is wisely established,' it is correct, hence the presiding judge makes the declaration. But if you maintain that it means, The case is difficult;' is it not better that the presiding judge should not say it? Surely in doing so he actually disgraces himself! - There is no comparison between declaring one's own disgrace and having another declare it.46 Others state: Should you agree that it means, The case is difficult,' it is correct, for there is no comparison between declaring ones own disgrace and having another declare it. But if you maintain that it means, 'The case is wisely established:' does not the president [of the court] thereby praise himself? Whereas it is written, Let another praise thee and not thine own mouth?47 - It is different in judicial matters, since the president is charged with the duty,48 as we learnt: When a decision has been arrived at, they are admitted, and the presiding judge declares, 'So and so, thou art not liable,' or, 'So and so, thou art liable.'49 [
(1) That the recital of the benediction is conditioned by the filling up of the moon's concavity.
(2) I.e., semicircular, which shape it assumes after seven days.
(3) I.e., round, at full moon.
(4) [Dibtha on the Tigris. (Obermeyer op. cit. p. 197)].
(5) With reference to Rab Judah's view.
(6) After seven days and until full moon.
(7) This benediction is made on the attainment of a thing over which its due blessing has already been pronounced, but which has now either been improved or been replaced by a thing of the same kind but of a better quality (v. Ber. 59b). And so R. Aba maintained that even if in Rab Judah's opinion the usual benediction for the new moon is not to be uttered after seven days because it is then no longer new, yet since it is still in its growing stage, becoming more luminous as the days pass until full moon is reached, this latter blessing should be uttered.
(8) A benediction recited on hearing bad tidings. Cf. Ber. 54a.
(9) When it is waxing. I.e., since its waning is not regarded as a loss, entailing this benediction, its waxing is not a gain, necessitating the other.
(10) On the respective occasions.
(11) For its waxing is no particular boon from God, nor its waning an infliction, which are the fundamental reasons of these benedictions.
(12) Ex. XII, 2, concerning the New Moon.
(13) Ex. XV, 2, in the Song of Moses. 'This' is taken as connoting something that could, as it were, be pointed at with the finger (v. Mekilta. Ex. XV, 2), and the use of this word in the two verses suggests that he, who praises God at the periodical renewal of the moon, gives witness to the revelation of Divine Glory as manifested in natural phenomena.
(14) זכות; v. p. 153. n. 2.
(15) I.e., if they practised no other observance but this - the benediction over the new moon.
(16) Because it is a greeting of God's Presence.
(17) Probably because of their infirmity through age. Cf. supra 7b, and Rashi's comment
(18) As if to say, 'There is nothing in that.' Such a short benediction is fit only for the uneducated. e.g., women (Maharsha).
(19) The 'etc.' (curr. edd. in brackets) stands for 'art thou, O Lord our God. . .'
(20) Tosaf.'s reading:' 'He works', referring to God.
(21) I.e., from childhood, viz., Israel, cf. Isa. XLVI, 3.
(23) Prov. XXIV, 6.
(24) I.e., who is qualified to meet the difficulties of the Torah, and give a true interpretation?
(25) I.e., he who is fully conversant with the law; according to Rashi, the point is that mere dialectic skill and ingenuity are no substitutes for a sound knowledge of the sources. חבילה, bundle, is a word play on חבולות.
(26) Prov. XIV, 4. V. Deut. XXXIII, 17, where Joseph is symbolically compared to a bullock; also Hor. 14a: R. Joseph was renowned for his erudition, being known as Sinai. Hence his application of the above verse to himself.
(27) I.e., if the witnesses state a definite time, e.g., three hours, four hours. etc. Only then is there a dispute in the Mishnah as to the margin of possible error.
(28) Even according to R. Judah.
(29) As there could be no error in such a matter.
(30) Their evidence is null.
(31) Mistaking it for the rays of sunrise; thus their statements tally.
(32) Does the disciple remain seated with the Judges.
(33) I.e., he becomes a member of the Court. V. Yad, Sanh. X, 8, although according to Tosafoth Yom Tob on Sanh. V, 4, he is not given a (for note 9 see p. 274) vote. Me'iri, however, maintains that he is seated with them only as long as the trial lasts.
(34) If he had to resume his seat in the presence of the Assembly, he would be disgraced.
(35) רוזנים, here connected with רז, secret. V. Dan. II, 18, 29.
(36) Prov. XXXI, 4.
(37) I.e., seeking to bring to light the secrets hidden in men's hearts, and so endeavouring to establish the truth - in a capital charge.
(38) I.e., after the court was increased to seventy-one and there was yet no clear majority. Why then delay by debating, surely the court as a whole must not seek to convict?
(39) I.e., without a definite decision. It reflects discredit on a court that it should rise in a state of controversy, having been unable to bring the matter to a definite conclusion (Rashi).
(40) Of twenty-three. If there was then no clear majority, both sides should have endeavoured to win one more vote over to their opinion, and in the case of failure, he should have been set free there and then.
(41) נזדקן, from the root זקן, may have a twofold meaning; a) old, in that the case has become old in discussion and could not be solved; or b) wise, in that the case has become clear, or wisely established, and is no longer in need of discussion. The following discussion is based on these two alternative meanings.
(42) Cf. Tosef. Sanh. VII.
(43) Lit., 'old', I.e., the case is become old and stale through prolonged discussion, and cannot be solved.
(44) I.e., in capital cases one should all the more say, 'The judgment nizdakan,' so as to acquit the accused.
(45) זקן according to the Rabbis, denotes 'wise' Cf. Kid. 32b.
(46) Which would be the position if the words were pronounced by another member of the court.
(47) Prov. XXVII, 2.
(48) Of declaring the verdict.
(49) Supra 29a.
Talmud - Mas. Sanhedrin 42b
MISHNAH. WHEN THE TRIAL IS ENDED,1 HE [THE CONDEMNED] IS LED FORTH TO BE STONED.2 THE PLACE OF STONING WAS WITHOUT THE COURT, EVEN AS IT IS WRITTEN, BRING FORTH HIM THAT HATH CURSED.3
A MAN WAS STATIONED AT THE DOOR OF THE COURT WITH THE SIGNALLING FLAG4 IN HIS HAND, AND A HORSE-MAN WAS STATIONED AT THE DISTANCE YET WITHIN SIGHT OF HIM,5 AND THEN IF ONE6 SAYS, 'I HAVE SOMETHING [FURTHER] TO STATE IN HIS FAVOUR', HE [THE SIGNALLER] WAVES THE FLAG, AND THE HORSE-MAN RUNS AND STOPS THEM.7 AND EVEN IF HE HIMSELF SAYS, 'I HAVE SOMETHING TO PLEAD IN MY OWN FAVOUR', HE IS BROUGHT BACK, EVEN FOUR OR FIVE TIMES, PROVIDING, HOWEVER, THAT THERE IS SUBSTANCE IN HIS ASSERTION.
GEMARA. And was the place of stoning only just outside the court and no further? Has it not been taught: The place of stoning was outside the three encampments?8 - True, it is even as you say, yet he teaches it thus, so that one may infer from it that if the Beth din went forth9 and stationed itself outside the three encampments,10 even so the place of stoning had to be without the court, in order that it [the court] should not appear murderously inclined, or that there might be a possibility of deliverance.11
Whence is this inferred?12 From what our Rabbis taught: Bring forth him that hath cursed without the camp:13 i.e., without the three camps. You say, 'without the three camps:' but may it not mean simply outside one camp? - It is here stated, Without the camp; and in reference to the bulls that were [wholly] burned,14 it is also said, without the camp:15 Just as there, [it means] without the three camps, so here too. And whence is that derived there? - From what our Rabbis taught: The whole bullock shall he carry away without the camp16 - i.e., without the three camps. You say, 'without the three camps;' but perhaps it simply means 'without one camp'?17 - But when Scripture states further, with reference to the bull offered for the Community,18 without the camp, which is unnecessary, for it has already been stated, And he shall burn it as he hath burned the first bullock,19 its purpose is to add a second camp.20 And when Scripture states further, with reference to the ashes,21 without the camp,22 which is also superfluous, since it has already been said, Where the ashes are poured out shall it be burned,23 its purpose must be to add a third camp.24
But why not derive it25 from the sacrifices slaughtered without [the legitimate precincts]?26 Just as there, [the meaning is] without one camp,27 so here too, without one camp is meant! - It is logical to make the deduction from the bullocks that were [wholly] burned, since they have the following points in common: [i] Bring forth... without the camp; [ii] [the bringing forth] is a necessary preliminary [to the act]; [iii] atonement.28 On the contrary, it should rather be deduced from the sacrifices slaughtered without, since they have the following in common; [i] human being; [ii] sinners; [iii] life is taken; and [iv] piggul?29 - It is preferable to deduce one necessary preliminary from another. R. Papa said:30 Where did Moses reside? In the camp of the Levites.31 And God said to him: Bring forth him that hath cursed without the camp32 - which therefore means, without the camp of the Levites. Hence, when it states, And they brought forth him that had cursed outside the camp, the camp of the Israelites [must be meant].33 But surely, that is necessary to intimate the fulfilment [of the command]? - This fulfilment is expressly stated:
(1) And the accused is found guilty.
(2) If he be so sentenced. Stoning is given here as an example, it being enumerated first in the list of the four modes of execution in Jewish law. Cf. infra 49b.
(3) 'Bring forth' implies 'without,' as is also shewn by the end of the sentence: without the camp. Lev. XXIV, 14.
(4) Sudarium, a cloth or kerchief.
(5) The signal man.
(6) Of the judges (Rashi).
(7) From carrying out the sentence until the court has gone into the details to see whether there is any substance in the new statement offered.
(8) That of the Divine Presence and the Priests, that of the Levites, and that of the rest of the Israelites. In Jerusalem they were situated as follows: The first was confined to the space of the Temple court, the second to the Temple Mount and the third occupied the rest of the city.
(9) From its usual locale, as stated in the previous note.
(10) I.e., one of the minor Sanhedrins.
(11) Between sentence and execution. The further the place of execution was from the court, therefore, the better for the condemned.
(12) That the execution must take place outside the three camps.
(13) Lev. XXIV, 14, with reference to the blasphemer.
(14) I.e., the sin offering of the anointed priest (Lev. IV, 3, seq.), and of the whole community (ibid. 13 seq.).
(15) Ibid. 12, 21.
(16) Ibid. 12.
(17) I.e., only outside the precincts of the Temple.
(18) In case the whole community committed an unwitting transgression.
(19) Ibid. i.e., the sin offering of the anointed priest, ibid. 3 seq.
(20) Beyond, which the burning is to take place.
(21) Which were heaped up and had to be removed.
(22) Lev. VI, 4.
(23) Lev. IV, 12; this explicitly states that the place for burning the ashes was without the camp. Hence the same statement in the verse first quoted is redundant.
(24) V. n. 12.
(25) Sc. the meaning of 'without the camp', Lev. XXIV, 14.
(26) Cf. Lev. XVII, 3ff. What ever man etc. . . . that offereth a burnt offering or sacrifice and bringeth it not unto the entrance of the appointed tent . . . that man shall be cut off from among his people.
(27) As is deduced from the words, bringeth it not unto the entrance of the appointed tent, i.e., the priestly camp, but outside it.
(28) In both these cases there is a positive command, Bring forth, etc. Whereas with references to sacrifices slaughtered outside the forecourt it is only stated, He that slaugthtered it outside the camp. Again, the bringing forth without the camp is a prerequisite for the fitting performance of the act; whereas in the case of sacrifices slaughtered outside the Temple court it is a transgression. Moreover, the burning of the bullock is an atonement for the High Priest and the whole Congregation (cf. Lev. IV, 20), and stoning likewise is an atonement for the malefactor; but that feature is absent in the case of sacrifices slaughtered without.
(29) 'Without the camp' in both these places refers to a human being; the blasphemer was to be taken 'without the camp', whilst it was a human being who slaughtered 'without the camp'; whereas, in connection with the burnt bullocks, this phrase relates to animals; they were to be taken 'without the camp'. Again, the blasphemer and the slaughterer without the camp are both sinners, whereas the bullock, in direct relation to which the phrase is stated, is not a sinner. Further, in both these cases, the leading 'without the camp' was in order to take life - that of the blasphemer and the sacrifice yet to be slaughtered; but the burnt bullocks were already slaughtered; and 'without the camp' is mentioned in connection with burning their carcases. And finally, the law of piggul is inapplicable to these two. פיגול, unfitness caused by an intention in the mind of the officiating priest to dispose of a sacrifice outside the legal limits of space or time. In both these cases the performance of the act outside does not involve this sin. In stoning it is, of course, not applicable, and sacrificing outside the prescribed area is not piggul, which implies instead a sacrificing outside the precincts but unlawful intentions about the sacrifice's subsequent disposal. Nor is piggul possible in the case of sacrifices slaughtered without. In the case of the bullocks to be wholly burned, an intention to burn them beyond their proper place makes the sacrifice in a sense piggul (v. Rashi). (5) V. n. 3.
(30) In proof that the third camp is meant.
(31) Since he was a Levite.
(32) Lev. XXIV, 14.
(33) It was not necessary to repeat the words, out of the camp; therefore the words here mean something different from their use earlier.
Talmud - Mas. Sanhedrin 43a
And the children of Israel did as the Eternal had commanded Moses.1 If so,2 what is the purpose of the sentence, And they stoned him with a stone?3 - This is needed for what was taught: And they stoned him with a stone,4 - him,5 but not his garments. With a stone,6 - [to teach] that if he was killed by a single stone the commandment is fulfilled.7 And it was necessary to write [in this instance], 'stone', and [in another], 'stones'.8 For had the Divine Law written [only] 'a stone', I might have said: In case he does not die through one stone, no more are to be brought to kill him. The Divine Law therefore states, 'stones'. Again, had the Divine Law written 'stones' [only], I might have said that at the outset two must be fetched. The Divine Law therefore states, 'a stone'.9
But this Tanna states, 'Here it is written [etc.],'10 - He meant, If it were not written, i.e., even if this verse11 were not found,12 I could have adduced a gezerah shawah; seeing, however, that this verse is written, a gezerah shawah is not necessary. R. Ashi said; Where did Moses reside? In the camp of the Levites And God said to him: Bring forth him that hath cursed, - i.e., without the camp of the Levites; without the camp, - i.e., outside the camp of the Israelites.13 And they brought forth him that had cursed,14 - this stands for the actual fulfilment [of the command]. But the fulfilment is expressly stated: And the children of Israel did as the Eternal had commanded Moses! - That is necessary to indicate that hands were laid [on the culprit]15 and that he was hurled down.16 Whereupon the Rabbis asked R. Ashi: How, according to you, do you interpret all the expressions; 'briny forth', in connection with the bullocks that are [wholly] burned?17 This is a difficulty.
A MAN WAS STATIONED. R. Huna said: It is obvious to me that the stone with which one is stoned, the gallows on which one is hanged, the sword with which one is decapitated, and the cloth with which one is strangled, are all provided by the Community. And why so? Because we could not tell a man to go and fetch his own property to kill himself. But, asked R. Huna, who provides the flag for signalling and the horse on which one rides to stop them?18 Seeing that they are for his protection, must they be provided by him, or rather, since the court is bound to endeavour to save him, by them? Again, what of R. Hiyya b. Ashi's dictum in R. Hisda's name; When one is led out to execution, he is given a goblet of wine containing a grain of frankincense, in order to benumb his senses, for it is written, Give strong drink unto him that is ready to perish, and wine unto the bitter in soul.19 And it has also been taught; The noble women in Jerusalem used to donate and bring it. If these did not donate it, who provided it? As for that, it is certainly logical that it should be provided out of the public [funds]: Since it is written. 'Give', [the implication is] of what is theirs.
R. Aha son of R. Huna inquired of R. Shesheth: What if one of the disciples said, 'I have a statement to make in his favour,' and there and then becomes speechless?20 R. Shesheth blew into his hand,21 and said; [You ask, what] if one becomes speechless! Why there may also be some one in the farthest part of the earth [who could make such a statement]!22 - In the latter case, however, no one has actually said so, but in the former case, such a declaration has been made! [Hence the problem,] What then? - Come and hear! For R. Jose b. Hanina said: If one of the disciples who argued for acquittal died, he is regarded as though alive and in his place.23 Thus, it is so only if he had actually spoken in favour of acquittal,24 but not otherwise.25 [That does not solve it:] where one has actually argued for acquittal, I have no doubts; but the problem arises if he only declared [that he could do so].26
AND EVEN IF HE HIMSELF etc. Even the first and second time?27 But it has been taught: 'The first and second time, whether his statement has substance or not, he is brought back; thereafter, if there is substance in his statement, he is brought back, but not otherwise'? - Said R. Papa: Interpret it, from the second time28 onwards. How do they [the judges] know?29 - Abaye said: Two Rabbis are sent with him; if his statement has substance, he is [brought back]; if not, he is not [brought back]. But why not do so in the first place?30 - Because being terrified, he cannot say all he wishes.31
MISHNAH. IF THEN THEY FIND HIM INNOCENT, THEY DISCHARGE HIM; BUT IF NOT, HE GOES FORTH TO BE STONED, AND A HERALD PRECEDES HIM [CRYING]: SO AND SO, THE SON OF SO AND SO, IS GOING FORTH TO BE STONED BECAUSE HE COMMITTED SUCH AND SUCH AN OFFENCE, AND SO AND SO ARE HIS WITNESSES. WHOEVER KNOWS ANYTHING IN HIS FAVOUR, LET HIM COME AND STATE IT.
GEMARA. Abaye said; It must also be announced: On such and such a day, at such and such and hour, and in such and such a place [the crime was committed], in case there are some who know [to the contrary], so that they can come forward and prove the witnesses Zomemim.32
AND A HERALD PRECEDES HIM etc. This implies, only immediately before [the execution], but not previous thereto.33 [In contradiction to this] it was taught: On the eve of the Passover Yeshu34 was hanged. For forty days before the execution took place, a herald went forth and cried, 'He is going forth to be stoned because he has practised sorcery and enticed Israel to apostacy. Any one who can say anything in his favour, let him come forward and plead on his behalf.' But since nothing was brought forward in his favour he was hanged on the eve of the Passover!35 - 'Ulla retorted: Do you suppose that he was one for whom a defence could be made? Was he not a Mesith [enticer], concerning whom Scripture says, Neither shalt thou spare, neither shalt thou conceal him?36 With Yeshu however it was different, for he was connected with the government [or royalty, i.e., influential].
Our Rabbis taught: Yeshu had five disciples, Matthai, Nakai, Nezer, Buni and Todah. When Matthai was brought [before the court] he said to them [the judges], Shall Matthai be executed? Is it not written, Matthai [when] shall I come and appear before God?37 Thereupon they retorted; Yes, Matthai shall be executed, since it is written, When Matthai [when] shall [he] die and his name perish.38 When Nakai was brought in he said to them; Shall Nakai be executed? It is not written, Naki [the innocent] and the righteous slay thou not?39 Yes, was the answer, Nakai shall be executed, since it is written, in secret places does Naki,40 [the innocent] slay.41 When Nezer was brought in, he said; Shall Nezer be executed? Is it not written, And Nezer [a twig] shall grow forth out of his roots.42 Yes, they said, Nezer shall be executed, since it is written, But thou art cast forth away from thy grave like Nezer [an abhorred offshoot].43 When Buni was brought in, he said: Shall Buni be executed? Is it not written, Beni [my son], my first born?44 Yes, they said, Buni shall be executed, since it is written, Behold I will slay Bine-ka [thy son] thy first born.45 And when Todah was brought in, he said to them; Shall Todah be executed? Is it not written, A psalm for Todah [thanksgiving]?46 Yes, they answered, Todah shall be executed, since it is written, Whoso offereth the sacrifice of Todah [thanksgiving] honoured me.47
(1) Ibid. 23.
(2) That the words, And they brought forth him etc., must be separately interpreted.
(3) Ibid. It is not needed to show how the execution was carried out, as that was already stated in the words quoted above; hence, by analogy, this too needs a distinctive interpretation.
(4) That is the literal translation, the sing. (stone) being used here.
(5) I.e., his bare body.
(6) Sing., as here.
(7) And more stones are not to be thrown at his corpse, to add to his disgrace.
(8) In the case of the gatherer of sticks, it is written, with stones (plural), Num. XV, 36.
(9) To teach that if he died by a single stone, it was satisfactory.
(10) I.e., he deduces the fact that the third camp is meant from a gezerah shawah. How then could R. Papa, an Amora, make the deduction from the verse itself?
(11) Quoted by R. Papa.
(12) Which itself indicates that the third camp is meant.
(13) For 'bring forth' itself implies beyond the camp (v. p. 578, n. 4), therefore the additional phrase denotes another camp.
(14) Lev. XXIV, 23.
(15) Cf. Lev. XXIV, 14. Let all that heard him lay their hands upon him.
(16) From a height, before stoning. V. infra 45a. The phrase quoted above cannot be taken as giving information regarding the carrying out of the stoning, as that has already been stated in the first portion of the verse. It indicates therefore the observance of all other regulations in connection with that penalty. e.g., the laying on of hands etc.
(17) Since he maintained that 'bring forth' has a meaning apart from 'without the camp. What separate meaning does he then give to these expressions when found in connection with the burnt bullocks?
(18) From carrying out the sentence, in case one of the judges raises a new point for the defence.
(19) Prov. XXXI, 6.
(20) I.e., should it be assumed that his arguments would have been weighty, and so now that he is unable to give them, the case should be retried by other judges?
(21) As a sign of ridicule at the question. [The figure of speech is probably taken from the method of blowing at the chaff when sifting ears of corn from one hand to the other, v. Ma'as. IV, 5.]
(22) Justice is impossible if such assumptions are permitted.
(23) I.e., when the vote is taken (supra 34a).
(24) I.e., gave his grounds for doing so.
(25) Hence if one said he could speak for the defence and there and then became dumb, his declaration is disregarded.
(26) I.e., when R. Jose states, 'argued for acquittal,' did he mean that he must have given reasons for his statement, or that he merely said he could do so, even if he was subsequently prevented from giving his reasons.
(27) I.e., must there be substance in his statement even the first and second time?
(28) Exclusive, not inclusive, i.e., from the end of the second time, viz., from the third time.
(29) Whether his statement has substance.
(30) I.e., as soon as he starts out for the place of execution, so as to avoid an unnecessary return even the first time.
(31) Therefore the first two times he receives the benefit of the doubt.
(32) V. Glos.
(33) E.g., not forty days before. The two passages that follow have been expunged in all censored editions. [As to the historical value to be attached to them, v. Klausner, Jesus. p. 27ff.]
(34) [Ms. M. adds the Nasarean'.]
(35) [A Florentine Ms. adds: and the eve of Sabbath.]
(36) Deut. XIII, 9.
(37) Ps. XLII, 3.
(38) Ibid. XLI, 6.
(39) Ex. XXIII, 7.
(40) Naki is employed here as subject.
(41) Ps. X, 8.
(42) Isa. XI, 1.
(43) Ibid. XIV, 19.
(44) Ex. IV, 22.
(45) Ibid. IV, 23.
(46) Ps. C, 1.
(47) Ibid. L, 23. ['We can only regard this fencing with texts as a jeu d'esprit occasioned no doubt by some 'actual event', Herford, op. cit. p. 93. Cf. also Klausner, op. cit. p. 28ff]
Talmud - Mas. Sanhedrin 43b
R. Joshua b. Levi said; He who sacrifices1 his [evil] inclination and2 confesses [his sin] over it,3 Scripture imputes it to him as though he had honoured the Holy One, blessed be He, in both worlds, this world and the next; for it is written, Whoso offereth the sacrifice of confession honoureth me.4
R. Joshua b. Levi also said: When the Temple was in existence, if a man brought a burnt offering, he received credit for a burnt offering; if a meal offering, he received credit for a meal offering; but he who was humble in spirit, Scripture regarded him as though he had brought all the offerings, for it is said, The sacrifices of God are a broken spirit.5 And furthermore, his prayers are not despised, for it is written, A broken and contrite heart, O God, Thou wilt not despise.6
MISHNAH. WHEN HE IS ABOUT TEN CUBITS AWAY FROM THE PLACE OF STONING, THEY SAY TO HIM, 'CONFESS',7 FOR SUCH IS THE PRACTICE OF ALL WHO ARE EXECUTED, THAT THEY [FIRST] CONFESS, FOR HE WHO CONFESSES HAS A PORTION IN THE WORLD TO COME. EVEN SO WE FIND IN THE CASE OF ACHAN, THAT JOSHUA SAID UNTO HIM, MY SON, GIVE, I PRAY THEE, GLORY TO THE LORD, THE GOD OF ISRAEL, AND MAKE CONFESSION UNTO HIM.8 AND ACHAN ANSWERED JOSHUA AND SAID, OF A TRUTH, I HAVE SINNED AGAINST THE LORD THE GOD OF ISRAEL, AND THUS AND THUS HAVE I DONE.9 AND WHENCE DO WE KNOW THAT HIS CONFESSIONS MADE ATONEMENT FOR HIM? - FROM THE WORDS, AND JOSHUA SAID: WHY HAST THOU TROUBLED US? THE LORD SHALL TROUBLE THEE THIS DAY,10 I.E., THIS DAY ART THOU TO BE TROUBLED, BUT THOU SHALT NOT BE TROUBLED IN THE NEXT WORLD.
AND IF HE KNOWS NOT WHAT TO CONFESS,11 THEY INSTRUCT HIM, 'SAY, MAY MY DEATH BE AN EXPIATION FOR ALL MY SINS.' R. JUDAH SAID: IF HE KNOWS THAT HE IS A VICTIM OF FALSE EVIDENCE, HE CAN SAY: MAY MY DEATH BE AN EXPIATION FOR ALL MY SINS BUT THIS. THEY [THE SAGES] SAID TO HIM: IF SO, EVERYONE WILL SPEAK LIKEWISE IN ORDER TO CLEAR HIMSELF.12
GEMARA. Our Rabbis taught: The word na13 is none other than a form of supplication. When the Holy One, blessed be He, said to Joshua, Israel hath sinned,14 he asked Him, 'Sovereign of the Universe, who hath sinned?' 'Am I an informer?' He answered, 'Go and cast lots.' Thereupon he went and cast lots, and the lot fell upon Achan. Said he to him; 'Joshua, dost thou convict me by a mere lot?15 Thou and Eleazar the Priest are the two greatest men of the generation, yet were I to cast lots upon you, the lot might fall on one of you.16 I beg thee,'17 he replied, 'cast no aspersions on [the efficacy of] lots, for Eretz Yisrael is yet to be divided by means of lots, as it is written, The land shall be divided by lot.18 [Therefore,] make confession.' Rabina said: He bribed him with words, saying, Do we seek aught from thee but a confession? confess unto Him and be free. Straightway, Achan answered Joshua and said: Of a truth, I have sinned against the Lord, the God of Israel, and thus have I done.19 R. Assi said in R. Hanina's name: This teaches that Achan had thrice violated the ban, twice in the days of Moses,20 and once in the days of Joshua, for it is written, I have sinned,21 and thus and thus have I done.22
R. Johanan said on the authority of R. Eleazar b. Simeon: He did so five times, four times in the days of Moses,23 and once in the days of Joshua, for it is written, I have sinned and thus and thus have I done.24 And why were they [the Israelites] not punished until this occasion? R. Johanan answered on the authority of R. Eleazar b. Simeon: Because [God] did not punish for secret transgressions until the Israelites had crossed the Jordan.
This point is disputed by Tannaim: The secret things belong unto the Lord our God, but the things that are revealed belong unto us and to our children for ever.25 Why are the words: Lanu u-lebanenu, [unto us and to our children] and the 'ayin of the word 'ad, [for ever] dotted?26 - To teach that God did not punish for transgression committed in secret, until the Israelites had crossed the Jordan:27 this is the view of R. Judah. Said R. Nehemia to him; Did God ever28 punish [all Israel] for crimes committed in secret; does not Scripture say for ever?29 But just as God did not punish [all Israel] for secret transgressions [at any time], so too did He not punish them [corporately] for open transgressions until they had crossed the Jordan.30 Then
(1) I.e., resists, or conquers.
(2) After having been induced to sin.
(3) Cf. e.g. Lev. XVI, 21. Ms. M. omits 'over it'.]
(4) יכבדנני Ps. L, 23. This is probably deduced from the nun energicum inserted between the suffix and the verbal stem for the sake of emphasis.
(5) Ps. LI, 19.
(7) This and any other sins you may have committed.
(8) Josh. VII, 19.
(9) Ibid. 20.
(10) Ibid. 25.
(11) I.e., he cannot remember his other sins.
(12) Everyone would say this in order to clear himself in the eyes of men, and the court would acquire a bad reputation.
(13) נא (I pray thee) in Josh. VII, 19. quoted in the Mishnah.
(14) Josh. VII, 11.
(15) Without the testimony of witnesses.
(16) Surely, a lot is a thing of chance and can in no way be taken as decisive evidence; it might fall on the least likely people.
(17) Expressed in the word נא (I pray thee) in the verse. Hence its meaning of 'supplication'.
(18) Num. XXVI, 55.
(19) Josh. VII, 20.
(20) Once in the war with the king of Arad, where it is written, And Israel vowed a vow unto the Lord and said . . . then I will utterly destroy their cities (Num. XXI, 2); and a second time in the war between Israel and Sihon, though a ban in that connection is not specifically mentioned, v. J. Sanh. VI, 3.
(21) I.e., this time.
(22) I.e., earlier, 'thus' and 'thus' implying twice apart from this instance.
(23) In the wars with Arad, Sihon, Og and Midian, (Maharsha and Me'iri).
(24) This view is based on the number of words in the Hebrew text, five in all.
(25) Deut. XXIX, 28.
(26) לנו ולבנינו דע Fifteen passages in the Bible contain dotted words. Many meanings have been attached to such dots, but the most probable is that they were a device to indicate homiletical explanations which the Rabbis had connected with the words. Cf. C. D. Ginsburg, Introduction to the Massoretic Critical Edition of the Hebrew Bible, p. 331.
(27) The dots on the words, To us and to our children, denote that corporate responsibility holds good only for revealed or open transgressions, whilst secret offenders have responsibility individually to God alone. But as one might then have inferred that it was so for all time , the ע of the word עד (until) is therefore dotted, indicating that it was so only until, i.e., up to the crossing of the Jordan, but not after it, when corporate responsibility was involved also in secret transgressions.
(28) I.e., even after they crossed the Jordan.
(29) Translating, To us and our children belong only the revealed or open things; but the secret offender will 'for ever' be alone responsible to God, and will not implicate the whole people.
(30) According to R. Nehemia the absence of corporate responsibility for secret sins, irrespective of peril, is expressly stated in the words for ever. The dot on the ע in עד however, indicates a change of responsibility for revealed transgressions in the time they crossed the Jordan.
Talmud - Mas. Sanhedrin 44a
in the case of Achan, why were they punished? - Because his wife and children knew thereof.1
Israel hath sinned. R. Abba b. Zabda said: Even though [the people] have sinned, they are still [called] 'Israel'.2 R. Abba said: Thus people say, A myrtle, though it stands among reeds, is still a myrtle, and it is so called.
Yea, they have even transgressed my covenant which I have commanded them, yea, they have even taken of the devoted thing and have also stolen [it], and dissembled also, and they have even put it amongst their own stuff.3 R. Ile'a said on behalf of R. Judah b. Masparta: This teaches that Achan transgressed the five books of the Torah, [for the word 'gam'4 is written there five times].
R. Ile'a also said on behalf of R. Judah b. Masparta; Achan was an epispastic:5 Here it is written, They have even transgressed my covenant;6 and elsewhere7 it is said, He hath broken my covenant.8 But is this not obvious?9 - I might have thought that he would not practise a licence in respect of a precept which concerned his own body; therefore he (R. Ile'a) informs us otherwise.
And because he hath wrought a wanton deed in Israel.10 R. Abba b. Zabda said; This teaches that Achan committed adultery with a betrothed damsel: Here it is written, And because he hath wrought a wanton deed in Israel, and elsewhere, it is said, For she hath wrought a wanton deed in Israel.11 But is this not obvious?12 - I might have thought that Achan was not so extremely licentious;13 therefore he gives us this information.14 Rabina said: He was punished as is a betrothed damsel [who commits adultery], viz., by stoning.15
The Resh Galutha once said to R. Huna; It is written, And Joshua took Achan the son of Zerah and the silver and the mantle and the wedge of gold and his sons and his daughters, and his oxen and his asses, and sheep, and his tent and all that he had.16 If he sinned, wherein did his sons and daughters sin? - He retorted: On your view, [one might ask:] If he sinned, how did all Israel sin, that it is written, And all Israel with him?17 But it was to overawe18 them. So here too, it was to overawe them.19
And they burned them with fire and they stoned them with stones.20 By both [forms of death]?21 - Rabina answered: Those suitable for burning22 were burned, and those suitable for stoning23 were stoned.
And I saw among the spoil a goodly mantle of Shinar,24 and two hundred shekels of silver.25 Rab said: It was a silk mantle;26 Samuel maintained: It was a cloak dyed with alum.
And they laid them down27 before the Lord.28 R. Nahman said: He [Joshua] came and cast them down before God, exclaiming, 'Sovereign of the Universe! for these shall a [number equal to a] majority of the Sanhedrin he killed?'29 For it is written, And the men of Ai smote of them about thirty-six men;30 regarding which it was taught, i.e., literally thirty-six: this is R. Judah's view. R. Nehemia said to him; Were there actually thirty-six? Surely, only about thirty-six men is written. But this refers to Jair the son of Manasseh31 who was equal [in importance] to the majority of the Sanhedrin.32 R. Nahman said in Rab's name: What is meant by, The poor useth entreaties, but the rich answereth insolently.?33 - The poor useth entreaties - that refers to Moses;34 the rich answereth insolently, - to Joshua. Why so? Shall we say, because it is written. And they laid them down before the Lord,35 which R. Nahman interpreted, He came and cast them down before God;36 But did not Phinehas do the same? For it is written, Then stood up Phinehas and wrought judgment [wa-yefallel] and so the plague was stayed:37 whereon R. Eleazar said: Not wayithpallel,38 but wa-yefallel is written;39 thus teaching that he had contentions with his Creator: he came and cast them40 before God and cried out, 'Sovereign of the Universe! because of these, shall twenty-four thousand of Israel fall?' As it is written, And those that died by the plague, were twenty and four thousand?41 - Nay it is inferred42 from the following: [And Joshua said, Alas! O Lord,] wherefore hast Thou brought this people over the Jordan.43 Yet Moses too spake thus: Wherefore hast thou dealt ill with this people.?44 - Nay but it is derived from the following: Would that we had been content and dwelt beyond the Jordan.45
And the Lord said unto Joshua, Get thee up.46 R. Shila expounded this: The Holy One blessed be He, said to him: Thy [transgression] is greater47 than theirs,48 for I commanded, And it shall be when ye are passed over the Jordan that ye shall set up [these stones];49 ye advanced sixty mils however, [into the country before setting them up].50 But when he [R. Shila] had gone out, Rab51 set up his interpreter to speak for him, who expounded; As the Lord commanded Moses His servant, so did Moses command Joshua, and so did Joshua; he left nothing undone of all that the Lord commanded Moses.52 What then do the words, Get thee up,53 teach us? - The Lord said to him, Thou hast brought [guilt] upon them:54 and for that reason He said to him with reference to Ai: And thou shalt do to Ai and her king as thou didst to Jericho and her king, [only the spoil thereof and the cattle thereof shall ye take for a prey.]55
And it came to pass when Joshua was by Jericho that he lifted up his eyes and looked . . . And he said, Nay, but I am captain of the host of the Lord, I am now come. And Joshua fell on his face to the earth and bowed down.56 But how could he do so?57 Did not R. Johanan say: One may not greet his fellow at night for fear that he may be a demon?58 There it was different, for he said; I am captain of the host of the Lord, I am now come, etc. But perhaps he lied? - We have a tradition that such do not utter the name of God in vain.
(1) It was therefore no longer secret.
(2) Israel is the name of honour for the people when faithful to God. Cf. Isa. XLIX, 3.
(3) Josh. VII, 11.
(4) Also, or even. [Ms. M. omits bracketed words. The inference that he transgressed the five books will then be deduced from the verse itself: my covenant, referring in Genesis (XVIII); taken of the devoted thing, to Leviticus (XXVIII, 28); stolen, to Exodus (XX, 15); dissembled, to Numbers (V, 5-10); put it amongst their own stuff, to Deuteronomy (XXIII, 25), v. Yad Ramah.]
(5) I.e., he effaced the sign of the Abrahamic covenant in circumcision.
(6) Josh. VII, 11.
(7) With reference to circumcision.
(8) Gen. XVII, 14. Hence covenant' is assumed to have the same meaning in both verses.
(9) Seeing that R. Ile'a himself said earlier that he had transgressed the five books of the Torah; that includes epispasm.
(10) Josh. VII, 19.
(11) Deut. XXII, 21; this refers to a betrothed maiden who committed adultery.
(12) V. n. 8.
(13) As to make himself despised by men also, for having brought shame (in her family, and having made her ineligible to marry her intended husband.
(14) This was probably intended to teach that there is no limit to licentiousness once a man breaks loose from restraint.
(15) He should legally have been burned for taking of the things under the ban. cf. Josh. VII, 15: He that is taken with the devoted things shall be burned with fire.
(16) Ibid. 24.
(18) Lit., 'chastise'. I.e., all Israel were taken to the place of execution to be overawed by his punishment.
(19) Thus, his family was brought there merely to witness the execution.
(20) Ibid. 25.
(21) Surely they were not executed twice!
(22) The inanimate property.
(23) The livestock.
(24) Babylon. Cf. Gen X, 10; XI, 2.
(25) Josh. VII, 21.
(26) Rashi: Woollen.
(27) Lit., 'poured out'.
(28) Ibid. 23.
(29) I.e., of the great Sanhedrin of seventy one.
(30) Ibid. verse 5.
(31) A contemporary of Moses and a descendant of Manasseh by his grandmother and of Judah by his grandfather. His grandmother was probably an heiress and therefore he is reckoned by the tribe of Manasseh (I Ch. II, 5, 22, 23)
(32) The Heb. is כשלשים, and the כ is translated as a kaf similitatis, 'like,' i.e., one man who was like thirty-six
(33) Prov. XVIII, 23.
(34) Who, when imploring God's mercy for the people, spake humbly. The term 'poor' which is used of Moses in this instance is attributed to the fact that in comparison with Joshua, he was poor in the conquest of the land (Maharsha).
(35) Josh. VII, 23.
(36) Meaning that Joshua threw them down in a challenging or insolent way.
(37) Ps. CVI, 30.
(38) ויתפלל, 'he interceded', 'prayed'.
(39) ויפלל, 'he judged'.
(40) Zimri and Cozbi. Cf. Num. XXV, 7ff.
(41) Num. XXV, 9.
(42) That Joshua spoke insolently.
(43) Josh. VII, 7.
(44) Ex. V, 22.
(45) Josh. VII, 7.
(46) Ibid. 10.
(47) Lit., 'harder'.
(48) Deduced from the redundant לך 'thee', i.e., it is on thy account too that this disaster has happened. 'Theirs' probably refers to Achan's sin.
(49) Deut. XXVII, 4.
(50) The distance between the Jordan and the mountains of Gerizim and Ebal, where the stones were set up, is sixty mils. V. Sotah. 36a.
(51) [Rab was then still in Nehardea, the place of R. Shila.]
(52) Josh. XI, 15. I.e., Joshua did not sin as suggested above.
(53) V. p. 288, n. 16.
(54) By forbidding them the spoil of Jericho.
(55) Josh. VIII, 2, thus expressly ordering him not to proclaim a ban.
(56) Josh. V, 13-14. The fact that, as his question implies, he could not distinguish who the other was, shows that it was night time.
(57) I.e., bow to an unknown man.
(58) The customary greeting of Shalom (peace) is held in equal esteem with the name of God (v. Shab. 10b), and therefore may not be extended to a demon; whilst bowing to a demon is most certainly forbidden.
Talmud - Mas. Sanhedrin 44b
He [this stranger] said to him: 'Yesterday evening, ye omitted the evening Tamid,1 and to-day2 ye have neglected the study of the Torah.'3 'For which of these [offences] hast thou come?' 'I have now come,'4 he replied. Straightway [we read], And Joshua lodged that night in the midst of the vale'.5 Whereon R. Johanan observed: It teaches that he spent the night in the profundities6 of the law.
R. Samuel b. Unia said in the name of Rab: The study of the Torah is more important than the offering of the Tamid, since it is written, I have now come.7
Abaye asked R. Dimi:8 To what do ye in 'the West' relate the following verse: Go not forth hastily to strife, for what wilt thou do in the end thereof when thy neighbour hath put thee to shame. Debate thy cause with thy neighbour, but reveal not the secrets of another?9 - [He answered]: When the Holy One, blessed be He, said to Ezekiel, Go and say unto Israel, An Amorite was thy father, and thy mother was a Hittite,10 the intercessory11 spirit said before the Holy One, blessed be He, 'Sovereign of the Universe! if Abraham and Sarah came and stood before Thee, wouldst Thou say [this] to them and put them to shame?' Debate thy cause with thy neighbour,12 but reveal not the secret of another!13 But has he so much license?14 - Yes, For R. Jose son of R. Hanina said: He has three names: Pisakon, Itamon, and Sigaron.15 Pisakon, because he argues against the Most High;16 Itamon, because he hides the sins of Israel, Sigaron, because when he concludes17 a matter, none can reopen it.18 Hadst thou prepared thy prayer before thy trouble came?19 R. Eleazar said: One should always offer up prayer before misfortune comes; for had not Abraham anticipated trouble by prayer between Beth-el and Ai,20 there would not have remained of Israel's sinners a remnant or a survivor.21 Resh Lakish said: He who devotes his strength to prayer22 below,23 has no enemies [to overcome] above.24 R. Johanan said: One should ever implore mercy that all [sc. Heavenly beings] may support his effort [in prayer] so that he may have no enemies on high.25
AND WHENCE DO WE KNOW THAT HIS CONFESSIONS MADE ATONEMENT FOR HIM etc. Our Rabbis taught: Whence do we know that his confessions made atonement for him? - From the verse, And Joshua said unto him, Why hast thou troubled us, the Lord shall trouble thee this day: [implying] this day art thou troubled, but thou shalt not be troubled in the next world. And again it is written, And the sons of Zerah: Zimri,26 and Ethan and Heman and Calcol and Darda,27 five of them in all.28 Why the phrase: five of them in all?29 - Because all five were equally destined for the world to come. Here he is called Zimri, but elsewhere, Achan.30 Rab and Samuel [differ thereon]: One maintains his real name was Achan; and why was he called Zimri? - Because he acted like Zimri.31 The other maintains, His real name was Zimri; and why was he called Achan? - Because he wound the sins of Israel about them like a serpent.32
AND IF HE KNOWS NOT WHAT TO CONFESS . . . R. JUDAH SAID . . . TO CLEAR HIMSELF. Why not let them clear themselves? - In order that they may not bring discredit upon the Court and the witnesses.
Our Rabbis taught: It happened once that a man who was being taken to be executed said: 'If I am guilty of this sin, may my death not atone for any of my sins; but if I am innocent thereof, may my death expiate all my sins. The court and all Israel are guiltless, but may the witnesses never be forgiven.' Now, when the Sages heard of the matter they said: It is impossible to reverse the decision, since the sentence has been promulgated. He must therefore be executed, and may the chain [of responsibility] ever hang on the neck of the witnesses. But is he to be relied on?33 - This holds good only where the witnesses have retracted.34 But even so, of what consequence is it? Once a witness testified - he cannot testify again!35 It is necessary [to state this] even where they [the witnesses] give a reason for their action,36 as happened in the case of Ba'ya37 the tax-collector.
MISHNAH. WHEN HE IS ABOUT FOUR CUBITS DISTANT FROM THE PLACE OF STONING, HE IS STRIPPED OF HIS GARMENTS.38 A MAN IS COVERED IN FRONT AND A WOMAN BOTH IN FRONT AND BEHIND: THIS IS R. JUDAH'S VIEW. BUT THE SAGES SAY: A MAN IS TO BE STONED NAKED BUT A WOMAN IS NOT TO BE STONED NAKED.
(1) The daily burnt offerings, one of which was sacrificed every morning, and one towards evening. Cf. Num. XXVIII, 3.
(2) Lit., 'now'.
(3) The conversation took place during the night when fighting was at a standstill and they should have been studying the land.
(4) I.e., I have come to you for the present offence.
(5) The ordinary text reads: among the people instead of: in the midst of the vale. Again, verse 13 of the same chapter in which we do find, in the midst of the vale, begins with, And Joshua went, instead of, And Joshua lodged. It is probable that the Rabbis combined the two verses for the purpose of their exegesis, which is not unusual with them. Cf. Tosaf. Meg. 3a. s.v. וילן; Shabb. 128a s.v. ונתן. In a parallel passage in 'Er. 63b, the verse quoted conforms to the Biblical text: And Joshua went, and the text further reads: He went into the depths of the study of the law. Bah mentions another version which reads as follows: And Joshua lodged that night amongst the people; further it is written, into the midst of the vale, - this teaches that he went and spent that night in the depths of the study of the law. V.D.S. a.l.
(6) עמק means 'valley', as well as 'deep' or 'depth'.
(7) I.e., to reprimand you, not on account of the Tamid, but for the present offence, neglecting the study of the law.
(8) R. Dimi often carried Palestine exegesis to the Babylonian schools.
(9) Prov. XXV, 8-9.
(10) Ezek. XVI, 3.
(11) פסקונית lit., 'an arguing spirit, - an additional name of the Angel Gabriel, who always interceded on behalf of Israel. V. however p. 99, n. 6.
(12) I.e, reproach him alone.
(13) Do not take up anothers' shame.
(14) To reproach God so freely!
(15) פיסקון from פסק 'to split;' איטמון from אטם 'to lock'; and סיגרון from סגר 'to close'. So at least according to the Talmudic interpretation which follows.
(16) Lit., 'he splits words upwards.
(17) I.e., when his words are of no effect.
(18) No others can successfully intercede. Kohut suggests that they are of Arabic origin. Pisakon denoting shame; Itamon, sin, and Sigaron, pain, an angel being in charge of each of these three things. Hence in his opinion, פסקנית does not denote Gabriel but the Spirit of Shame. V. 'Aruch Completum, vol. I, p. 63.
(19) היערוך שועך לא בצר Job XXXVI, 19 (E.V.: Will thy riches avail that are without stint.) ערך means 'to prepare', as well as 'to estimate;' שוע means 'prayer,' or 'wealth'.
(20) Cf. Gen. XII, 8: He pitched his tent, having Beth-el on his west, and Ai on the east, and he builded an altar to the Lord and called upon the name of the Lord.
(21) At the Battle of Ai in the days of Joshua.
(22) Lit., 'who strengthens himself in prayer.'
(23) I.e., on earth.
(24) Translating: 'Hadst thou put forth thy prayer (with strength), thou wouldst have had no adversary (above)'.
(25) Translating somewhat similarly: 'When thou canst prepare thy prayer, see that thou hast no enemies (on high, to urge its rejection)'.
(26) According to the Rabbis, he is identical with Achan. Although the latter was a great grandson of Zerah, he is called the son of Zerah in Josh. VII, 24. The four other sons are referred to in I Kings (V, 11) as great men, and the fact that Achan (Zimri) is associated with them is taken as an indication that his confession helped him to enter the world to come in common with the others.
(27) Dara, in I Chron II, 6.
(28) I Chron. II, 6.
(29) Surely the number is obvious and needs no special mention! Therefore it has some other meaning.
(30) Cf. Josh. VII, 24.
(31) I.e., he was licentious. Cf. Num. XXV, 14, and supra 44a.
(32) Cf. Gr. **.
(33) I.e., is his statement so trustworthy that responsibility may be thrust upon the witnesses? - Such would seem to have been the text before Rashi, v. D.S. a.l. Our reading is: But that is obvious, (for) is he then the sole authority! I.e., why state that the Rabbis did not reverse the sentence! Is he then to have his own way entirely so that we should disbelieve the witnesses.
(34) After the sentence had been promulgated.
(35) Witnesses are not permitted to retract their first statement and make another, since they may have been prompted thereto out of pity for the accused.
(36) In withdrawing their previous statement. E.g., when they say that they have previously testified against him out of hatred. In this case, though the execution is carried out, the witnesses bear responsibility.
(37) According to Kohut 'Aruch Completum, vol II, p. 140, Ba'ya is derived from the Arabic, meaning an informer. In the case in question he had denounced the tax defaulters in the Government, an act which, of course, aroused the enmity of the people. According in Rashi, the subject matter of the text is connected with this name as follows: The funeral of the said collector coincided with that of a very pious man, but accidentally the coffins were exchanged, so that the honour intended for the Rabbi was paid to the other, and vice versa. An explanation of the happening was given by the Rabbi in a dream to one of his pupils who was disturbed at the occurrence, and he also informed him that severe punishment was in store for Simeon b. Shetah in the world to come for the neglect of his duty in tolerating eighty women in Ashkelon guilty of sorcery. Simeon, on being informed about it, took a serious view of the matter and had them executed. The relatives of these women, however, inflamed with a passion for revenge, plotted against his son, charging him with a capital crime, as a result of which he was sentenced to death. On his way to the place of execution the condemned man protested his innocence so vehemently that even the witnesses were moved to admit the falsity of their evidence, giving as ground for their former act their feelings of enmity against Simeon b. Shetah. Yet their latter statement was not accepted, according to the law expounded in the text, that a witness is not to be believed when be withdraws a former statement. The source for Rashi's story is found in J. Sanh. VI, 3; 6, and in J. Hag. II, 2, with slight variations.
(38) In order to hasten his death and lessen the pain (Maim.). The Talmud, however, bases it on Scripture.
Talmud - Mas. Sanhedrin 45a
GEMARA. Our Rabbis taught: One part of a man was covered, [viz.,] in front and two parts of a woman, [viz.,] in front and behind, because she is wholly shameful [when naked]: this is R. Judah's opinion. The Sages said: A man is stoned naked, but not a woman, What is the Rabbis' reason? - Scripture states, And they shall stone otho [him]. Why state 'otho'?1 Shall we say, 'otho' but not 'othah,' [her]? but it is written, Then shalt thou bring forth that man or that woman!2 What then is the significance of 'otho'. - That only he3 [is stoned] without his garments, but she4 is stoned in her clothes.
R. Judah5 said: 'Otho' implies without clothes, and there is no distinction of sex.6 Are we to assume that the Rabbis are apprehensive of unchaste thoughts, and that R. Judah is not? But we know in fact that they both hold the reverse, for we learnt:7 The Priest seizes her garments,8 it does not matter if they are rent or torn open, until he uncovers her bosom and unloosens her hair. R. Judah said: If her bosom was beautiful, he did not expose it, and if her hair was comely, he did not loosen it,9 Rabbah said: In the other case, this was the reason: lest she should come forth from the Beth din innocent and the young priests conceive a passion for her; but here, she is about to be executed! And should you object, But through her their passions might be inflamed for others, Rabbah said: We have it on tradition that evil inclination moves a man only towards what his eyes see.
Raba said: Is there only an inconsistency between R. Judah's two statements and not between those of the Rabbis?10 - But, said Raba, R. Judah's two statements are not contradictory, even as we have solved the difficulty. And the Rabbis' views are also not opposed: Scripture says, That all women may be warned and not to do after your lewdness:11 but here, no greater warning is possible than this [sc. the execution].12 And should you say, Let us wreak both13 upon her, behold R. Nahman said in Rabbah b. Abbahu's name: Scripture says Love thy neighbour as thyself:14 choose an easy death for him.15
Shall we say that R. Nahman's statement is the subject of a conflict between Tannaim?16 - No: all agree with R. Nahman, but they differ on the following point: One Master17 holds that [the avoidance of] personal humiliation is far preferable to lack of bodily pain,18 and the other holds the reverse.
MISHNAH. THE PLACE OF STONING WAS TWICE A MAN'S HEIGHT.19 ONE OF THE WITNESSES PUSHED HIM BY THE HIPS, [SO THAT] HE WAS OVERTURNED ON HIS HEART. HE WAS THEN TURNED ON HIS BACK.20 IF THAT CAUSED HIS DEATH, HE HAD FULFILLED [HIS DUTY];21 BUT IF NOT, THE SECOND WITNESS22 TOOK THE STONE23 AND THREW24 IT ON HIS CHEST. IF HE DIED THEREBY, HE25 HAD DONE [HIS DUTY]; BUT IF NOT, HE [THE CRIMINAL] WAS STONED BY ALL ISRAEL,26 FOR IT IS WRITTEN: THE HAND OF THE WITNESSES SHALL BE FIRST UPON HIM TO PUT HIM TO DEATH, AND AFTERWARDS THE HAND OF ALL THE PEOPLE.27
GEMARA. A Tanna taught: And with his own height,28 there were three [men's heights] in all. Yet do we really require so much height?29 For the following contradicts it: 'Just as a pit to be reckoned as causing death must be ten handbreadths [deep],30 so must all other [excavations] be sufficient to cause death, viz., ten handbreadths'?31 - R. Nahman said in Rabbah b. Abbahu's name: Scripture states, Love thy neighbour as thyself;32 i.e., choose an easy33 death for him. But if so, it [sc. the place of stoning] should be still higher! - [That, however, is not so] to prevent disfiguration.34
ONE OF THE WITNESSES PUSHED HIM: Our Rabbis taught: Whence do we know that it [the execution]35 was accomplished by hurling down?36 - Scripture states, And he shall be cast down.37 And whence the necessity of stoning? - Scripture states, He shall be stoned.38 And whence do we know that both stoning and hurling down [were employed]?39 - From the verse, he shall surely be stoned or thrown down.40 And whence do we know that if he died through being hurled down, it is enough? - Scripture states, or cast down.41 Whence do we know the same procedure is to be followed for [all subsequent] generations?
(1) In a separate pronoun, instead of using the pronominal suffix.
(2) Deut. XVII, 5, with reference to idolatry which is punishable by sinning.
(3) I.e., a man.
(4) I.e., a woman.
(5) Who requires only partial covering of a woman.
(6) Since 'Otho' serves for one exclusion, that of clothes - it cannot serve as excluding women from that requirement, v. supra 43a.
(7) Sotah 8a.
(8) In connection with the procedure for a woman suspected of infidelity (sotah). Cf. Num.V, 11ff.
(9) Hence it is R. Judah and not the Rabbis who are apprehensive that the sight of her may incite to unchaste thought.
(10) For Rabbah's distinction only reconciled R. Judah's two views, but left the difficulty of the Rabbis' views untouched.
(11) Ezek. XXIII, 48. The procedure with the Sotah therefore was only instituted as a deterrent.
(12) Hence there is on need to add humiliation.
(13) Humiliation and stoning.
(14) Lev. XIX, 18.
(15) One entailing as little humiliation as possible.
(16) R. Judah and the Sages, inasmuch as the former, by requiring only partial covering of the woman and so enhancing her humiliation, does not seem to be of that opinion.
(17) I.e., the Sages.
(18) Lit., 'bodily ease'. Though being clothed delays death and increases pain, yet the humiliation of nakedness is harder to beat.
(19) I.e., six cubits, the normal height of man to the shoulders being three cubits,
(20) To see whether the drop brought his death forthwith. [So Abraham de Boton on Maim. Yad, Sanh. XV, 1. Rashi explains: Because it is degrading (for the dead) to be on the face, v. Tosaf. Yom. Tob. The rendering could accordingly be: One of the witnesses pushed him down on the hips. If (however) he overturned (i.e., fell) on his heart, he was turned on his back, v. Hoffmann.]
(21) I.e., the witness, the obligation of execution lying primarily upon him.
(22) According to the Naples ed. he himself takes etc. and only if that failed to cause death did the second witness take part.
(23) 'The' stone, because it was prepared beforehand. This was a very heavy stone, which it required two men to lift.
(24) Lit., 'placed'.
(25) Sc., the second witness.
(26) I.e., all the bystanders.
(27) Deut. XVII, 7.
(28) He was pushed down from a standing position.
(29) To cause instant death.
(30) Cf. M. B.K. 50b.
(31) Why is the height of three men required in this case?
(32) Lev. XIX, 18.
(33) I.e., a quick death.
(34) A fall from a greater height would unnecessarily disfigure the body.
(35) Of those who approached Mt. Sinai, Ex. XIX, 12ff.
(36) In Scripture stoning is first mentioned, as that was the means of bringing about the actual death. Here hurling down is dealt with first as that is preliminary to the other.
(37) Ex. XIX, 13.
(38) Ibid; cf. Deut. XXII, 24, where stones are expressly mentioned in connection with 'stoning',
(39) In case death did not result from the hurling down alone.
(41) Because if stoning were always necessary in addition to the hurling down, even when the latter alone had caused death, why state or cast down?
Talmud - Mas. Sanhedrin 45b
- Because Scripture states, He shall surely be stoned.1
BUT IF NOT, THE SECOND WITNESS TOOK THE STONE. HE TOOK'?2 But has it not been taught: R. Simeon b. Eleazar says: 'A stone was there which it took two men to lift, - he lifted that and dropped it on his [the victim's] chest; if it killed him, his duty was fulfilled'?3 But on your reasoning, that itself is inconsistent! That 'which it took two men to lift' - 'he lifted that and dropped it on his chest!' But it must mean that he lifts it up together with his fellow witness, but drops it [down] by himself in order that it may come down with force.4 BUT IF NOT, HE WAS STONED BY ALL ISRAEL, etc. But has it not been taught: It [the stoning] was never actually repeated?5 - Do I then say that it was done? I merely state what might be necessary!
The Master said: 'A stone was there etc.'6 But has it not been taught: 'The stone with which he [the condemned] was stoned, the gallows on which he was hanged, the sword with which he was beheaded, or the cloth with which he was strangled, are all buried with him'?7 - It merely means that others were prepared and brought in their place.8 'They are all buried with him.' Surely it has been taught: They are not buried with him!9 - R. Papa explained: What is meant by 'with him?' In the earth surrounding his corpse.10
Samuel said: If the hand[s] of the witnesses were cut off,11 he [the condemned] goes free. Why so? - Because it is necessary that The hand of the witnesses shall be first upon him,12 which is here impossible. But according to this, if they were without hands from the outset,13 are they also ineligible?14 - There15 it is different, for Scripture states, The hand of the witnesses, implying, the hand which they had previously possessed.16
An objection is raised; 'Wherever two witnesses testify, saying, We testify against so and so17 that he was sentenced by such and such a court, and so and so are his witnesses, he is to be executed'.18 - Samuel explained this as referring to a case where the same were also the original witnesses.19 But must [every] verse be [carried out] as written? Has it not been taught: 'He that smote him shall surely be put to death, he is a murderer?20 I only know that he may be executed with the death that is decreed for him.21 But where it is not possible to execute him in the manner prescribed,22 whence do I know that one may execute him by any means possible? From the verse: He that smote him shall surely be put to death, - in all cases'?23 - There it is different, for Scripture says, He shall surely be put to death.24 Then let us draw an inference from it.25 - Because the references to a murderer, and the 'avenger of blood' are two verses written with the same object, and the teaching of two such verses does not extend to anything else.26 'A murderer', as has just been stated. And what is the reference to the 'avenger of blood'? - It has been taught: The avenger of blood shall himself put the murderer to death;27 it is [primarily] the duty of the avenger of blood [to slay the murderer]. And whence do we know that, if he [the murdered man] has no avenger of blood,28 the Beth din must appoint one?29 - From the verse, When he meeteth him,30 i.e., in all cases.31
Mar Kashisha, the son of R. Hisda, said to R. Ashi: But are we really not to interpret the verse literally? Have we not learnt: If either of them32 has a hand or fingers cut off, or is dumb, lame, blind, or deaf, he does not become a 'stubborn and rebellious son';33 because it is written, And they shall lay hold on him,34 - this excludes those with hands or fingers cut off; and they shall bring him out, so excluding lame [parents]; and they shall say, excluding the dumb; this our son,35 excluding the blind; he will not obey our voice, excluding the deaf.36 Why so? Surely because a verse must be literally interpreted! - No. There it is different, because the entire verse is superfluous.37
Come and hear! If it [the city] has no 'public square',38 it cannot become a condemned city: this is R. Ishmael's view. R. Akiba said: If it has no public square, one is made for it.39 Now, they differ only in that one holds that 'the public square thereof'40 implies, that it must have been there from the outset [i.e., before sentence]; and the other holds that 'the public square thereof', even if it has only now [sc. after sentence] become one, is to be regarded as though it had been one originally. Yet both agree that the verse must be interpreted literally! - It is a point of difference between Tannaim, for we learnt:41 If he has no thumb or great toe or right ear, he can never obtain cleansing. R. Eliezer said: He [the priest] applies it [the blood] on the corresponding place, and his duty is discharged. R. Simeon said: He applies it on the left side and his duty is discharged.42
MISHNAH. ALL WHO ARE STONED ARE [AFTERWARDS] HANGED: THIS IS R. ELIEZER'S VIEW, THE SAGES SAY: ONLY THE BLASPHEMER AND THE IDOLATER ARE HANGED. A MAN IS HANGED WITH HIS FACE TOWARDS THE SPECTATORS, BUT A WOMAN WITH HER FACE TOWARDS THE GALLOWS: THIS IS THE VIEW OF R. ELIEZER. BUT THE SAGES SAY: A MAN IS HANGED, BUT NOT A WOMAN. WHEREUPON R. ELIEZER SAID TO THEM: BUT DID NOT SIMEON B. SHETAH HANG WOMEN AT ASHKELON?43 THEY RETORTED: [ON THAT OCCASION] HE HANGED EIGHTY WOMEN, NOTWITHSTANDING THAT TWO [MALEFACTORS] MUST NOT BE TRIED ON THE SAME DAY.44
GEMARA. Our Rabbis taught: [Scripture states,] And if he be put to death, then thou shalt hang him on a tree:45 I might think that all who are put to death are to be hanged: therefore Scripture states, For he is hanged [because of] a curse against God.46 Just as the blasphemer in question is executed by stoning, so all who are stoned [must be subsequently hanged]: this is R. Eliezer's view. But the Sages say: Just as the blasphemer in question denied the fundamental principle [of faith].47 So all who deny the fundamental principle [of faith].48 Wherein do they differ?49 - The Rabbis50 employ [the rule of] the general and the particular; whilst R. Eliezer employs [the rule of] extension and limitation.51 'The Rabbis employ [the rule of] the general and the particular.' [Thus:] And if he be put to death then thou shalt hang him, is a general proposition; for he is hanged [because of] a curse against God is the particular. Now, had these two clauses been placed beside each other,52 we should have said, the general includes nothing [but] the particular, i.e., only this man53 and no one else.
(1) In the future tense. [Ms. M. adds 'or he shall surely be thrown down.']
(2) Was it done by one man alone?
(3) Obviously two people were required to handle it.
(4) Because if two threw it they might not both follow exactly the same direction with a consequent loss of force.
(5) Death having always resulted from the first operation.
(6) Implying that the same stone was regularly employed for stoning.
(7) A.Z. 62b.
(8) I.e., that a stone was lying there in readiness, and not brought just at the moment when it was needed.
(9) Tosef. Sanh. IX.
(10) Which comes to be regarded as part of the body and must be carried with it when moved. Cf. Nazir 64b.
(11) After they testified.
(12) Deut. XVII, 7.
(13) Before they testified.
(14) Seeing that the injunction in Deut. XVII, 7 cannot in their case be applicable.
(15) In the case dealt with by Samuel.
(16) But if they lack hands at the outset they are eligible to testify.
(17) If the condemned person escaped and was recaptured (Mak. 7a).
(18) Even in the absence of the original witnesses. This proves that the injunction in Deut. XVII, 7 is not indispensably essential, but only desirable when possible.
(19) Hence the injunction can be carried out.
(20) Num. XXXV, 21,
(21) I.e., decapitation by the sword.
(22) E.g., if he fled, but could be reached by an arrow (Rashi on 72b).
(23) Infra 53a; 72b. Hence it is not necessary to understand the verse literally.
(24) מות יומת. The infinitive strengthens the idea of the verb and denotes an inclusion of other modes of execution if necessary.
(25) That just as there, where he should be decapitated, he is nevertheless executed by any means possible, so here too, where he should be hurled down by the hands of the witnesses, he is still to be executed even if their hands have been cut off.
(26) V. p. 458, n. 9.
(27) Num. XXXV, 19, referring to wilful murder. Rashi's interpretation that it refers to accidental homicide where the murderer was found outside the city of refuge is difficult. V. Mishneh Lemelek on Yad, Rozeah I, 2.
(28) A near kinsman, upon whom devolves the duty of hunting down a murderer to death.
(29) I.e., the Court is always responsible for prosecuting the murderer, whether there is a relative or not.
(31) Thus this verse too shows that the provisions of an avenging kinsman are not limited to the precise statement of the Bible,
(32) The parents of a 'stubborn and rebellious son'; Deut, XXI, 18ff.
(33) So the law concerning such is not operative.
(34) Ibid, 19.
(35) Showing that they must point him out.
(36) Who are unable to bear his reply to their orders. V. infra 71a.
(37) It could have been written thus: 'And they shall bring him unto the elders of his city, and all the men shall stone him with stones,' as is usual with other cases punishable by stoning, without repeating the indictment. Therefore that verse must certainly be understood literally; but it does not prove that all verses are to be understood exactly as they are written.
(38) Cf. Deut, XIII, 17: And thou shalt gather all the spoil of it into the midst of the public square thereof.
(39) Infra 112a,
(40) Cf. n. 5.
(41) Nazir 46b, with reference to the purification of a leper. Cf. Lev, XIV, 14:
(42) I.e., the leper becomes clean, This proves that in the opinion of R. Eliezer and R. Simeon a verse need not be understood literally, whilst the first Tanna maintains that it must be so interpreted. Hence Samuel agrees with the latter.
(43) Though this southern coastal city was never for any length of time populated by Jews, a fact which makes such an execution most unusual, it was twice surrendered to Jonathan the Maccabee (cf. Mace. X, 36; XI, 60) and later to Alexander Jannaeus (Simeon's brother-in-law). It is therefore not improbable that Jews made their home there, despite the view of Schurer. [V. Klausner, היסטוריה ישראלית II, 134. Derenbourg, however, op. cit., p. 69, n. 1, maintains that Simeon Maccabeus has been here confused with Simeon b. Shetah, as it was only in the days of the former that Ashkelon had a large Jewish population, and it is also known from other sources that he visited Ashkelon several times.]
(44) Hence this occurrence cannot be brought forward as a valid precedent, owing to its extraordinary nature. Witchcraft amongst Jewish women prevailed at that time to an alarming extent, and in order to prevent a combined effort on the part of their relations to rescue the culprits, he had to execute all of them at once. He hanged them, then, to prevent such practices and to avoid rescue, but his action is no precedent, and in itself was actually illegal, as the Sages pointed out.
(45) Deut. XXI, 22.
(46) קללת אלהים (E.V. For he that is hanged is a reproach unto God,) is so interpreted by the Mishnah, i.e., he was a blasphemer.
(47) I.e., the unity of God.
(48) Are to be hanged. 'All' can only mean an idolater.
(49) On what principle of exegesis - the practical difference, of course, being obvious,
(50) The Sages.
(51) These two hermeneutical rules form one of R. Ishmael's thirteen principles by which the law is expounded. The former rule כלל ופרט means that when a general term (which may denote an indefinite number of things) is followed by a particular (specifying a definite thing), the law is restricted to the specified thing alone. A particular is then regarded, not as an illustrative example of the preceding general, but as its explanation, so indicating that the content of the general is restricted solely to that of the particular. According to the other theory רבוי ומיעוט, the general retains its significance as applying to many things, but the particular limits the scope of the preceding general so as to include in it only things which are similar and to exclude such as are not similar thereto. The application of these exegetical principles, however, is dependent on the two terms following each other in the same passage. If they are found in two different passages, the rule is somewhat varied, as explained here in the Talmudic discussion.
(52) I.e., in the same verse.
(53) The blasphemer.
Talmud - Mas. Sanhedrin 46a
Since, however, they are separated from each other, it has the effect of including an idolater,1 who is like him, [the blasphemer] in every respect. 'Whilst R. Eliezer employs [the rule of] extension and limitation.' [Thus:] And if he be put to death then thou shalt hang him is an [indefinite] extension; for he is hanged because of a curse . . . is a limitation. Now, had these two clauses been placed beside each other, we should have extended the law only to an idolater, who is similar to him in every respect. Since, however, they are separated from each other, it has the effect of extending [the law] to all who are stoned.2
A MAN IS HANGED etc. What is the Rabbis' reason? - Scripture states, then the shalt hang him - 'him',3 but not her.4 And R. Eliezer?5 - 'Him' implies without his clothes. And the Rabbis?6 - [They admit that] that indeed is so; but Scripture says, And if a man have committed a sin,7 implying, a man, but not a woman. And R. Eliezer, - how does he interpret the words, And if a man have committed? - Resh Lakish answered: As excluding a stubborn and rebellious son8 [from that mode of execution]. But has it not been taught: A stubborn and rebellious son is stoned and [afterwards] hanged: so says R. Eliezer? - But, said R. Nahman b. Isaac: [He interprets it] as including a stubborn and rebellious son. How so?9 - Scripture says, As if a man has committed a sin - 'a man,' but not a son; 'a sin' implies one who is executed for his [present] sin, thus excluding a stubborn and rebellious son, who is executed on account of his ultimate destiny.10 So we have one exclusion following another, and such always indicates inclusion.11
WHEREUPON R. ELIEZER SAID TO THEM: BUT DID NOT SIMEON B. SHETAH HANG etc. R. Hisda said: They taught this12 only of two different death penalties,13 but if a single mode of execution is involved, they [two charges] may be tried [on the same day]. But in the instance of Simeon b. Shetah, only one mode of execution was involved, and yet [the Sages] said to him14 that the cases should not [legally] have been tried! - But if a statement was made, it was made thus: They taught this only of a single death penalty appearing as two. And how can that be? E.g., [when one is accused of] two different transgressions.15 But cases dealing with the same transgression and the same mode of execution may be tried.16
R. Adda b. Ahabah raised an objection: 'Two [capital] cases may not be tried in one day; not even that of an adulterer and his paramour'?17 R. Hisda explained this as referring to the daughter of a priest and her paramour;18 or to the daughter of a priest and the refuters of the refuting witnesses.19
It has been taught: R. Eliezer b. Jacob said: I have heard20 that the Beth din may, [when necessary,] impose flagellation and pronounce [capital] sentences even where not [warranted] by the Torah; yet not with the intention of disregarding the Torah but [on the contrary] in order to safeguard it.21 It once happened that a man rode a horse on the Sabbath in the Greek period and he was brought before the Court and stoned, not because he was liable thereto,22 but because it was [practically] required by the times.23 Again it happened that a man once had intercourse with his wife under a fig tree.24 He was brought before the Beth din and flogged, not because he merited it,25 but because the times required it.24
MISHNAH. HOW IS HE HANGED?26 - THE POST IS SUNK INTO THE GROUND WITH A [CROSS-] PIECE BRANCHING OFF [AT THE TOP].27 AND HE28 BRINGS HIS HANDS TOGETHER29 ONE OVER THE OTHER AND HANGS HIM UP [THEREBY]. R. JOSE SAID: THE POST IS LEANED AGAINST THE WALL,30 AND HE HANGS HIM UP AFTER THE FASHION OF BUTCHERS. HE IS IMMEDIATELY AFTERWARDS LET DOWN. IF HE IS LEFT [HANGING] OVER NIGHT, A NEGATIVE COMMAND IS THEREBY TRANSGRESSED, FOR IT IS WRITTEN, HIS BODY SHALL NOT REMAIN ALL NIGHT UPON THE TREE, BUT THOU SHALT SURELY BURY HIM THE SAME DAY FOR HE IS HANGED [BECAUSE OF] A CURSE AGAINST GOD,31 - AS IF TO SAY WHY WAS HE HANGED? - BECAUSE HE CURSED THE NAME [OF GOD]; AND SO32 THE NAME OF HEAVEN [GOD] IS PROFANED.33
R. MEIR SAID: 34 WHEN MAN SUFFERS,35 WHAT EXPRESSION DOES THE SHECHINAH36 USE? - MY HEAD IS TOO HEAVY FOR ME, MY ARM IS TOO HEAVY FOR ME.37 AND IF GOD IS SO GRIEVED OVER THE BLOOD OF THE WICKED THAT IS SHED, HOW MUCH MORE SO OVER THE BLOOD OF THE RIGHTEOUS! AND NOT ONLY OF THIS ONE [A CRIMINAL,] DID THEY [SC. THE SAGES] SAY IT,38 BUT WHOSOEVER LETS HIS DEAD LIE OVER NIGHT TRANSGRESSES A NEGATIVE COMMAND.39 IF HE KEPT HIM OVER NIGHT FOR THE SAKE OF HIS40 HONOUR, TO PROCURE FOR HIM A COFFIN OR A SHROUD, HE DOES NOT TRANSGRESS THEREBY.
AND THEY DID NOT BURY HIM [THE EXECUTED PERSON] IN HIS ANCESTRAL TOMB, BUT TWO BURIAL PLACES WERE PREPARED BY THE BETH DIN, ONE FOR THOSE WHO WERE DECAPITATED OR STRANGLED, AND THE OTHER FOR THOSE WHO WERE STONED OR BURNED.
WHEN THE FLESH WAS COMPLETELY DECOMPOSED, THE BONES WERE GATHERED AND BURIED IN THEIR PROPER PLACE.41 THE RELATIVES THEN42 CAME AND GREETED THE JUDGES AND WITNESSES, AS IF TO SAY, WE HAVE NO [ILL FEELINGS] AGAINST YOU IN OUR HEARTS, FOR YE GAVE A TRUE JUDGMENT.
(1) The separation indicates that the rule of the general and particular is not to be applied in the usual way to limit the law solely to the thing specified, but to extend it to some similar thing.
(2) Whatever their offence.
(3) A man.
(4) A woman.
(5) How does he interpret the verse?
(6) Do they not agree with the interpretation given by R. Eliezer; whence then do they deduce the exemption of a woman from hanging?
(7) Deut. XXI, 22, which is the introduction to the passage under discussion,
(8) The term 'man' is used of one who has reached the age of thirteen, and one cannot be declared rebellious once he has reached that age. V. infra 68b.
(9) Surely 'man' implies the reverse, if anything.
(10) V. infra 72a, top.
(11) V. p. 71, n. 7. Hence this includes a rebellious son.
(12) That two capital cases may not be tried on one day by the same court.
(13) Because where the crimes committed are different, the mitigating circumstances cannot be carefully brought forward to a hasty discussion.
(14) R. Eliezer, in answer to his remark.
(15) E.g., the desecration of the Sabbath and idolatry, although both are punishable by the same penalty - stoning. Two such cases may not be tried on the same day. All the more so cases involving two different modes of execution may certainly not be tried on the same day.
(16) But in the instance of Simeon the son of Shetah the women were convicted for what Scripture regards as two different branches of witchcraft, viz., necromancy and charming. Cf. Lev. XX, 27; hence the Rabbis remarked that his action was illegal, but that it was done in an emergency.
(17) Tosef, Sanh. VII. Although it is one transgression involving the same penalty; moreover, the crime of both consisted in the single identical act.
(18) Whose executions are not simiiar. The woman is punished by burning (Lev. XXI, 9) and the man by strangulation if she be a nesu'ah, or by stoning, if she be an arusah (v. Glos.).
(19) E.g., if A and B, who gave evidence against the daughter of a priest, were refuted by C and D, and the latter were afterwards themselves refuted by E and F, the woman undergoes her due death penalty - burning - since her refuting witnesses C and D were proved to be collusive, and the false witnesses are punished by the same penalty as the male adulterer (strangulation or burning, according to the status of the woman). V. infra 90a.
(20) From my teachers.
(21) Lit., 'to make a fence round it. '
(22) The prohibition against riding on the Sabbath is only a 'shebuth', l.e., a Rabbinical injunction. Cf. Bezah. 37a M.
(23) During the time that Palestine was under Greek rule there was great laxity in the Jews' adherence to their religion, and stringent measures had to be adopted to enforce observance (Rashi). [Cf. Derenbourg, Essai, p. 107.]
(24) I.e., in public.
(25) The law does not prescribe this punishment for such improper conduct. (11) I.e., loose morals prevailed at the time.
(26) After being stoned.
(27) This bears no resemblance at all to crucifixion. Cf. Rabbinowicz, Legislation criminelle du Talmud, p. 111: What a difference between this hanging after death, where the executed man had both his hands tied and did not remain one minute upon the gallows, and the Supplicium, which the Romans inflicted upon Jesus, who was nailed to the cross whilst alive, with his hands on the cross, and left hanging on the gallows all day.
(28) The first witness, Krauss, loc. cit.
(29) [מקיף, Me'iri reads סומך]
(30) And not fixed into the ground.
(31) Deut. XXI, 23. קללת אלהים is interpreted by the Mishnah as an objective genitive - 'a curse against God'.
(32) If his body be left hanging a considerable time, thus reminding men of his blasphemy.
(33) Man's sin reflecting, in a manner of speaking, on God.
(34) In interpretation of the words קללת אלהים.
(35) In consequence of sin, as those are who are executed in this instance.
(36) The word שכינה is omitted in most editions of the Mishnah. Where it is omitted, the definite article is added to the word לושן, and the phrase is translated, 'When man suffers, what does the tongue say?' [The tongue stands for the Divine, and some texts accordingly add here, "if it could be said', כביכול.]
(37) V. Gemara. The phrase is intended to express how painful it is to God when His children suffer, even though they may deserve punishment for their iniquities, as a father would deplore the pain of his sinful son.
(38) I.e., that the corpse must not be left hanging over night.
(39) Mentioned above.
(40) 'HIS' is ambiguous, and the Talmud on 47a discussed to whom it refers.
(41) I.e., the family vault.
(42) Soon after the execution.
Talmud - Mas. Sanhedrin 46b
AND THEY OBSERVED NO MOURNING RITES1 BUT GRIEVED [FOR HIM],2 FOR GRIEF IS BORNE IN THE HEART ALONE.
GEMARA. Our Rabbis taught: Had it been written, 'If he has sinned, then thou shalt hang him,' I should have said that he is hanged and then put to death, as the State does.3 Therefore Scripture says, And he be put to death, then thou shalt hang him - he is first put to death and afterwards hanged. And how is this done? - It [the verdict] is delayed until just before sunset. Then they pronounce judgment and put him [immediately] to death, after which they hang him; One ties him up and another unties [him],4 in order to full the precept of hanging.
Our Rabbis taught: [Then thou shalt hang him on] a tree:5 this I might understand as meaning either a cut or a growing tree; therefore Scripture states, Thou shalt surely bury him:6 [thus, it must be] one that needs only burial,7 so excluding that which needs both felling and burial.8 R. Jose said; [It must be] one that needs only burial, thus excluding that which requires both detaching and burial.9 And the Rabbis?10 - Detaching is of no consequence.11
AS IF TO SAY WHY WAS HE HANGED? - BECAUSE HE CURSED etc. It has been taught: R. Meir said: A parable was stated, To what is this matter comparable? To two twin brothers [who lived] in one city; one was appointed king, and the other took to highway robbery. At the king's command they hanged him. But all who saw him exclaimed, 'The king is hanged!'12 whereupon the king issued a command and he was taken down.
R. MEIR SAID etc. How is that implied?13 - Abaye answered: It is as though one said: It is not light.14 Raba objected: If so, he [the Tanna] should have said: My head is heavy upon me, my arm is heavy upon me!15 Raba therefore explained it thus: It is as though one said: Everything is light16 to me. But this [the word Kilelath] is needed for its own purpose!17 - If so, Scripture should have stated 'mekallel:'18 why 'kilelath'!19 Then perhaps the entire verse was written for that purpose?20 - If so, it should have stated, 'killath:'21 why 'kilelath'.22 Hence both [meanings] are inferred from it.
AND NOT ONLY OF THIS ONE etc. R. Johanan said on the authority of R. Simeon b. Yohai: Whence is it inferred that whoever keeps his dead [unburied] over night transgresses thereby a negative conmmand?23 - From the verse, Thou shalt surely bury him;24 whence we learn that he who keeps his dead [unburied] over night transgresses a prohibitory command. Others state: R. Johanan said on the authority of R. Simeon b. Yohai: Where is burial [as a means of disposing of the dead] alluded to in the Torah? - In the verse, Thou shalt surely bury him: here we find an allusion to burial in the Torah.
King Shapor25 asked R. Hama: From what passage in the Torah is the law of burial derived? The latter remained silent, and made no answer. Thereupon R. Aba b. Jacob exclaimed: The world has been given over into the hands of fools, for he should have quoted, For thou shalt bury!26 - [That is no proof, since] it might merely have meant, that he should he placed in a coffin!27 But it is also written, Bury, thou shalt bury him.28 - He [King Shapor] would not have understood it thus.29 Then he should have proved it from the fact that the righteous were buried!30 - [He might object.] That was merely a general custom.31 Well then, from the fact that the Holy One, blessed be He, buried Moses!32 - But, [he might answer,] that was so as not to depart from the general custom. But come and hear! And all Israel shall make lamentation for him and they shall bury him.33 - That [too] might have been done so as not to depart from the general custom. [But again it is written,] They shall not be lamented, neither shall they be buried; they shall be as dung upon the face of the ground?34 - The purpose of that, however, might have been to depart from the established custom.35
The scholars propounded : Is burial [intended to avert disgrace.36 or a means of atonement?37 What is the practical difference? If a man said, 'I do not wish myself38 to be buried.' If you say that it is to prevent disgrace, then it does not depend entirely upon him;39 but if it is for atonement, then in effect he has declared, 'I do not desire atonement.'40 What [then is its purpose]? Come and hear! 'From the fact that the righteous were buried.' If then you say that it is for atonement - are the righteous in need thereof? Even so, for it is written, For there is not a righteous man upon earth who doeth good and sinneth not.41
Come and hear! [It is written,] And all Israel shall make lamentations for him, and they shall bury him, for only he of Jeroboam shall come to the grave.42 Now should you assert [that burial] is for the attainment of forgiveness, then the others too should have been buried, that there might be atonement for them? - This one [sc. Abijah], who was righteous, deserved to find forgiveness, but the others were not [worthy] to attain it.
Come and hear! They shall not be lamented neither shall they be buried.43 - [It may be precisely] in order that there might be no atonement for them.
The scholars asked: Is the funeral oration in honour of the living or of the dead? What is the practical difference? If the deceased had said, Pronounce no funeral oration over me;44 or again in respect of collecting [the cost] from the heirs!45 - Come and hear! And Abraham came46 to mourn for Sarah and to weep for her.47 Now, should you maintain that it is no honour of the living: in that case for Abraham's honour he delayed Sarah's [burial]! - [There] Sarah herself was pleased that Abraham should attain honour through her.
Come and hear! And all Israel shall make lamentation for him and they shall bury him:48 If you say that it is in honour of the living, were these [Abijah's relatives] worthy of honour?49 - It is pleasing to the righteous that people50 should be honoured through them.
Come and hear! They shall not be lamented neither shall they be buried!51 - The righteous do not wish to be honoured through evil-doers.
Come and hear! They shall die in peace, and with the burnings of thy fathers, the former kings that were before thee, so shall they make a burning for thee, and they shall lament thee, saying Ah! Lord.52 Now if you maintain that it is in honour of the living, of what consequence was this to him?53 - He spoke this to him: Israel will be honoured through thee, as they were honoured through thy parents.54
(1) E.g., the seven and thirty days and the twelve months, v. M. K. 20a.
(2) As, in ordinary cases, before the burial.
(3) V. supra p. 304, n. 2.
(4) I.e., no sooner is he hung up, than he is untied and taken down.
(5) Deut. XXI, 22.
(6) The need of burial for the post is deduced from the strengthening of the idea of the verb by the infinitive, קבר תקברנו, v. supra 45b.
(7) Such as a detached post.
(8) E.g., a growing tree.
(9) I.e., excluding a post which is driven into the earth, because it must be detached thence before it can be buried. Therefore he maintains that it must not be fixed in the ground, but merely leaned against the wall.
(10) Do they not admit the justice of R. Jose's arguments, and if so, why do they assert that the post is driven into the earth?
(11) I.e., it is not a weighty action which constitutes a real delay of burial.
(12) Being twins their appearance was similar. So man has some resemblance to God, having been created in His image. Cf. Gen. V, 1.
(13) R. Meir's explanation of the word קללת.
(14) קל לית.
(15) Using the positive adjective כבד instead of the negative, 'not light'.
(16) Euphemistically for heavy, as no one is inclined to speak evil in connection with his own person. (Rashi). Kohut explains it as meaning that when one is in trouble he cannot pull himself together, and is in a state of light headedness or giddiness. V. 'Aruch. vol. VII, p. 90, n. 4.
(17) As indicating that the law refers to a 'blasphemer', v. supra p. 300, n. 4.
(18) Which is the exact Hebrew for 'blasphemer'; (cf. Lev. XXIV, 14: Bring forth him that hath cursed, i.e., the blasphemer - Heb. מקלל).
(19) Which, though it may mean 'a curse (against God),' (v. p. 304, n. 6), is not as unambiguous as mekallel. Hence it must have been chosen because both meanings can be understood in it.
(20) Which R. Meir deduces from it, according to Raba; how then do I know that it refers to a blasphemer at all? It may refer to any criminal.
(21) קלת; 'the lightness of'.
(22) Which also implies blasphemy.
(23) His body shall not remain all night: Deut. XXI, 23, which in the first place was stated in reference to those executed by the Court.
(24) The infinitive indicates that the command concerns all dead, not only those executed by the Court.
(25) [Shapor II, King of Persia, 359-380, transferred the royal residence to Csetifon, and there came in contact with Jewish sages, v. Obermeyer, op. city., p. 175.]
(26) Ibid. 23.
(27) LIt., 'that a coffin should be made for him.' The verse does not necessarily imply that the corpse must be placed in the ground - so, at least, it might be urged.
(28) קבור תקברנו, and the emphatic infinitive must imply burying in the earth.
(29) I.e., a Gentile would not have understood the principle underlying the deduction.
(30) Thus it is related in Scripture that the Patriarchs were buried.
(31) Prior to the giving of the law, and so has no basis in the Torah.
(32) Cf. Deut. XXXIV, 6.
(33) I Kings XIV 13, with reference to Abijah the son of Jeroboam I, King of Israel, who was seriously ill. The fact that he would come to his grave in peace and be mourned by all Israel was foretold to his mother by the Prophet Ahijah, whom she consulted respecting his recovery. Hence it is evident that burial was an established practice after the giving of the law also.
(34) Jer. XVI, 4. Hence non-burial was regarded as a punishment for the wicked.
(35) Which would thus be a great disgrace. Kohut accounts for this discussion being raised on the part of the Persian King Shapor by the fact that the ancient Persians regarded burial as a desecration of the soil, which they looked upon as sacred. V. 'Aruch. Vol. I, p. 271 s.v. ארגז.
(36) Decomposition and putrefaction make the dead loathsome: burial may be intended to spare them and their relatives the disgrace.
(37) For the sins committed during life-time Cf. infra 47a, where it is stated that the process of decay in the earth is a means of expiation.
(38) Lit., 'that man'.
(39) Because his relatives are humiliated along with him.
(40) And so, even if he is buried, he does not attain forgiveness.
(41) Eccl. VII, 20
(42) I Kings XIV, 13, referring to Abijah, the son of Jeroboam.
(43) Jer. XVI, 4, i.e., if burial is a means of expiation, why should they too not attain it?
(44) If it is in honour of the living, he has no power to object; on the other hand, the heirs can then dispense with it.
(45) If it is in honour of the dead, they are obliged to pay for a funeral oration, even against their desire,
(46) From Mt. Moriah, the scene of the binding of Isaac.
(47) Gen XXIII, 2.
(48) I Kings XIV, 13.
(49) Seeing that the whole family of Jeroboam, with the exception of Abijah, were wicked.
(50) I.e., the people as a whole even outside the immediate family circle.
(51) Jer. XVI, 14. If lamentation is in honour of the living, why were the righteous who survived them deprived of that honour?
(52) Jer. XXXIV, 5; a prophecy to Zedekiah, the last king of Judah.
(53) Zedekiah, that Israel would be honoured.
(54) It may be observed, both here and in the following passage, that if the deceased is a king, the honour of the living, if that is the purpose of the funeral eulogy, extends beyond his immediate family circle and embraces the people as a whole.
Talmud - Mas. Sanhedrin 47a
Come and hear! In whose eyes a vile person is despised1 - this refers to Hezekiah, king of Judah, who had his father's remains dragged upon a pallet made of ropes.2 But if it [the respect paid to the dead] is in honour of the living, why [did he do so]?3 - It was in order that his father might obtain forgiveness. And for the sake of his father's atonement he disregarded4 the honour of Israel! - Israel itself was pleased to have its honour violated for his sake.
Come and hear! He5 said to them:6 Do not hold funeral orations over me in the [small] towns.7 Now, should you maintain that it is in honour of the living, what did it matter to him? - He wished that Israel might be honoured through him, in greater measure.
Come and hear! IF HE KEPT HIM OVER NIGHT FOR THE SAKE OF HIS HONOUR, TO PROCURE FOR HIM A COFFIN OR A SHROUD HE DOES NOT TRANSGRESS THEREBY. Now surely that [sc. FOR THE SAKE OF HIS HONOUR] means, for the honour of the dead?8 - No: for the honour of the living. And for the sake of the honour of the living the dead is to be kept overnight! - Yes When did the Merciful One say, His body shall not remain all night upon the tree,9 only in a case similar to be hanged, where it [the keeping of the corpse] involves disgrace;10 but here, where there is no disgrace11 it does not apply.
Come and hear! If he [the relative] kept him overnight for his own honour, so as to inform the [neighbouring] towns of his death, or to bring professional women mourners for him,12 or to procure for him a coffin or a shroud, he does not transgress thereby, for all that he does is only for the honour of the deceased!13 - What he [the Tanna] means is this: Nothing that is done for the honour of the living involves dishonour to the dead.
Come and hear! R. Nathan said: It is of good omen for the dead when he is punished [in this world] after death. E.g., if one dies and is not mourned, or [properly] buried, or if a wild beast drags him along, or if rain drips down on his bier, it is a good omen for him.14 We may infer therefore from this that the funeral rites are in honour of the dead.15 This proves it.
AND THEY DID NOT BURY HIM etc. And why such severity?16 - Because a wicked man may not be buried beside a righteous one. For R. Aha b. Hanina said: Whence is it inferred that a wicked man may not be buried beside a righteous one? - From the verse, And it came to pass as they were burying a man that behold they spied a band and they cast the man into the sepulchre of Elishah, and as soon as the man touched the bones of Elishah, he revived and stood up on his feet.17 Said R. Papa to him, Perhaps that was only to fulfil [the request], Let a double portion of thy spirit be upon me?18 - Thereupon he retorted: If so, what of that which was taught: [He only] arose on his feet, but did not return home?19 Then what of, Let a double portion of thy spirit etc. where is it found that he resurrected [two people]? - As R. Johanan said: He healed the leprosy of Naaman,20 which is the equivalent of death, as it is written, Let her not, I pray Thee, be as one dead.21
And just as a wicked person is not buried beside a righteous one, so is a grossly wicked person not to be buried beside one moderately wicked. Then should there not have been four graveyards?22 - It is a tradition that there should be but two.
'Ulla said in R. Johanan's name: If one ate forbidden fat23 and thereupon dedicated a sacrifice,24 abjured his faith, but subsequently returned, since it [the offering] has [once] been invalidated,25 it remains so. It has been stated likewise: R. Jeremiah said in the name of R. Abbahu in R. Johanan's name; If one ate forbidden fat and thereupon dedicated a sacrifice, became insane, but later recovered, since it [the sacrifice] has once been invalidated.26 it remains so. And both rulings are necessary. For had he taught us the first one only, [one might have assumed that] it is because he had rendered himself unfit [to offer a sacrifice] by his own action;27 but as for the latter case [insanity], where he was automatically unfitted, I might say that he is [merely] as a person who has slept [in the meantime].28 Again, had he taught us only the latter, [one might have thought that] it was because it was not in his power to recover; but there [in the case of apostasy], since it was in his power to return, one might say that it does not [remain invalidated]. Both rulings are therefore necessary.
R. Joseph said: We too have learnt similarly: If there are holy objects therein,29 that which is dedicated to the altar [i.e.. sacrifices] must die;30 to the Temple repair, must be redeemed.31 Now we pondered thereon, Why should they die? Since they [the inhabitants of the condemned city] are executed, they obtain forgiveness: should they [the sacrifices] not then be offered to Heaven!32 Surely then is it not so because we hold that once invalidated, they remain so? Abaye retorted; Do you then think that he who dies in his wickedness obtains forgiveness [by his death]? Nay, he who dies in his wickedness does not obtain forgiveness, for R. Shemaiah learnt: One might have thought that even if his [the priest's] parents had dissociated themselves from the practices of the congregation,33 he [the priest] may defile himself:34 but Scripture states, among his people35 teaching, that it is so provided he [the parent] has followed the practices of his people.36 Said Raba to him: Dost thou compare one who was executed in his wickedness to one who died in his wickedness? In the latter case, since he dies a natural death, he attains no forgiveness;37 but in the former, since he does not die a natural death, he obtains forgiveness [by the mere execution]. In proof thereof, it is written, A Psalm of Asaph, O God, the heathen are come into Thine inheritance; they have defiled Thy Holy Temple... They have given the dead bodies of Thy servants to be food unto the fowls of the heaven; the flesh of Thy saints onto the beasts of the earth.38 Who are meant by 'Thy servants,' and who by 'Thy saints'? Surely 'thy saints' means literally, saints, whereas, 'thy servants' means those who were at first liable to sentence [of death], but having been slain, are designated 'servants'.39 Abaye retorted: Would you compare
(1) Ps. XV, 4. in answer to the question in verse 1: Who shall sojourn in Thy Tabernacle?
(2) A rude bed made out of ropes so depriving him of a kingly burial, his object being to show that the deceased deserved contempt because of his wickedness in spreading heathendom in Israel. The act could not be viewed as transgression of the fifth commandment, as the latter does not apply to a father who is wicked. - V. Yeb. 22b on the verse, Nor curse a prince among thy people (Ex. XXII, 27). - Again, he did not consider his own honour, as is deduced from the verse quoted above.
(3) Surely he had no right to deprive the living of their due.
(4) Lit., 'delayed'.
(5) R. Judah, the Prince (135-220 C.E.), who died in Sepphoris and was carried to Beth She'arim for burial. V. Keth. 103a.
(6) His sons. So Rashi. From the context in Keth. it appears that the request among other testamentary wishes, was made to the Sages.
(7) But only in the more important towns where there would be larger audience.
(8) Hence it follows that anything done in connection with the dead is for the honour of the dead.
(9) Deut. XXI, 22, in connection with the criminal from whom this procedure has been deduced for all other dead.
(10) I.e., the longer the body remains exposed, the greater the disgrace; and even in the case of an ordinary person, if the funeral is delayed without cause, but simply out of neglect, it is likewise accounted a disgrace to the dead, therefore it is forbidden.
(11) The delay not being due to neglect (v. preceding note), but to the needs of the living.
(12) V. Jer. IX, 16, and cf. M. K. III, 9.
(13) Hence it follows that funeral orations are for the deceased's honour.
(14) That his sins will be forgiven.
(15) For otherwise why should any such disgrace have an atoning effect?
(16) As to have two burial grounds.
(17) II Kings XIII, 21. According to tradition, the man buried was the old prophet of Beth-El (I Kings XIII, 1; v. infra p. 312, and note a.l.). Hence it is seen that it is not the Divine Will to have a wicked man buried with a righteous.
(18) II Kings II, 9. This was Elishah's request of Elijah. Hence, since the latter had restored one person from death (cf. I Kings XVII, 22), Elishah should have restored two, whereas he had as yet restored but one - the son of the Shunamite (II Kings IV) Thus this incident does not prove that a wicked man may not be buried beside a good man.
(19) I.e he did not live for more than a few minutes: surely that is not a fulfilment! Hence the reason of the man's momentary resurrection must have been because the wicked must not be buried beside the righteous.
(20) V. II Kings V.
(21) Num XII, 12, with reference to Miriam, who was stricken with leprosy.
(22) One for each mode of execution since these varied in severity.
(23) V. Lev. III, 17.
(24) To atone for his sin. Cf. Lev. IV, 27-28.
(25) Lit., 'repelled'. Sacrifices are not accepted from apostates Cf. Hul. 5b.
(26) Because he lacked the intelligence to be cognisant of his doing. v. 'Ar. 21a.
(27) In becoming a apostate.
(28) Where no suspension is caused by the normal intermediary gap in one's intelligent consciousness.
(29) The condemned city, all the property of which save holy things, have to be destroyed. Deut XIII, 16.
(30) Even though not destroyed, they cannot he offered, v. infra 112b.
(31) Just as all other objects intended for the repair-fund.
(32) Lit., 'the (most) High'. Since after death their offerings cannot be classed as offerings of the wicked
(33) E.g., if they (the parents) had been apostates.
(34) Through their dead bodies, attending in their funerals, etc.
(35) The whole passage reads: 'Speak unto the priests the sons of Aaron, and say unto them, There shall none be defiled for the dead among his people. But for his kin, that is near unto him, that is, for his mother, and for his father etc. Lev. XXI, 1-2. By linking 'among his people' (as interpreted here) with the following verse, 'But for his kin, etc.' it is deduced that only then may a priest defile himself, but not if his parents were, e.g., apostates.
(36) Hence death does not bring forgiveness if one had died in his wickedness.
(37) By mere death without repentance.
(38) Ps. LXXIX, 1-2.
(39) Having attained expiation through execution.
Talmud - Mas. Sanhedrin 47b
those who are slain by a [Gentile] Government,1 to those who are executed by the Beth din? The former, since their death is not in accordance with [Jewish] law, obtain forgiveness; but the latter, whose death is justly merited, are not [thereby] forgiven. This can also he proved from what we learnt: THEY DID NOT BURY HIM IN HIS ANCESTRAL TOMB. And if you should imagine that having been executed, he attains forgiveness: he should be buried [with his fathers]! - Both death and [shameful] burial2 are necessary [for forgiveness].3
R. Adda b. Ahabah objected: THEY OBSERVED NO MOURNING RITES, BUT GRIEVED FOR HIM FOR GRIEF IS BORNE ONLY IN THE HEART. But should you think that having been [shamefully] buried, he attains forgiveness, they should observe mourning rites! - The decay of the flesh too is necessary.4 This also follows from what he [the Tanna] teaches: WHEN THE FLESH WAS COMPLETELY DECOMPOSED, THE BONES WERE GATHERED AND BURIED IN THEIR PROPER PLACE.5 This proves it.
R. Ashi said: When do the mourning rites commence? From the closing of the grave with the grave stone.6 When is atonement effected? After the bodies have experienced a little of the pains of the grave.7 Therefore, since they [the mourning rites] have once been suspended,8 they remain so. If so, why must the flesh be consumed?9 - Because it is impossible [otherwise].10
It was the practice of people to take earth from Rab's grave and apply it [as a remedy] on the first day of an attack of fever. When Samuel was told of it,11 he said: They do well; it is natural12 soil, and natural soil does not become forbidden, for it is written, And he cast the dust thereof13 upon the graves of the common people:14 thus he compares the graves of the common people to idols. Just as [the use of] idols is not forbidden when they are 'attached,'15 for it is written, [Ye shall utterly destroy all the places, wherein the nations] that ye are to dispossess served their gods, upon the high mountains,16 their gods which are upon the high mountains [are forbidden for use], but not the mountains which themselves are their gods;17 so here too, what is 'attached' [i.e., what belongs to the dead] is not forbidden.
An objection is raised: 'If one hews a grave for his [dead] father and then goes and buries him elsewhere, he himself may never he buried therein'?18 - The reference here is to a built grave.19 Come and hear! 'A fresh grave20 may be used. But if an abortion had been laid therein, it is forbidden for use'?21 - Here too, the reference is to a built grave.
Come and hear! 'Thus we see22 that there are three kinds of graves:23 A grave that has been found;24 a known grave;25 and one which injures the public.26 A grave that has been found may be cleared;27 when cleared, the place thereof is [levitically] clean and permitted for use.28 A known grave may not be cleared; if it has been, the spot is unclean and forbidden for use.29 A grave which injures the public may be cleared; if it has been, the place thereof is clean but may not be used'?30 - Here too, the reference is to a built grave. But may a grave that was found be evacuated? Perhaps a meth-mizwah was buried therein; and a meth-mezwah takes possession of his place of burial!31 A meth-mizwah is quite different, since its existence is generally known.32
It has been stated: If one wove a shroud for a dead person: Abaye rules, it is forbidden;33 Raba says, It is permitted. 'Abaye rules, It is forbidden;' [he holds,] designation is a material act.34 'Raba says, It is permitted;' designation is not a material act. What is Abaye's reason? - He deduces [identity of law] from the use of 'sham' [there] both here [with reference to the dead] and in connection with the broken-necked heifer.35 Just as the broken-necked heifer becomes forbidden through designation,36 so this too37 becomes prohibited through designation. But Raba makes his deduction from the use of sham both here and in connection with idol-worship.38 Just as in idol-worship mere designation imposes no prohibition,39 so here too, it does not become forbidden through designation. But why does Raba not make his deduction from the broken-necked heifer? - He answers you:
(1) Such as that referred to in the Psalm.
(2) I.e in the criminals' graveyard.
(3) The inhabitants of the condemned city, therefore, having undergone both punishments, obtained forgiveness on this view, and their offerings could have been accepted, but for the reason that, having been once invalidated, they remained so.
(4) For forgiveness.
(5) Proving that only then is the crime fully expiated
(6) גולל from גלל 'to roll,' so called because it can be rolled away. This is not to be confused with the modern tombstone, but was a stone placed on top of the grave immediately it was filled in.
(7) The process of decay in the earth was believed to be painful to the body. Cf. Ber. 18b, 'The worm is as painful to the flesh of the dead, as the needle to the flesh of the living.
(8) In the interval between the covering of the grave and the experiencing of pains in the grave. Since forgiveness had not yet been obtained, the dead are yet accounted wicked, and therefore no mourning rites are necessary.
(9) Before they can bury him in the family vault.
(10) I.e., owing to the decomposition of the body, it is impossible to remove the remains before the flesh is completely destroyed.
(11) Thus calling his attention to their use of an object belonging to the dead, which is forbidden. Cf. A.Z. 29b.
(12) Lit., 'world'.
(13) Of the Ashera.
(14) II Kings XXIII, 6.
(15) The technical term for soil, mountains, etc., and things growing therein.
(16) Deut. XII, 2.
(17) I.e., only detached idols are forbidden for use, but if natural earth (which includes mountains) is worshipped, it is not thereby forbidden for use.
(18) Because having been prepared for a particular corpse, it may not be used for anyone else. Now, it is assumed that this holds good even if it was dug for any corpse, 'father' being mentioned merely because that is the usual thing. Thus we see that even natural soil is under the same prohibition.
(19) [A grave erected within the excavation (Yad Ramah).] Such a grave is not regarded as part of the soil, and, had it been prepared for any other person, would not have been forbidden. The prohibition here, however, is on account of filial respect.
(20) One just dug and not yet assigned to any dead body.
(21) The argument is that even natural soil must be forbidden.
(22) Lit., 'it is found that thou sayest.
(23) I.e., which are separate and distinct in the laws pertaining to them.
(24) One in which a dead body had been buried by stealth, and without the consent of the owner of the ground, i.e., it has only now been found to be a grave.
(25) In which a body was buried with the consent of the owner.
(26) E.g., which lies in a thoroughfare.
(27) I.e., the bones may be transferred elsewhere.
(28) Since the burial took place without the knowledge of the owner of the ground, the dead man does not 'take possession of the place' (v. infra for the meaning of that phrase).
(29) This is a precautionary measure against the unwarranted transference of bones.
(30) This proves that natural soil can also be prohibited.
(31) I.e., it becomes his, whether it had a right to the soil in the first place or not. This is one of the ten enactments of Joshua on entering the land. Cf B.K. 81a.
(32) Lit., 'he has a voice'. I.e., the discovery of such was broadcast, and his burial was not really a secret unknown to the owner.
(33) To be used for any other purpose.
(34) I.e., mere designation for the dead subjects it to the same law as though it has been employed for the purpose.
(35) In connection with the dead: And Miriam died there and was buried there (שם) (Num. XX, 1); with reference to the heifer, And shall break the heifer's neck there (Deut. XXI, 4).
(36) Even the mere bringing it down to the valley renders it forbidden for any other purpose (Rashi: cf. Kid. 57a)
(37) Sc. a shroud woven for the dead.
(38) Ye shall surely destroy all the places there (שם) where the nations which ye are to dispossess serve their gods. (Deut. XII, 2).
(39) I.e., if one dedicates an object for idol-worship, it does not become forbidden, unless actually used so, because 'The laws of dedication do not operate in connection with idol worship.' A.Z. 44b.
Talmud - Mas. Sanhedrin 48a
Objects of service are deduced from objects of service,1 thus excluding the broken-necked heifer, which is in itself taboo. And why does Abaye not deduce [his ruling] from idol-worship? - He answers you: Normal practices are deduced from normal practices so excluding idol-worship which is not normal.2
(Mnemonic: Veil; Tomb; Hewn. The craftsman's bag.)3
An objection is raised: 'If a veil, which is unclean4 through Midras,5 is designated [as a cover] for the Book [of the law], it is purified from [the uncleanness of] Midras,6 yet may become unclean by direct contact [with the dead]'?7 - Say thus: If it was designated for and wrapped round [the Book].8 But why are both 'designation' and 'wrapping' necessary?9 - This is in accordance with R. Hisda, who said: If a cloth was assigned for wrapping Tefillin therein, and was so used, one may not tie up coins in it. If it was assigned, but not used so, or vice versa,10 one may tie up coins in it.11 But on Abaye;s view, viz., that [mere] designation is a material act; if one had assigned the cloth [for the purpose of wrapping up his Tefillin], even though he did not do so, or if he wrapped them in it, and also assigned it [for that purpose], it is so [i.e., the prohibition holds good]; but if he had not assigned it, it is not [forbidden].
Come and hear! 'A tomb12 built for a man still alive, may be used.13 If, however, one added a single row of stones for a dead person,14 no [other] use may be made thereof'?15 - This deals with a case where the corpse had actually been buried there. If so why [teach] particularly 'if one added [etc.]'; even if not, the law would have been the same! - This is only necessary [to teach that the prohibition remains] even if the body has [subsequently] been removed.16
Rafram R. Papa said In R. Hisda's name: If he recognizes that [additional row] he may remove it and the tomb becomes again permissible.
Come and hear! 'If one hews a grave for his [dead] father and then goes and buries him elsewhere, he [himself] may never be buried therein'?17 - Here it is on account of his father's honour.18 That too stands to reason. For the second clause teaches: R. Simeon b. Gamaliel said; Even if one hews stones19 [for a tomb] for his father, but goes and buries him elsewhere, he [himself] may never employ them for his own grave.20 Now, if you agree that it is out of respect for his father, it is correct. But if you say that it is because of designation, does any one maintain that yarn spun for weaving [a shroud is forbidden]?21
Come and hear! A fresh grave may be used. But if an abortion has been laid therein, it is forbidden for use,22 Thus, it is so only if it has actually been laid therein, but not otherwise!23 - The same law holds good even if it [the abortion] was not laid therein;24 and it [the statement, 'if it has been laid therein'] is [only] intended to exclude the view of R. Simeon b. Gamaliel, who maintains: Abortions take no possession of their graves.25 He therefore teaches us [otherwise].26
Come and hear! 'The surplus [of a collection] for the dead must be used for [other] dead,27 but the surplus [of a collection] for a [particular] deceased person belongs to his heirs'?28 - This refers to a case [where the money was] collected during [the deceased's] lifetime. But [the Tanna] did not teach thus? For we learnt: The surplus [of a collection] for the dead must be used for [other] dead, but the surplus [of a collection] for a [particular] deceased person belongs to his heirs. Now, it was taught thereon: How so? If it was collected for the dead in general that is where we rule; The surplus [of a collection] for the dead must be used for [other] dead, but if it was collected for a particular dead person, that is where we rule, The surplus [of a collection] for a deceased belongs to his heirs! - But according to your view,29 consider the second section: R. Meir said: It must remain intact until Elijah comes;30 R. Nathan ruled: It is to be expended for a monument on his grave, or sprinkling [aromatic wine] before his bier.31 But Abaye reconciles them32 in accordance with his view, and Raba in accordance with his view.33 'Abaye reconciles them in accordance with his view;' [thus;] all agree that designation is a material act. Now, the first Tanna holds that he [the dead] takes possession34 only of as much as he needs, and not of the surplus;35 R. Meir, however, is doubtful whether he takes possession [of the surplus] or not: consequently it must remain intact until Elijah comes; whereas R. Nathan holds that he certainly takes possession [even of the surplus]; hence it is to be employed for a monument on his grave. 'And Raba in accordance with his view;' [thus:] all agree that assignment is not a material act.36 Now, the first Tanna maintains: Though they humiliated him,37 he forgives his humiliation for his heirs' sake,38 R. Meir, however, is doubtful whether he forgives it or not; therefore it must remain intact etc.; whilst R. Nathan takes the definite view that he does not forgive it, therefore the surplus must be expended on a monument for his grave or for sprinkling [aromatic wine] before his bier.
Come and hear! If his father and mother are throwing garments upon him,39 it is the duty of others to save them.40
(1) I.e., the shroud for the dead and the animal devoted to be sacrificed to an idol are not in themselves taboo, but merely so because they are used in the service of something that is forbidden. In A.Z. 51b the verse referring to idolatry (quoted in n. 4) is interpreted as bearing upon objects used in the service of idols.
(2) 'Normal' is used in the sense of 'sanctioned by law.' I.e., it is a normal (permitted) practice to make a shroud for the dead, likewise to break the neck of a heifer under prescribed conditions. But under no circumstances can idolatry be 'normal' (i.e. - permitted). Therefore, mere designation in connection with idolatry does not impose a prohibition, because, since it is abnormal (forbidden), one may repent and never use it for the purpose. But in the case of the other two, if permitted (or even obligatory), once they are designated for that purpose they will certainly be used, unless unforeseen circumstances intervene. Therefore the mere designation suffices to give them the same status as though they had actually been used.
(3) [On this mnemonic v. Brull. I., Mnemotechnick p. 44.]
(4) Rashi here, and the commentary of R. Samson of Sens on the Mishnah, Kel. XXVIII, 5, understand it literally, i.e., it had actually become unclean. Maim. and Asheri, however, translate (loc. cit.), which is liable to become unclean, but had not, in fact, become so.
(5) מדרס, a technical term in the laws of purity, from דרס 'to tread', denoting the uncleanness of an object through being used either for sitting on or lying on, i.e., being made to bear the weight of a person with issue. If it is so defiled, it becomes a primary source of uncleanness to men and utensils. A veil is thus liable, since it may be folded up and sat upon, or, when it is being worn on the head, the wearer may lean back on her seat or the wall, and thus cause it to bear her weight.
(6) So according to Rashi and R. Samson. M. and Asheri: it ceases to be liable to the uncleanness of Midras. The reason, according to all interpretations, is that it can no longer be used in such a way.
(7) As all other finished articles which have a definite use (technically, 'utensils'). Rashi translates (with a different reading): yet it retains the uncleanness of touch, i.e., if when the person with issue bore down on it, he also touched it, the uncleanness of Midras disappears, but it retains to the uncleanness of having been touched by him - which is a different degree of impurity', (Kelim XXVIII, 5). This proves that mere designation is a material act which suffices to change the status of an object, and thus contradicts Raba's ruling.
(8) Hence there was not merely designation, but also use; the combination can certainly effect a change.
(9) The use itself should have sufficed for the change.
(10) I.e., Tefillin were wrapped therein, but it had not been previously assigned for that purpose.
(11) I.e., assignment by itself is not a material act. Again, wrapping something in it without having made the assignment is assumed to be merely incidental. The same applies to the veil, and therefore both are required. - Of course, that is only on Raba's view; Abaye will interpret the Mishnah cited quite literally.
(12) נפש. The word actually means a structure built over a tomb, to be used as a grave.
(13) For other purposes.
(14) I.e., the addition was made when the person was actually dead.
(15) Thus proving that mere designation is a material act.
(16) When the prohibition of its use depends on whether a special row of stones was added for the corpse. If not it loses its forbidden character, for it is then like the cloth in which Tefillin were wrapped without its having been previously designated for that purpose.
(17) V. p. 315, n. 12.
(18) That the grave is prohibited to serve as the son's burial place.
(19) From a quarry for the purpose of building a vault.
(20) Lit., 'may never be buried in them.'
(21) None, not even Abaye. For Abaye only maintains that if a shroud is actually woven, and so fit for its purpose, it is forbidden through mere designation. But when yarn is spun, though its ultimate destiny is to be woven into a shroud, it is not forbidden, since as yarn it is useless for its purpose. Similarly, when stones are prepared for building a tomb, they should not become forbidden. Hence the prohibition must be on account of filial respect, not designation.
(22) V. p 316, n. 2.
(23) I.e., if it was merely assigned for an abortion, it is not forbidden, proving that mere assignment is not a material act.
(24) On account of the assignment of the abortion.
(25) I.e., they do not impose a lasting prohibition thereon, to operate even after the graves are cleared.
(26) Therefore the Tanna is particular to mention 'an abortion,' but is not exact in his statement as to what is done for the abortion. But actually, even if the grave is merely designated for an abortion, it is forbidden for use.
(27) If a collection was made for burying the poor, the actual person, however, being unspecified, and at any particular moment there is a balance in hand, it must be kept for other dead. This is so even if, when the collection was made, it was known that it was for certain dead, but they were not specified.
(28) To be used for any purpose, thus proving that designation is not a material act (Mishnah Shek. II. 5).
(29) That assignment is not material.
(30) I.e., Elijah the prophet glorified in the Haggadah as a messenger charged with various tasks, one of which is to be the precursor of the Messiah, when he will solve all questions in doubt. (Cf. B.M. 29b; Pes. 15a).
(31) From this it would seem that since it was designated for the dead,it must be so used, proving that designation is a material act. [The words, 'Or sprinkling . . . his bier', do not occur in the cited Mishnah, but in Tosef, Shek. I.]
(32) The differences of opinion in the Mishnah.
(33) In such a way that the differing Tannaim may he seen to agree with their (Abaye's and Raba's) views respectively.
(34) I.e., it becomes his peculiar property, in the sense that it may not be used for any other purpose.
(35) Lit., 'of what he does not need.'
(36) And the reasons given by R. Meir and R. Nathan for prohibiting the balance for general use is not that it is actually forbidden, but because the deceased was put to shame when a public collection was made for his funeral.
(37) V. preceding note.
(38) I.e., that they may have the benefit of the surplus.
(39) Their dead son. It was an expression of extreme grief, and a symbol that they were ready to renounce everything left behind, that belonged to him (Rashi).
(40) By removing them from the corpse, as though returning lost property. Now, had assignment been a material act, how could they be saved after being dedicated to the dead?
Talmud - Mas. Sanhedrin 48b
- There [it is done] solely out of grief.1 If so, how explain what was taught regarding this: R. Simeon b. Gamaliel said: When is this so? Only if they [the garments] have not [actually] touched the bier, but if they have, they are forbidden [for use]?2 - 'Ulla interpreted this as referring to a bier which is buried with him,3 [the garments being forbidden] because they might be confused with the vestments of the dead.4
Come and hear! 'One may not put money in a bag which was made to hold Tefillin.5 But if one [incidentally] put Tefillin in a bag, he may afterwards put money therein'?6 - Let us put it thus: If a man made it [for Tefillin] and placed Tefillin therein, it is forbidden to put money in it: and this is in accordance with R. Hisda.7
Come and hear! 'If one says to a craftsman, Make me a sheath for a Scroll [of the Law], or a receptacle for Tefillin,' before they are actually used for their sacred purposes, they may be employed for secular requirements; but once used for their sacred purposes they may not be put to secular use!'8 - There is here a dispute among Tannaim for it has been taught: If one overlaid them [the Tefillin] with gold or covered them with the hide of an unclean beast, they are unfit.9 If with the hide of a clean beast, they are permissible, even though it was not dressed for the purpose. R. Simeon b. Gamaliel said: Even if covered with the hide of a clean beast, they are unfit, unless it was not specially dressed for the purpose.10 Rabina said to Raba: Is there any place where the dead lie while the shroud is being woven?11 Yes, he answered; e.g., it is so with the dead of Harpania.12 Meremar said in a lecture: The law rests with Abaye. But the Rabbis say: The law rests with Raba. In fact the law is as Raba says.
Our Rabbis taught: The property of those executed by the State13 belongs to the King: the property of those executed by the Beth din belongs to their heirs. R. Judah said: Even the property of those executed by the State goes to their heirs. Said they to R. Judah: But it is not written, Behold he [Ahab] is in the vineyard of Naboth whither he is gone down to take possession of it?14 - He answered: He [Naboth] was his [the King's] cousin,15 and therefore he [Ahab] was his legitimate heir.16 But he [Naboth] had many sons! - He [the King] slew both him and his sons, he replied, as it is written, Surely I have seen yesterday the blood of Naboth and the blood of his sons.17 And the Rabbis?18 - They refer to his potential sons.19 Now, on the view that their property belongs to the King, it is correct: hence it is said, Naboth did curse God and the King.20 But on the view that their estate belongs to their heirs,21 why mention and the King?22 - But even according to your reasoning,23 why state, 'God'?24 Hence [it must have been added] in order to increase the anger [of the judges].25 So here too,26 it [the mention of the King] was made in order to increase the anger [of the judges].27 Now, on the view that the estate belongs to the King, it is correct: hence it is written, And Joab fled unto the tent of the Lord and caught hold of the horns of the Altar;28 and it is further written, And he said Nay, but I will die here.29 But on the view that their estate belongs to their heirs, what difference did it make to him? - [It would serve] to prolong his life for a while.30
And Benaiah brought back word unto the King saying, thus said Joab and thus he answered me:31 He [Joab] had said to him: Go and tell him [the King]: Thou canst not inflict a twofold punishment upon me:32 if thou slayest me, thou must submit to the curses which thy father uttered against me;33 but it thou art unwilling [to submit thereto], thou must let me live and suffer from thy father's curses against me. And the King said unto him, Do as he hath said,34 and fall upon him and bury him.35
Rab Judah said in Rab's name; All the curses wherewith David cursed Joab were fulfilled in David's own descendants. [It is written:] Let there not fail from the house of Joab one that hath an issue, or that is a leper, or that leaneth on a staff, or that falleth by the sword, or that lacketh bread.36 'He that hath an issue' [was fulfilled] in Rehoboam,37 for it is written, And king Rehoboam made speed38 to get him up to his chariot to flee to Jerusalem;39 whilst it is elsewhere written, And what saddle soever he that hath the issue rideth upon shall be unclean.40 'A leper' - Uzziah,41 for it is written, But when he was strong his heart was lifted up so that he did corruptly, and he trespassed against the Lord his God, for he went unto the Temple of the Lord to burn the incense upon the altar of incense;42 and it is further written, And the leprosy broke forth on his forehead.43 'He that leaneth on a staff' - Asa,44 for it is written, Only in the time of his age he was diseased in his feet:45 concerning which Rab Judah said in Rab's name: He was afflicted with gout.46 Mar Zutra the son of R. Nahman asked R. Nahman; What is it [this complaint] like? - He answered: Like a needle in the raw flesh. But how did he [R. Nahman] know that? - Either because he himself suffered with it; alternatively, he had a tradition from his teacher; or again [he knew it] because, The secret47 of the Lord is with them that fear Him, and His covenant to make them know it.48 'He that falleth by the sword,' - Josiah,49 for it is written, And the archers shot at king Josiah:50 concerning which Rab Judah said in Rab's name: They riddled his body like a sieve. 'That lacketh bread' - Jechoniah,51 for it is written, And for his allowance, there was a continual allowance given him [by the king].52 Rab Judah said in Rab's name: Thus people say,
(1) But without seriously intending to devote the garments to the dead. Therefore it is not regarded as designation at all.
(2) But seeing that the act is done only out of grief and there is no assignment to the dead at all, why should they be forbidden?
(3) Such was the custom in those days.
(4) I.e., the permission given to use the garments might be taken as applying also to the vestments, seeing that they come in contact with one another. Otherwise they might have been permitted for use, not because assignment is not material, but because in this case it was only an expression of grief.
(5) Although it had not actually been used for that purpose.
(6) Hence assignment is material.
(7) Who holds that both designation and actual use are needed for prohibition. Cf. supra 48a.
(8) V. Tosef Meg. II. This definitely proves that use and not designation is material, and contradicts Abaye.
(9) Cf. Shab. 108a on the verse in Ex. XIII, 9, That the law of the Eternal may be in thy mouth, - they (the Tefillin) should be made out of objects permissible for food.
(10) Men. 42b. Git. 45b. thus, the first Tanna considers designation as immaterial, whereas R. Simeon B. Gamaliel holds it to be a material act. Hence Raba agrees with the first Tanna; Abaye is with R. Simeon b. Gamaliel.
(11) I.e., surely one does not wait for a person to die and delay the funeral while a shroud is being woven. In that case, the dispute of Abaye and Raba, whether a shroud woven for the dead (which means when the person is actually dead) may be used for other purposes, is entirely an imaginary one, such circumstances being inconceivable.
(12) [Or Neharpania (v. D.S. a.l.), a town in Babylon in the Mesene district, v. Obermeyer, op. cit., p. 197.] According to Rashi, its inhabitants were so poor that they could not afford to prepare the shrouds beforehand,and only after a death occurred was a public collection made, and a shroud hastily woven. [According to Obermeyer, op. cit., p. 201, the corpse in the meantime was lying naked in accordance with the Zoroastrian practice which the Jews of that town seemed to have adopted which forbade the covering or dressing of a corpse with any cloth but one that had been specially woven and prepared for the purpose.]
(13) The reference is to the Jewish State, e.g., those executed for treason against the King.
(14) So God said to Elijah. I Kings XXI, 18. The expression 'take possession' (from the verb 'to inherit') indicates that he took legitimate possession, as an heir.
(15) Lit., 'the son of his father's brother.'
(16) This statement has no Biblical source.
(17) II Kings IX, 26.
(18) How could they urge the fact that he had sons in face of the definite statement that they were slain?
(19) Lit., 'to the sons that should have issued from him.' - A murderer is held guilty not only of his victim's death, but also for the frustration of the lives of his potential descendants for all time. (Cf. Mishnah. supra 37a). But in their view, Ahab did not slay his actual sons.
(20) I Kings XXI, 13, pointing to his culpability for treason to the King in addition to blasphemy, which is punished by the Beth din; hence his estate would fall to the crown.
(21) So that Ahab took possession of the vineyard as heir.
(22) Since blasphemy itself was sufficient for conviction, why needlessly add a false indictment?
(23) That treason was punished by death and royal confiscation.
(24) The charge of blasphemy being in itself superfluous.
(25) I.e., they might have been inclined to think that a charge of treason alone was trumped up, but when blasphemy was added, they assumed it to be genuine. So Rashi. Kimhi maintains that the judges knew the testimony to be false, but that the accusation was made stronger in order to keep the people from revolting against the execution.
(26) I.e., even if he held that their estate did not belong to the King.
(27) I.e. to make the crime appear more heinous.
(28) I KIngs II, 28.
(29) Ibid. 30. I.e., he declined to be tried by the King so that his estate might not be confiscated.
(30) He wished to gain the time which it would require to take his message to the King and bring back an answer.
(31) Ibid. This gives the impression that Benaiah had had a long conversation with Joab.
(32) Lit., 'that man.'
(33) For the murder of Abner. V. II Sam. Ill, 29: The curse is quoted in the text. - That curse then was to be Joab's punishment. But if Solomon executed him, the curse would be transferred to Solomon himself.
(34) And kill him where he is.
(35) I Kings II, 31. Thus Solomon accepted the curses.
(36) II Sam. III, 29.
(37) Solomon's only son. V. I Kings XIV, 21.
(38) Lit., 'used effort'.
(39) I Kings XII, 18.
(40) Lev. XV, 9. The deduction is made from a comparison of the uses of the expression 'to ride' in both verses. According to Kimhi, however, it is deduced from the fact that he had to use an effort to mount his chariot.
(41) Son of Amaziah, called also Azariah, Cf. II Kings XV, 1.
(42) II Chron. XXVI, 16.
(43) Ibid. 19.
(44) Son of Abijah, King of Judah. II Kings XV, 8.
(45) I Kings XV, 23.
(46) Podagra, gout in the feet, in consequence of which he had to lean on a staff.
(47) E.V. 'The counsel.'
(48) Ps. XXV, 14, - i.e., as a Divine revelation.
(49) Son of Amon, II Kings XXII, 1.
(50) II Chron. XXXV, 23.
(51) Grandson of Josiah.
(52) Of Babylon, II Kings XXV, 30.
Talmud - Mas. Sanhedrin 49a
Let thyself be cursed rather than curse [another].1
Then Joab was brought before the Court,2 and he [Solomon] judged and questioned him, 'Why didst thou kill Abner?'3 He answered, 'I was Asahel's4 avenger of blood.'5 'But Asahel was a pursuer!'6 'Even so,' answered he; 'but he [Abner] should have saved himself at the cost of one of his [Asahel's] limbs.'7 'Yet perhaps he could not do so, remonstrated [Solomon]. 'If he could aim exactly at the fifth rib,' he retorted, ('even as it is written, Abner with the hinder end of the spear smote him at the waist;8 concerning which R. Johanan said: It was at the fifth rib, where the gall-bladder and liver are suspended.) - could he not have aimed at one of his limbs?' Thereupon [Solomon] said: 'Let us drop [the incident of] Abner; why didst thou kill Amasa?'9 He answered: 'Amasa disobeyed the royal order,10 for it is written, Then said the King to Amasa, Call me the men of Judah together within three days etc. So Amasa went to call the men of Judah together; but he tarried etc.' 'But,' said he [Solomon], 'Amasa interpreted [the particles] 'Ak and Rak.'11 [Thus:] he found them12 just as they had begun [the study of] a tractate; whereupon he said: It is written, Whosoever he be that shall rebel against thy [the King's] commandments and shall not hearken unto thy words in all that thou commandest him, he shall be put to death.13 Now, one might have thought that this holds good even [when the transgression is committed] for the sake of the study of the law: it is therefore written, only [Rak] be strong and of good courage.14 But thou thyself15 didst disobey the royal order, for it is written, And the tidings16 come to Joab, for Joab had turned after Adonijah, though he had turned not after Absalom.17 What is the purpose of 'though he had turned not.'18 - Rab Judah said: He wished to turn [after him], but did not. And why did he not? - R. Eleazar said: David still possessed his vitality.19 R. Jose the son of R. Hanina said: David's star20 was still in the ascendant, for Rab Judah said in Rab's name:21 Four hundred children had David, all the issue of yefoth to'ar; they had long locks, and used to march at the head of the troops; it was they who were the men of power in David's household.
This [view of Joab] is in contradiction to the view held by R. Abba b. Kahana, who said: But for David,22 Joab would not have succeeded in23 war; and but for Joab, David could not have devoted himself to [the study of] the Torah, for it is written, And David executed justice and righteousness for all his people, and Joab the son of Zeruiah was over the host:24 - i.e., why was David able to execute 'justice and righteousness for all his people'? - Because 'Joab was over the host.' And why was 'Joab over the host'?25 - Because 'David executed justice and righteousness for all his people.
' And when Joab was come out from David he sent messengers after Abner and they brought him back from Bor-Sira.26 What meaning has [the name] Bor-Sira? - R. Abba b. Kahana said: Bor27 and Sira28 caused Abner to be killed.29
And Joab took him aside into the midst of the gate to speak with him quietly.30 R. Johanan said: He judged him according to the law of the Sanhedrin.31 Thus he asked him: 'Why didst thou kill Asahel?' - 'Because Asahel was my pursuer.' 'Then thou shouldst have saved thyself32 at the cost of one of his limbs!' 'I could not do that,' [he answered]. 'If thou couldst aim exactly at his fifth rib, couldst thou not have prevailed against him by [wounding] one of his limbs?'
'To speak with him ba-sheli [quietly]:' Rab Judah said in Rab's name: [He spoke to him] concerning the putting off [of the shoe].33 'And smote him there at the waist:' R. Johanan said: At the fifth rib, where the gall-bladder and liver are suspended.34
And the Lord will return his [Joab's] blood upon his own head because he fell upon two men more righteous and better than he.35 'Better,' because they interpreted aright [the particles] 'ak and rak,36 whilst he did not;37 'More righteous,' because they were instructed verbally,38 yet did not obey, whereas he was instructed in a letter,39 and nevertheless carried it out.
But Amasa did not beware of the sword that was in Joab's hand.40 Rab said: That was because he did not suspect him. And he was buried in his own house in the wilderness.41 But was his house a wilderness?42 - Rab Judah said in Rab's name: It was like a wilderness, just as a wilderness is free to all, so was Joab's house free to all.43 Alternatively: 'Like a wilderness' means, just as a wilderness is free from robbery and licentiousness,44 so was Joab's house free from robbery and licentiousness.
And Joab kept alive45 the rest of the city:46 R. Judah said: Even fish broth and hashed fish he would merely taste and then distribute to the poor.47
(1) For, as in this case, the curses always recoil on oneself or on one's descendants.
(2) This is a continuation of the narrative commenced on 48b, which was interrupted to shew that all David's curses were fulfilled upon his descendants.
(3) Cf. II Sam. III, 27.
(4) Joab's brother, who pursued Abner when he fled for his life, after having been defeated by Joab at Gibeon whilst fighting for Ishbosheth, Saul's surviving son, v. II Sam. II, 23.
(5) Cf. Num. XXXV, 19.
(6) I.e., Abner, seeing his life in danger, killed him in self-defence. Cf. II Sam. II, 8-32.
(7) And so incapacitate him, instead of inflicting a mortal wound. V. infra 74a: If one can injure his adversary in self-defence, but kills him instead, he is guilty of murder.
(8) II Sam. II, 23 חומש 'loins', 'waist', means also 'fifth'. Hence R. Johanan's interpretation.
(9) Son of Abigail, King David's sister, who commanded the rebel army of Absalom. Subsequently he was pardoned by David and given the command of the army when the rebellion of Shebah broke out (II Sam. XX). On that account Joab saw a dangerous rival in him. II Sam. XVII, 25; XIX, 14.
(10) Lit., 'he rebelled against the throne.' This was punishable by death.
(11) אך, 'but'; רק, 'only', both denoting limitation.
(12) The men of Judah.
(13) Josh. I, 18.
(14) Rak intimating a limitation. Hence the duty to fulfil the King's command does not apply where one is engaged in the study of the Law, According to the view held by Amasa, God's Law seemed more important to him than the will of the King, and no transgression was involved in waiting until they had finished their study.
(15) Lit., 'that man.'
(16) Of Solomon's ascent to the throne.
(17) I Kings II, 28.
(18) For the information that he did not turn after Absalom seems superfluous at this point.
(19) Lit., 'moisture'. But as soon as David became feeble he inclined after Adonijah.
(20) איצטגניני (astrological power), symbol of his mighty men upon whom he placed reliance in war, and who led him to victories.
(21) V. nn. 4-5, supra p. 114.
(22) Who studied the Torah continuously.
(23) Lit., 'waged'.
(24) II Sam, VIII, 15-16.
(25) I.e., why was he successful in war?
(26) Ibid. III,26.
(27) בור 'well',hence container of water, a pitcher.
(28) סירה a thorn-bush.
(29) The explanation of this statement is found in J. Sotah I, where one of the reasons given for Abner's death was his indifference to the effecting of a reconciliation between Saul and David, instead of seeking which, he rather endeavoured to increase their hatred. He did not take advantage of the following two occasions when he might have brought about the reconciliation: One, when Saul entered the cave of En-Gedi where David and his band were hidden, and the latter, though he could have destroyed his pursuer, contented himself with merely cutting off the skirt of his robe (I Sam. XXIV, 4). The second time, in the wilderness of Ziph, when David found Saul sleeping and took the spear and jug of water from beside his head (ibid. XXIV, 12ff), subsequently reproaching Abner for not watching better over the King. Abner, however, made nought of this generous treatment of Saul by David, contending that the jug of water might have been given to David by one of the servants, whilst the skirt of the robe might have been torn away by a thorn-bush, and left hanging. These two incidents are hinted at in the words Bor (well, i.e., a jug of water), and Sira (a thorn-bush).
(30) II Sam. III, 27.
(31) This is inferred from the word 'gate', frequently denoting 'court'; cf. Deut. XXI, 19.
(32) Lit., 'him', i.e., save the pursuer from committing a crime, v. supra p. 326, n 8.
(33) The word בשלי is here derived from נשל to draw or pull off. Joab is supposed to have inquired from Abner in what way a one-armed woman would loosen the shoe in the ceremony of halizah (v. Deut. XXV, 9). On his replying that she would do it with her teeth (cf. Yeb 105a), he asked him to demonstrate it, and as he stooped low to do so, he smote him. This incident is hinted at in David's words of farewell to Solomon: He (sc. Joab) shed the blood of war in peace, - and put the blood of war in the shoes that were on his feet (I Kings II, 5).
(34) V. p. 326, n. 9.
(35) And slew them with the sword. I Kings II, 32.
(36) Signifying limitation. v. p. 326, n. 12. According to this, the king's orders were not to be obeyed where they involved serious transgressions; v. p. 327 n. 2, with reference to Amasa, Abner's attitude is intimated in a reference to the murder of the Priests of Nob (v. I Sam. XXII, 17). And the King said unto the guard that stood about him, turn and slay the Priests of the Lord, but the servants of the king would not put forth their hand to fall upon the Priests of the Lord. Cf. also supra 20a, where, according to R. Isaac, Abner tried to restrain the king from committing a murder, but without avail.
(37) When the king directed him to expose Uriah the Hittite to the enemy in such a manner as to ensure his destruction. V. II Sam. XI, 14ff.
(38) To kill the priests of Nob.
(39) Ibid. XI, 14. And a verbal command by the king is stronger than a mere written order.
(40) II Sam. XX, 10.
(41) I Kings II, 34.
(42) Regarding 'in' as indicating apposition: i.e.,'in his own house,' viz. 'the wilderness.'
(43) I.e., Everyone was sure to find hospitality there.
(44) Because it it not inhabited by men.
(45) יהיה lit., 'made alive,' (E V,: repaired) i.e., fed.
(46) I Chron. XI, 8.
(47) I.e., even his smallest meal he would share with the poor.
Talmud - Mas. Sanhedrin 49b
MISHNAH. FOUR DEATHS HAVE BEEN ENTRUSTED TO BETH DIN: STONING, BURNING, SLAYING [BY THE SWORD] AND STRANGULATION.1 R. SIMEON ENUMERATED THEM THUS: BURNING, STONING, STRANGULATION AND SLAYING.2 THAT IS THE MANNER OF STONING.3
GEMARA. Raba said in the name of R. Sehora in the name of Rab: Whatever the Sages taught by number is in no particular order, excepting the [Mishnah of] the seven substances. For we learnt: Seven substances are applied to the stain, viz., tasteless saliva,4 the liquid exuded by crushed beans, urine, natron,5 lye,6 Cimolian earth7 and ashleg.8 Now, the latter clause [of that Mishnah] states: If they were not applied in this order, or if they were all applied simultaneously,9 the test is inconclusive. R. Papa the Elder said in Rab's name: The same [exception] applies to 'FOUR DEATHS etc'; for, since R. Simeon disputes the order, it is to be inferred that it is exact. But the other?10 - He does not refer to cases [where the order] is disputed. R. Papa said: The order of Service on the Day of Atonement is also exactly taught, for we learnt: All the rites of the Day of Atonement which are prescribed in a particular order, if one was performed out of its turn, it is invalid. But the other?11 - That law is merely one of added stringency.12 R. Huna, the son of R. Joshua said: The order of the Tamid13 is also exact, for in connection therewith we have learnt: This is the order of the Tamid.14 But the other?15 - That [Mishnah] merely teaches that the precept of the Tamid is best carried out in this order.16
[Now reverting to Raba's statement] this ['whatever etc.'] is intended to exclude the precept of halizah17 [from the need of a particular order in its procedure], for we have learnt: the precept of halizah is thus carried out: - He [the deceased man's brother] and his sister-in-law come before Beth din, who counsel him in a manner fitting for him,18 as it is written. Then the elders of his city shall call him, and speak unto him.19 Then she declares: My husband's brother refuseth etc.,20 whilst he states: I like not to take her.21 The members of Beth din thereupon announce in Hebrew:22 Then shall his brother's wife come unto him in the presence of the elders, and remove his shoe from off his foot, and spit in his sight23 - the spittle was to be visible to the judges - Then shall she answer and say, So shall it be done unto that man etc. . . . And his name shall be called in Israel etc. Now Rab Judah said: The precept of halizah is carried out thus: [First] she declares [My husband's brother refuseth etc.]; then he declares [I like not to take her]; then she removes his shoe and spits in his presence, and then she again declares [So shall it be done etc.]. But we pondered thereon: What does Rab Judah teach us? Is this not stated in the Mishnah? - Rab Judah teaches us this: The precept is best carried out thus; but if the order was changed, it does not matter. It has been taught likewise: Whether the halizah was performed before the spitting or the reverse, the ceremony is efficacious.
Raba's statement above is also intended to exclude that which we learnt: The High Priest officiates [in the Temple] wearing eight garments, but the ordinary priest wears only four, viz., tunic, breeches, mitre and girdle; to which the High Priest adds the breast plate, ephod, robe24 and head plate. Now it has been taught: Whence do we know that nothing must be donned before the breeches? From the verse: [He shall put on the holy linen tunic,] and the linen breeches shall [already] be upon his flesh.25 But why does the Tanna give precedence [in this enumeration] to the tunic? - Because it is given precedence in Scripture;26 and why does Scripture do this? - Because it prefers to state first that which covers the whole body.27
STONING, BURNING, etc.
Stoning is severer than burning, since thus the blasphemer28 and the idol-worshipper are executed.29 Wherein lies the particular enormity of these offences? - Because they constitute an attack upon the fundamental belief of Judaism.30 On the contrary, is not burning more severe, since that is the punishment of a priest's adulterous daughter; and wherein lies the greater enormity of her offence: in that she profanes her father?31
(1) The enumeration is in descending order of severity.
(2) The Gemara discusses the consequences of this dispute.
(3) This refers to the directions given in the Mishnah on 45a.
(4) I.e., the saliva of one who had not eaten that day. Nid. 62a.
(5) Nether (******) is correctly translated 'nitre' in Jer. II, 22, where it signifies carbonate of soda, a cleansing agent. But by a transference of terms 'natron' has been adopted to denote carbonate of soda; whilst 'nitre' now denotes saltpetre, which has no washing properties.
(6) A sort of soap.
(7) A clay used in cleaning clothes.
(8) A kind of alkali, or mineral used as soap. These materials were applied to a red stain on a woman s garments, to ascertain whether it is blood or a dye. If the stain disappears, it is blood; otherwise it is a dye.
(9) And the suspicion of blood is attached to the stain.
(10) Raba, why did he not cite our Mishnah as an exception?
(11) R. Papa the Elder, why does he not include this latter Mishnah among the exceptions?
(12) I.e., Scripture, in insisting on a certain order of ceremonial on the Day of Atonement, did not thereby ascribe greater sanctity to any particular rite, but decreed the order merely as a matter of greater stringency. having regard to the solemnity of the Day. But in those cases cited as exceptions, the order is intimately bound up with the effectiveness or importance of the things mentioned. E.g.,in our Mishnah the order of deaths is in descending severity; in the Mishnah treating of the test applied to a stain, these materials, if applied in a different order, are actually ineffective.
(13) The daily burnt offering.
(14) Tamid VII, 3; the preceding Mishnah enumerated its rites: this Mishnah states that they must be performed in the order taught.
(15) R. Papa, why does he not cite this too as an exception?
(16) Yet if the order was not adhered to, the service is valid.
(17) Lit. 'drawing off', sc. 'the shoe'. The ceremony is referred to in the text. By this act the widow is freed from the obligation of Levirate marriage.
(18) If, e.g., he is an old man, whilst his widowed sister-in-law is a young woman, or vice versa, they advise him to repudiate the marriage.
(19) Deut. XXV, 8. 'Speak unto him' is interpreted as meaning to advise him.
(20) Ibid. 7.
(21) Ibid. 8.
(22) Lit., 'The Holy Language'. By this is meant the actual Biblical text; v. M. H. Segal, Mishnaic Hebrew Grammar, p. 2.
(23) Ibid. 9.
(24) Worn over the tunic.
(25) Lev. XVI, the inserted 'already' is implied in the use of the verb 'to be', יהיו.
(27) Thus we see that the enumeration of the Tanna is not according to the order in which the garments are donned.
(28) Lev. XXIV. 14-16.
(29) Deut. XVII, 2-5, i.e., a Jew who committed idol worship. In this discussion on the relative severity of the different modes of execution the painfulness of the deaths is not taken into account, but merely the gravity of the offences for which they are imposed.
(30) Since both are virtually a denial of the existence of the true God. This is undoubtedly an assertion that the confession of God is the cardinal tenet of Judaism - a dogma, in fact. Notwithstanding the controversies that have arisen on the questions whether Judaism contains any dogmas, there can be no doubt that the rejection of idolatry is a sine qua non of Judaism. V. Schechter, Studies in Judaism: The Dogmas of Judaism. Cf. also Y. D. 268, 2, on the admission of proselytes, of whom is demanded the profession of belief in God and the rejection of idolatry.
(31) V. infra 52b. This discussion, though refuted at a later stage, is interesting as shewing the eminently practical character of Judaism. Though adultery does not undermine the essential basis of Judaism, it is nevertheless suggested that it is to be regarded as a greater offence than idolatry, particularly where its results extend beyond the person of the offender.
Talmud - Mas. Sanhedrin 50a
- The Rabbis1 maintain that a priest's daughter, only if a nesu'ah, is excepted [from the usual punishment by strangulation meted out for adultery] and is executed by burning; but an arusah, [who, if an Israelite's daughter, is stoned] as [if a priest's daughter] not excepted [from the usual punishment, i.e., she is stoned likewise].2 Now since [in a case of a priest's daughter] an arusah is singled out by the Divine Law [and punished] by stoning [instead of burning], we may conclude that stoning is more severe than burning.3 Stoning is severer than slaying by the sword, since it is the punishment of a blasphemer and an idol worshipper, the greater enormity of whose offence has already been stated.4 On the contrary, is not death by the sword more severe, since that is the penalty for the inhabitants of a seduced city,5 the graver character of whose sin is proved by the fact that their property is destroyed? - Now, let us consider: whose crime is greater; that of the seducer or of the seduced? Surely that of the seducer.6 And it has been taught: The seducers of a seduced city are executed by stoning.7
Stoning is severer than strangulation, since it is the penalty of the blasphemer and the idol worshipper, the enormity of whose offence has already been stated. On the contrary, is not strangulation severer, since it is the punishment of one who smites his father or mother, the greater seriousness of whose offence lies in the fact that their honour is assimilated to that of the Omnipresent?8 - Since the Divine Law excluded an arusah, the daughter of an Israelite, from the general penalty of a nesu'ah, the daughter of an Israelite, altering her punishment from strangulation to stoning, it follows that stoning is severer.9
Burning is severer than slaying by the sword, since it is the penalty of a priest's adulterous daughter, the greater enormity of whose offence lies in the fact that she thereby profanes her father. On the contrary, is not the sword severer, since this is the penalty of the inhabitants of a seduced city, the enormity of whose crime is shewn by the fact that their property is destroyed? - 'Her father' is mentioned in connection with stoning;10 'her father' is also mentioned in reference to burning:11 just as when 'her father' is mentioned in connection with stoning, stoning is severer than the sword; so 'her father', when mentioned in connection with burning, shews that burning is severer than slaying by the sword.12
Burning is severer than strangulation, since it is the punishment of a priest's adulterous daughter, the enormity of whose offence has already been stated. On the contrary, is not strangulation severer, since it is the punishment of one who smites his father or mother, the greater enormity of whose offence lies in the fact that their honour is assimilated to that of the Omnipresent? - Since the Divine Law varied the penalty of a nesu'ah, if a priest's daughter, from that of a nesu'ah, if an Israelite's daughter, from strangling to burning, we may conclude that burning is severer.13
Slaying is severer than strangling, since thereby the inhabitants of a seduced city are punished, the severity of whose punishment is attested by the fact that their property is destroyed. On the contrary, is not strangulation severer, being the punishment of one who smites his father or mother, the greater enormity of whose offence lies in the fact that their honour is assimilated to that of the Almighty? - Even so the offence against the fundamental tenet of Judaism [which is the crime of the seduced city] is greater.
R. SIMEON ENUMERATED THEM THUS etc.
[In his view] burning is severer than stoning, since it is the punishment of a priest's adulterous daughter, the enormity of whose offence lies in the fact that she profanes her father. On the contrary, is not stoning severer, being the punishment of a blasphemer and idol-worshipper, the gravity of whose offence lies in that they reject the fundamental tenet of Judaism? - R. Simeon's view here is in accordance with his other opinion, viz., that a priest's adulterous daughter, whether an arusah or a nesu'ah, is excepted [from the punishment meted out to an Israelites' daughter], in that her penalty is burning. Now since the Divine Law varied the punishment of an arusah, if a priest's daughter, from that of an Israelite's daughter, from stoning to burning, it follows that burning is a severer penalty.
Burning is severer than strangulation, since it is the punishment of a priest's adulterous daughter, the gravity of whose offence has already been stated. On the contrary, is not strangulation severer than burning, being the punishment of one who strikes his father or mother,the enormity of whose offense is constituted by the fact that their honour is compared to that of the Omnipresent?-Since the Divine Law excluded a nesu'ah, the daughter of a priest, from the penalty of a nesu'ah, if an Israelite's daughter, by changing her death from strangling to burning, it follows that burning is severer.
Burning is severer than slaying, since it is the punishment of a priest's adulterous daughter, the enormity of whose offence has already been stated. On the contrary, is not the sword more severe, since it is the penalty of the inhabitants of a seduced city, the gravity of whose offence is shewn by the fact that their property is destroyed? Now consider, whose offence is greater: that of the seducer or of the seduced?
(1) The anonymous opinion cited first in the Mishnah.
(2) Marriage consists of two stages: kiddushin or erusin, whereby the matrimonial bond is made, not to be broken without divorce; and huppah, or home taking, without which cohabitation is forbidden. A woman who has undergone the first ceremony is called an arusah (betrothed); after the second she is called a nesu'ah (married). Nowadays both ceremonies are united, the canopy (huppah) being symbolic of the home to which the husband takes his newly-married wife; but in ancient days there was generally an interval between them.
(3) For obviously the offence of an arusah, who is still in her father's house and thereby profanes him, is greater than that of a nesu'ah; and therefore we may assume that her punishment is correspondingly greater. This conclusion is further supported by the fact that a nesu'ah, if an Israelite's daughter, is punished by strangulation, the most lenient of all death penalties, whilst an arusah is punished by stoning, the most severe. Rashi, however, points out that Scripture does not state that a priest's daughter, only if a nesu'ah, is excepted from the punishment of an Israelite's daughter: but not if an arusah. It is only because the Rabbis hold stoning to be more severe than burning that they assume that an arusah, if a priest's daughter, cannot be more leniently treated than if a Israelite's daughter, for her penalty to be commuted from stoning to burning. This vitiates the whole argument. Hence we must fall back upon the first line of reasoning, that stoning is severer, since it is the punishment of an idol worshipper and blasphemer, because their offence, constituting a rejection of the fundamental basis of Judaism is greater than that of the harlot, in spite of the fact that she profanes her father. That being so, the passage 'the Rabbis maintain etc.' will not be part of the proof, but an answer to an unexpressed difficulty. For this difficulty arises: If stoning is severer than burning , how is it that a priest's daughter is punished by the latter instead of the former, which is the punishment of an Israelite's daughter(if an arusah)?To this the answer is given that only a nesu'ah is thus punished by burning , whilst an Israelite's daughter is only strangled - an easier death than burning. But if an arusah, her death is by stoning, just as in the case of an Israelite's daughter. Consequently, the next passage now, since an arusah, etc.' is entirely superfluous, being neither part of the argument nor an answer to the unexpressed difficulty: Rashi therefore deletes it from the text.
(4) Supra. 49b.
(5) Deut. XIII, 13-19.
(6) The Rabbis always regarded the offence of the tempter as greater than that of the sinner himself. Cf. Ab. V, 23: 'He who causes the multitudes to sin, shall not have the means to repent.... Jeroboam, the son of Nebat, sinned and caused the multitude to sin; the sin of the multitude was laid upon him.' This is in conformity with the general rabbinic dictum: 'All Israel are sureties for one another'.
(7) Thus proving stoning to be the greater penalty.
(8) Cf. Honour thy father and thy mother (Ex. XX, 12) with Honour the Lord with thy substance (Prov. III, 9).
(9) An arusah's sin is greater, because she destroys her virginity in addition to disgracing her family.
(10) In the case of a betrothed damsel who committed whoredom: Then shall they bring out the damsel to the door of her father's house, and the men of her city shall stone her with stones that she die; because she hath wrought folly in Israel, to play the whore in her father's house. Deut. XXII, 21.
(11) In the case of a priest's daughter: And the daughter of any priest, if she profane herself by playing the whore, she profaneth her father: she shall be burnt with fire. Lev. XXI, 9.
(12) A Gezerah Shawah, v. Glos.
(13) The sin of a priest's daughter is greater than that of an Israelite's daughter, since the former profanes her father in addition to disgracing herself.
Talmud - Mas. Sanhedrin 50b
Surely that of the seducer! This affords an argument from a major to a minor premise. If burning is severer than strangulation [as has already been shewn], though1 the latter is severer than the sword,2 it [burning] is surely severer than slaying, which is a lesser penalty.
Stoning is severer than strangulation, being the penalty of a blasphemer and idol worshipper, the extreme gravity of whose offence has already been stated. On the contrary, is not strangulation severer, since it is the penalty of one who smites his father or mother, the gravity of whose offence lies in the fact that their honour is likened etc.? - Since the Divine Law excluded an arusah, the daughter of an Israelite, from the penalty of a nesu'ah, the daughter of an Israelite, changing it from strangling to stoning,3 it follows that stoning is severer.
Stoning is severer than slaying, being the penalty of a blasphemer, etc. On the contrary, is not slaying severer than stoning, since it is the penalty of the inhabitants of a seduced city, the gravity of whose offence is proved by the fact that their property is destroyed? - Now consider, whose offence is greater: the seducer's or the seduced? Surely that of the seducer! Hence you may argue from a major to a minor premise. If stoning is severer than strangulation, though the latter be severer than slaying,4 surely it is severer than slaying itself.
Strangulation is severer than slaying, since it is the penalty of one who smites his father or mother, the gravity of whose offence has already been stated - On the contrary, is not slaying severer, since it is the penalty of the inhabitants of a seduced city, the enormity of whose crime is attested by the fact that their property is destroyed? - Now consider: whose offence is greater, the seducer's or the seduced? Surely the seducer's! And it has been taught: The seducers of a seduced city are punished by stoning. R. Simeon maintained: By strangulation.
R. Johanan used to teach:5 If a betrothed [i.e.,an arusah] maiden6 committed adultery, her punishment is stoning. R. Simeon said: It is burning. If she committed incestuous adultery with her father, her punishment is stoning. R. Simeon said: It is burning.7 What does this shew? - That according to the Rabbis, only a nesu'ah, [if a priest's daughter] was excluded from the penalty of an Israelite's daughter by being burnt [instead of strangled], but not so an arusah - But according to R. Simeon, both an arusah and a nesu'ah, [if a priest's daughter] were thus excepted, by being burnt [instead of strangled]. Why so? - Because the Rabbis consider stoning to be severer, but R. Simeon holds burning to be severer; and from this is inferred that if a person incurred two death penalties, he is punished by the more severe.8
What statement of R. Simeon [shows that he holds that the priest's daughter, whether an arusah or nesu'ah, is punished by burning]? - It has been taught: R. Simeon said: Two general principles have been stated in respect of a priest's daughter.9 Do these principles apply only to a priest's daughter, and not to an Israelite's daughter [surely not]?10 - Say thus: In respect of a priest's daughter too. But then Scripture excluded a priest's daughter, a nesu'ah, from the penalty of an Israelite's daughter, a nesu'ah,' and an arusah, from the penalty of an Israelite's daughter, an arusah.11 Now, just as when the scripture excluded the priest's daughter, a nesu'ah, from the penalty of an Israelite's daughter, a nesu'ah, it was in order to decree a severer punishment;12 so also, when excluding the priest's daughter, an arusah, from the penalty of an Israelite's daughter, an arusah, it must have been in order to impose a greater punishment.13 But false witnesses in respect of a nesu'ah, the daughter of a priest, are treated as though they had testified against an Israelite's daughter; likewise, if in respect of an arusah, who is a priest's daughter, they are punished just as though they had testified against an Israelite's daughter.14
Our Rabbis taught: And the daughter of any priest, if she profane herself:15 I might think that this applies even to the profanation of the Sabbath,16 - but the Writ states by playing the whore: thus Scripture speaks only of profanation through whoredom. I might think that this applies even to an unmarried woman. But her father is mentioned in this passage,17 and her father is also mentioned elsewhere:18 just as elsewhere the reference is to whoredom by one who is bound to a husband, so here too. But perhaps 'her father' is stated in order to exclude others?19 - When Scripture states, She profaneth her father, it must apply to whoredom with others.20 Hence, to what purpose do I put the phrase 'her father' [which, strictly speaking, is superfluous]? 'Her father' is mentioned in this passage, and 'her father' is also mentioned elsewhere; just as elsewhere the reference is to whoredom by one who is bound to a husband, so here too.21 If so, just as the reference there is to a maiden22 who is an arusah, so here too the reference is to a maiden who is an arusah: but if she is a maiden and a nesu'ah, or if she is a full-grown damsel23 and an arusah, or a full-grown damsel and a nesu'ah, or even if she is aged, whence do we know [that the same law applies]? - The Writ states: 'And the daughter of any priest',24 implying that the law holds good in all cases.25
'The daughter of any priest':
(1) no note.
(2) B. Simeon holding that the seducer, whose offence is greater, was punished by strangulation, v. infra 89b.
(3) The offence of an arusah being greater, v. p. 335. n. 1.
(4) As will he proved in the next passage.
(5) Lit., 'It was fluent in his mouth', i.e., he received it orally from his teachers as at traditional law not actually taught in a Mishnah or a Baraitha (Rashi).
(6) 'The Hebrew נערה na'arah denotes a damsel between twelve years and a day and twelve and a half years of age. Before that she is a minor (קטנה), after that an adult, 'entering maturity', bogereth (בוגרת).
(7) All this is R. Johanan's saying.
(8) Since R. Johanan maintains that the Rabbis rule that a priest's daughter , an arusah, is stoned, because stoning is the severer death, whilst R. Simeon holds that she is burnt, because he regards burning severer, deducing all this from the Scripture, it follows that if one incurs a double death penalty, the severer must be imposed. For here too, a choice of two deaths lies before us, and we chose the severer penalty because of the greater gravity of the offence.
(9) One referring to an arusah, and one to a nesu'ah; i.e., when the Torah states, the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to death, (Lev. XX, 10) this is a general law regarding a nesu'ah, in which a priest's daughter should be included. Likewise the law in Deut. XXII, 23f: If a damsel that is a virgin be betrothed unto a husband, and a man find her in the city and lie with her, then shall ye bring them both out unto the gate of the city, and ye shall stone them with stones that they die, is a general principle for an adulterous arusah, which should embrace the priest's daughter too.
(10) This is an interjection.
(11) And the daughter of any priest, if she profane herself by playing the whore, she profaneth her father; she shall be burnt with fire. (Lev. XXI, 9). 'The daughter of any priest', being unspecified, must refer both to an arusah and to a nesu'ah,' whilst Lev. XX, 10 (quoted in preceding note) refers to a nesu'ah, and the death penalty mentioned there is interpreted as strangulation. Thus a priest's daughter, whether an arusah or a nesu'ah, is excepted from the penalty of an Israelite's daughter in a like case.
(12) Burning instead of strangulation, all admitting that the former is more severe.
(13) Burning instead of stoning, making Lev. XXI,9 (quoted on p. 335, n. 3) refer both to a nesu'ah and an arusah. This Baraitha then will be the authority for R. Johanan,'s statement that R. Simeon maintained that both an arusah and a nesu'ah, if priests' daughters, were excepted from the penalty of an Israelite's daughter.
(14) Deut. XIX, 16-19. If a false witness rise up against any man, to testify against him that which is wrong . . . . then shall ye do unto him as he had thought to do unto his brother. Thus a false witness incurred the penalty he had sought to impose. But if he testified against a priest's daughter, whether an arusah or a nesu'ah, his punishment was that of an Israelite's daughter in likecircumstances.
(15) Lev. XXI, 9.
(16) The Hebrew תהל tehel, used in the text, is no necessarily reflexive, as translated in the A.V.
(17) She profaneth her father.
(18) But if this thing be true, and the tokens for virginity be not found for the damsel: Then they . . . shall stone her with stones that she die: because she hath wrought folly in Israel, to play the whore in her father's house. Deut. XXII,21f.
(19) I.e., only if she committed incest with her father is she punished by burning, but not for playing the harlot with others. The Talmud explains further on why one should wish to interpret the passage thus.
(20) For if she commits incest with her father, he profanes her too.
(21) I.e., that her profanation is in respect of this tie.
(22) V. p. 337, n. 5.
(23) Heb. bogereth, v. p. 337, n. 5.
(24) Lev. XXI, 9.
(25) This is deduced by interpreting the copulative waw (and) as an extending particle.
Talmud - Mas. Sanhedrin 51a
from, this phrase I know the law only if she was married to a priest;1 but if she was married to a Levite, Israelite, heathen,2 a profaned person,3 bastard,4 or a Nathin,5 whence do we know that the same applies? From the verse: And the daughter of a man who is a priest, which teaches that even if she is married to one who is not a priest the same applies.6 Further: she [profaneth her father; she shall be burnt in fire] teaches that only she is punished by fire, but not her paramour, nor those who testify falsely against her. R. Eliezer said: If with her father, she is burnt; if with her father-in-law, she is stoned.7
The Master said: 'I might think that this applies even to the Profanation of the Sabbath.' But if she profaned the Sabbath, must she not be stoned?8 - Raba replied: This is taught according to R. Simeon, who regards burning a severer penalty.I might think that since the Divine Law has in general been stricter with the priests [than with the Israelites], giving them an additional number of precepts, therefore the priest's daughter [if she profaned the Sabbath] should be burnt; hence we are taught that this verse applies only to profanation by whoredom. But why should she differ from a priest himself?9 - I would think that a priest is punished more leniently, because he is permitted to work on the Sabbath in the sacrificial service;10 but since a priest's daughter is not so permitted, her punishment should be stoning. We are therefore taught otherwise.
'I might think that this applies even to an unmarried woman. But does not the Writ state: 'by playing the whore'? - This is taught on the view of R. Eliezer, who maintained: If an unmarried man cohabits with an unmarried woman without conjugal intent, he renders her a harlot.11 'But perhaps "her father" is stated in order to exclude others?' - How then would you explain the verse? That she committed adulterous incest with her father! If so, why only a priest's daughter: does not the same apply to an Israelite's daughter? For [did not] Raba say: R. Isaac b. Abudimi said unto me: 'We learn identity of law from the fact that hennah [they] occurs in two related passages, and likewise zimmah [wickedness] in two'?12 - The verse [she profaneth] is necessary. For l would think that this whole passage treats of incest with one's father, and the penalty of burning is prescribed here intentionally to obviate Raba's deduction.13 Hence the deduction [from she profaneth].
'The daughter of any priest: from this phrase I know the law only if she was married to a priest; if she was married to a Levite, Israelite, heathen, a profaned person, bastard, or a Nathin, whence do I know that the same applies? From the verse: And the daughter of a man who is a priest, which teaches that even if she is married to one who is not a priest the same applies.' But because she is married to one of these, is she no longer considered a priest's daughter? Moreover, does Scripture state . . . a priest's daughter married to a priest?14 - I might think that since Scripture states, if she profane herself by playing the whore, the law deals only with one who now profanes herself for the first time;15 but in these other cases where she was already profaned before [this law should not apply]. For, a Master stated : [The verse,] If the priest's daughter also be married unto a stranger, [she may not eat of an offering of the holy things]16 teaches that if she cohabits with one who is unfit for her,17 he disqualifies her [to eat of the holy food] - And [similarly] if she was married to a Levite or an Israelite, since Scripture also states, [But if a priest's daughter be a widow or divorced, and have no child] and is returned unto her father's her house, as in her youth, [she shall eat of father's meat, i.e. , of the holy food],18 it shows that as long as her husband [a Levite or Israelite] is alive, she must not eat of the holy food.19 Hence l would think that she should not be burnt; therefore the verse teaches otherwise.
Now this ruling [that even if married to a bastard, etc., she is burnt] does not agree with R. Meir's view. For it has been taught: If a priest's daughter, married to an Israelite, ate of terumah,20 she must repay the principals but not the additional fifth.21 [If she committed adultery] her penalty is burning. But if she was married to one unfit for her [e.g.,a bastard, etc.] she must repay the principal and the added fifth, and her penalty is strangulation: this is the ruling of R. Meir. But the Sages hold that in both cases she must pay the principal but not the fifth, and her penalty is burning.
'R. Eliezer said: If with her father, she is burnt; if with her father-in-law, she is stoned.' What is meant by 'her father' and 'her father-in-law'? If we say 'her father' means [that she committed whoredom] with her father, and 'her father-in-law' [that she did so] with her father-in-law: why speak particularly of a priest's daughter; an Israelite's daughter too is thus punished - a daughter [for incest with her father] by burning, and a daughter-in-law by stoning?-But 'her father' means 'under her father's authority',22 and 'her father-in-law' indicates 'under her father-in-law's authority'.23 Whose view is this? If the Rabbis? Do they not maintain that a nesu'ah is excluded [from strangulation and punished] by burning, but not so an arusah [who is stoned]? If R. Simeon's? Does he not maintain that both an arusah and a nesu'ah are burnt? And if R. Ishmael's?24 Does he not maintain that only an arusah is burnt, but not a nesu'ah, and accordingly, [when under the authority of] her father-in-law, she is strangled?25 - Rabin sent a message in the name of R. Jose son of R. Hanina:26 This is the explanation of the teaching.27 Indeed it is in accordance with the Rabbis' views and this is its meaning: Where an adulterous woman's death is more lenient than that of her father for incest [with his daughter], that is in the case of an Israelite's daughter, who is a arusah, her punishment being strangulation;28 then in the case of a priest's daughter, her punishment is the same as her father's, viz.,burning; but where an adulterous woman's penalty is greater than her father's, that is in the case of an Israelite's daughter, who is an arusah, her punishment being stoning,29 then in the case of a priest's daughter, her punishment is as that of her father-in-law for incest with her, viz.,by stoning.30 R. Jeremiah objected to this explanation: does then the Baraitha state 'greater' or 'lesser'? But R. Jeremiah explained it thus:
(1) The Talmud explains further on why such an assumption should be made.
(2) (Read with MSS 'Cuthean', v. Yad Ramah].
(3) The issue of a marriage forbidden by priestly law'; cf. Lev. XXI, 7, 14.
(4) The issue of adultery or incest forbidden on pain of death or Kareth: e.g.,the offspring of a father and his daughter, cp. Yeb. 49a.
(5) The Nethinim (Nathin, pl. Nethinim) are regarded in the Talmud as descendants of the Gibeonites, who, having obtained immunity during the Conquest of Canaan by a ruse, were degraded by Joshua to the position of 'hewers of wood and drawers of water' (Yeb. 78b; Josh. IX, 19-23). Actually they are first heard of as returning to Palestine after the Babylonian Exile (Ezra II, 58, VII, 20; Nehem. III, 26, 31). They served under the Levites in the Temple (Ezra VII, 24). Though first mentioned only after the return from the exile, it is stated that they were appointed by David to serve the Levites; hence they must have been well known in Israel long before the Babylonian Exile, in spite of their late mention. In Talmudic times they were placed on a very low level, being forbidden to intermarry with freeborn Israelites.
(6) Because 'man' (E.V. 'any') is superfluous; hence it teaches that only her father need be a priest for this law to apply.
(7) This is explained further on.
(8) Stoning is the penalty for desecrating the Sabbath, and it is surely not commuted to burning for a priest's daughter.
(9) If this be taught according to R. Simeon, why should I think that though a priest is stoned for desecrating the Sabbath - since nowhere does the Scripture differentiate between a priest and an Israelite in this respect, - his daughter is punished more severely by being burnt?
(10) All Sabbath laws were suspended in favour of the Temple service, for which male priests only were eligible.
(11) Whom a priest may not marry (Lev. XXI, 7); hence in his view whoredom includes pre-marriage unchastity.
(12) In Lev. XVIII,10 it is stated: The nakedness of thy son's daughter, or of thy daughter's daughter, even their nakedness thou shalt not uncover: for they (הנה hennah) are thine own nakedness. Further it is written (ibid. XVIII, 17): Thou shalt not uncover the nakedness of a woman and her daughter, neither shalt thou take her son's daughter, or her daughter's daughter, to uncover her nakedness; for they (הנה hennah) are her near kinswomen: it is wickedness (זמה zimmah). Just as in the latter verse, intercourse with one's wife's daughter is treated as with her granddaughter, so in the former case, incest with one's daughter is the same offence as with one's granddaughter. Though this is not explicitly stated, it is deduced from the fact that hennah occurs in both cases. Further, in Lev. XX, 14 it is stated: And If a man take a wife and her mother, it is wickedness (זמה zimmah): they shall be burnt with fire. The use of zimmah in Lev. XX, 14 and in Lev. XVIII, 17 show that burning by fire is the penalty in both cases; and the use of hennah in Lev. XVIII, 17 and Lev. XVIII, 10 shews that in Lev. XVIII, 10 too the penalty is burning (cf. the Euclidean axiom: the equals of equals are equal). Thus we see that incest between a man, even an Israelite, and his daughter is punished by burning. How then could we assume that the verse under discussion, which decrees burning as a penalty for whoredom by a priest's daughter (implying the exclusion of an Israelite's daughter), refers to incest with one's father, and consequently what need is there for the deduction from she profaneth?
(13) I.e., to shew that only a priest's daughter committing incest is burnt, but not an Israelite's daughter, who is differently punished. In that case, the identical phrasing of the verses cited by Raba would have to be otherwise interpreted.
(14) I.e., on what grounds could we assume at all that the law is applicable only if she married a priest?
(15) I.e., through her whoredom.
(16) Lev. XXII, 12.
(17) E.g., a Nathin or bastard; that is the meaning attached to a stranger.
(18) Ibid. 13.
(19) This too is regarded as a measure of profanation.
(20) Lit., 'that which is separated': the portion of the corn produce due to the priest.
(21) Which a non-priest had to pay for eating terumah, ibid. 14.
(22) I.e., when one is under the parental roof, viz., an arusah, v. p. 333, n. 3.
(23) I.e., when she is to longer under the parental roof, viz., a nesu'ah.
(24) His view is explained later.
(25) Not stoned; for since he maintains that a nesu'ah, if a priest's daughter, does not differ from an Israelite's daughter, her penalty is strangulation, as in the case of the latter.
(26) Here we have an example of a Talmudic responsum. Rabin migrated from Babylonia to Palestine, and wrote many letters from Babylonia to Palestine with the results of his researches. Cf. Keth. 49b; B.M. 114a; B.B. 139a,. 'Rabin sent' then will mean from Palestine to Babylonia.
(27) I.e., the Baraitha containing the statement of R. Eliezer.
(28) Whilst her father's penalty is death by burning.
(29) Which, according to the Rabbis, in severer than burning, the father's punishment.
(30) Rashi points out that it is unnecessary to liken her punishment to her father-in-law's, since the penalty of every arusah is stoning. But in any case the Talmud refutes this explanation.
Talmud - Mas. Sanhedrin 51b
In truth, this is in accordance with R. Ishmael's views, and this is its meaning: 'with her father', i.e. whilst under her parental roof [i.e., an arusah], her punishment is burning; 'with her father-in-law', i.e., for incest with her father-in-law, she is stoned; but if she committed adultery with any other person, she is strangled. Raba objected to this: Why this difference [in the meaning attached to the two phrases]? Either each is to be understood literally,1 or to refer to the authority under which she is?2 Hence Raba explained it thus: This is in agreement with R. Simeon [who holds burning to be the severest penalty]. R. Eliezer [who taught this] maintaining that a nesu'ah is as an arusah: just as with an arusah, [the penalty of a priest's daughter] is raised in stringency by one degree more [than that of an Israelite's daughter], viz. , from stoning to burning, so also with a nesu'ah the penalty is raised in stringency by one degree, viz., from strangulation to stoning.3 R. Hanina objected: But R. Simeon maintains that in both cases the penalty is burning! Hence Rabina explained it thus: This is really according to the Rabbis, but you must reverse the text, thus: If 'with her father' [i.e. an arusah], she is stoned; if 'with her father-in-law', [i.e., a nesu'ah], she is burned. And as to the phrase 'with her father'?4 He [R. Eliezer] is influenced by the general phraseology.5
R. Nahman said in the name of Rabbah b. Abbuha in the name of Rab: The halachah is in accordance with the message sent by Rabin in the name of R. Jose b. Hanina. R. Joseph queried: [Do we need] to fix a halachah for [the days of] the Messiah?6 - Abaye answered: If so, we should not study the laws of sacrifices, as they are also only for the Messianic era. But we say: Study and receive reward;7 so in this case too, study and receive reward: [He replied:] This is what I mean: Why state a halachah? In the course of the discussion, was there given a ruling at all?8
Now, what statement of R. Ishmael was referred to?9 - It has been taught: And the daughter of any priest, If she profanes herself by playing the whore:10 Scripture here speaks of a maiden [na'arah] who is an arusah. You say so, but perhaps it also refers to a nesu'ah? - The Writ sayeth: And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall be put to death.11 Now all are included in the terms 'adulterer' and 'adulteress', but the Writ excluded the daughter of an Israelite, teaching that she is stoned,12 and the daughter of a priest, teaching that she is burnt. Just as the exception made for an Israelite's daughter refers to an arusah, but not a nesu'ah;13 so also, when a priest's daughter was excepted, an arusah was so excepted, but not a nesu'ah. Further, false witnesses [in respect of the charge of adultery] and the paramour [of an adulterous woman] were [originally] included in the verse: [If a false witness rise up against any man to testify against him that which is wrong . . .] then ye shall do unto him, as he had thought to hove done unto his brother.14 - Now, how can the words, as he had thought apply to a Paramour!15 - But say thus: The punishment of her false witnesses Is included in the text referring to the death of her paramour,16 because Scripture states: then ye shall do unto him, as he had thought to have done unto his brother; implying, but not unto his sister.17 This is R. Ishmael's opinion. R. Akiba said: [A priest's daughter]. whether an arusah or a nesu'ah,is excepted [from the punishment of strangulation,] but is punished with fire. I might think that this applies even to an unmarried woman: but her father is mentioned in this passage, and her father is also mentioned elsewhere:18 just as elsewhere the reference is to whoredom by one who is bound to a husband, so here too. Thereupon R. Ishmael said unto him: If so, just as the second passage refers to a maiden [na'arah] who is an arusah, so this verse [treating of a priest's daughter] should be taken to refer to a maiden who is an arusah; [but if a nesu'ah, her punishment should be different]. R. Akiba replied: My brother, I interpret the and the daughter etc., when it would have been sufficient to say the daughter etc., as teaching the inclusion of a nesu'ah.19 R. Ishmael said to him: Shall we except this woman [i.e.,a nesu'ah from the punishment of strangulation] and impose [the severer penalty of] death by fire, because you interpret the superfluous 'waw' ['and']; if this superfluous wow indicates the inclusion of a nesu'ah, then include an unmarried woman too;20 whilst if it implies the exclusion of an unmarried woman [since the Deuteronomic passage explicitly relates to a married woman], then exclude a nesu'ah too. And R. Akiba?21 - [He holds that] the gezerah shawah serves the purpose to exclude an unmarried woman, whilst the superfluous 'waw' serves to indicate the inclusion of a nesu'ah. And R. Ishmael? - In raising the foregoing [objection] he thought that since R. Akiba had replied. 'I interpret the superfluous waw', it proved that he had withdrawn his deduction front the gezerah shawah.22 Now, how does R. Ishmael interpret this superfluous waw? - As shewing that which was taught by the father of Samuel b. Abin: Since we find Scripture differentiating in male [priests] between the [physically] unblemished and the blemished,23 I would think that a distinction must also be drawn in their daughters:24 therefore Scripture writes a pleonastic 'waw' [to teach the inclusion of the daughter of a physically blemished priest].25 And R. Akiba?26 - He deduces this from the verse: [for the offerings of the Lord made by fire, and the bread of their God,] they [i.e. the priests] do offer: therefore they shall be holy.27 And R. Ishmael? - He maintains that that verse could apply only to priests themselves,28 but not to their daughters. Hence the necessity of the pleonastic 'waw'.
Now how does R. Ishmael interpret
(1) I.e., incest with her father, or with her father-in-law.
(2) I.e., under her father's authority, viz., an arusah; under her father-in-law's authority, viz., a nesu'ah.
(3) And 'with her father', 'with her father-in-law', refer to status, under whose authority she is.
(4) Why is such a roundabout expression used instead of simply 'arusah' and 'nesu'ah'?
(5) This is in accordance with the printed text. Rashi, apparently on the basis of a slightly different reading, renders 'He is influenced by the phraseology of the first Tanna', who quotes from Lev. XXI, 9, in which 'her father' is mentioned. Tosaf., however, points out, that in many versions the text reads: why does he say, (if with) her father she is burnt? According to this, the question is: how did such an error arise in the text? To which the answer is: he is influenced by the Biblical phraseology: And the daughter of any priest . . . she shall be burnt with fire. Lev. XXI, 9.
(6) Since the Sanhedrin no longer had jurisdiction in capital offences, there is no practical utility in this ruling, which can become effective only in the days of the Messiah.
(7) [Learning has its own merit, quite apart from any practical utility that may be derived therefrom].
(8) Surely not! Since Rabin and Rabina agree on the point of law, and differ only on the interpretation of R. Eliezer's statement.
(9) This reverts to the former discussion, when it was said, this is according to R. Ishmael.
(11) Ibid. XX, 10. Wherever the manner of death is unspecified, strangulation is meant.
(12) Deut. XXII, 23f. referring to adultery by an arusah.
(13) Ibid. This explicitly treats of an arusah: if it be applied to a nesu'ah too, there is none to which Lev. XX, 10 can refer.
(14) Deut. XIX, 16,19.
(15) This is an interjection.
(16) That is, they are punished by the same death which they intended to have brought about on the paramour.
(17) Where the penalties differ; e.g.. when a priest's daughter commits adultery, she is burned, but her paramour is stoned; hence, if witnesses testified falsely on such a charge, they are to be stoned, not burned.
(18) Ibid. XXII, 21f.
(19) I.e., the deduction from the verbal identity (Gezerah Shawah, v. Glos.) of 'her father' does in fact apply only to an arusah: but the superfluous copulative wow (u) extends the law to embrace a nesu'ah too.
(20) So the commentary of Hananel; Rashi interprets: if the gezerah shawah (identical use of 'her father' in both passages) indicates the inclusion of a nesu'ah, etc. This interpretation is rather difficult, as R. Akiba did not include nesu'ah through the gezerah shawah.
(21) How would he meet this objection?
(22) For mere identity of phraseology is insufficient to deduce similarity of law. There must be a tradition from one's teacher, and supposedly handed down from scholar to scholar, going right back to Moses. (Pes. 66a: so Rashi's interpretation of the rule: No one may draw conclusions from identical phraseology on his own authority). Thus R. Ishmael thought that R. Akiba had abandoned this gezerah shawah, being doubtful of the authenticity of its tradition.
(23) Lev. XXI, 17, forbidding priests with a physical blemish to perform the sacrificial service.
(24) With respect to adultery. viz., that only the daughter of a physically perfect priest is burnt.
(25) Weiss, Dor, Vol. II, p. 105, quotes R. Ishmael's remark in this connection 'shall we exclude a nesu'ah because thou interpretest a superfluous 'waw' as being a protest against R. Akiba's method of interpretation? From the whole passage, however, we see that R. Ishmael was not fundamentally opposed to this at all, but merely disagreed on the actual application of the extension and apparent inconsistency in R. Akiba's distinction between a nesu'ah and an unmarried woman.
(26) Whence does he derive this latter deduction?
(27) Ibid. XXI, 6. Therefore they shall be holy is an emphatic assertion of their holiness, implying that they do not lose it even if blemished.
(28) Teaching that they retain their holiness even if blemished, e.g that they may not be defiled by the dead.
Talmud - Mas. Sanhedrin 52a
the verse, she profaneth her father?1 - He employs it in accordance with R. Meir's dictum, as it has been taught : R. Meir used to say: What is meant by the verse, she profaneth her father'? If he [the father] was regarded as holy, he is now regarded as profane;2 if he was treated with respect, he is now treated with contempt; and men say, 'Cursed be he who begot her, cursed be he who brought her up, cursed be he from whose loins she sprung. R. Ashi said: in accordance with whose view is a wicked man called 'the son of a wicked man', even if he is actually the son of a righteous man? - It is in accordance with this Tanna's dictum.3
THAT IS THE MANNER OF STONING.
To what does this refer?4 - To the statement [in a preceding Mishnah]: When the verdict [of guilty] was finally announced, he [the accused] was led out to be stoned . . .5 Now, the scaffolding [for stoning] was twice a man's height etc.6 And because the Tanna is about to teach the manner of death by fire, he sums up the foregoing with the words: THAT IS THE MANNER OF STONING etc.
MISHNAH. THE MANNER IN WHICH BURNING IS EXECUTED IS AS FOLLOWS: HE WHO HAD BEEN THUS CONDEMNED WAS LOWERED INTO DUNG UP TO HIS ARMPITS, THEN A HARD CLOTH WAS PLACED WITHIN A SOFT ONE,7 WOUND ROUND HIS NECK, AND THE TWO LOOSE ENDS PULLED IN OPPOSITE DIRECTIONS, FORCING HIM TO OPEN HIS MOUTH. A WICK WAS THEN LIT, AND THROWN INTO HIS MOUTH, SO THAT IT DESCENDED INTO HIS BODY AND BURNT HIS BOWELS. R. JUDAH SAID: SHOULD HE HOWEVER HAVE DIED AT THEIR HANDS [BEING STRANGLED BY THE BANDAGE BEFORE THE WICK WAS THROWN INTO HIS MOUTH, OR BEFORE IT COULD ACT], HE WOULD NOT HAVE BEEN EXECUTED BY FIRE AS PRESCRIBED. HENCE IT WAS DONE THUS: HIS MONTH WAS FORCED OPEN WITH PINCERS AGAINST HIS WISH, THE WICK LIT AND THROWN INTO HIS MOUTH, SO THAT IT DESCENDED INTO HIS BODY AND BURNT HIS BOWELS. R. ELEAZAR B. ZADOK SAID: IT ONCE HAPPENED THAT A PRIEST'S DAUGHTER COMMITTED ADULTERY, WHEREUPON BUNDLES OF FAGGOTS WERE PLACED ROUND ABOUT HER AND SHE WAS BURNT. THE SAGES REPLIED, THAT WAS BECAUSE THE BETH DIN AT THAT TIME WAS NOT WELL LEARNED IN LAW.
GEMARA. What is meant by a WICK? - R. Mathna said: A lead bar.8
Whence do we know this?9 - It is inferred from the fact that burning is decreed here;10 and was also the fate of the assembly of Korah,11 just as there the reference is to the burning of the soul, the body remaining intact, so here too. R. Eleazar said: It is deduced from the employment of the word 'burning' here and in the case of Aaron's sons;12 just as there the burning of the soul is meant, while the body remained intact, so here too.
Now, he who deduces it from the assembly of Korah, whence does he know [that they were thus burnt]? - Because it is written: [Speak unto Eleazar . . . that he take up the censers out of the burning . . . The censers of these sinners against their own souls,13 implying that their souls were burned, but their bodies were unharmed. And the other?14 He maintains that they were literally burnt [i.e., their bodies], and what is the meaning of against their own souls? - That they incurred the punishment of fire because of [the pollution of] their souls; as Resh Lakish [taught]. For R. Simeon b. Lakish said: What is the meaning of the verse, with hypocritical mockers in feasts, they gnashed upon me with their teeth?15 Because they hypocritically [i.e., polluting their own sincerity] flattered Korah in return for the feast he set before them, the Prince of Gehenna16 gnashed his teeth against them [for their destruction]. Now he [R. Eleazar] who infers it from the sons of Aaron, whence does he know [that their bodies were not burnt]? - Because it is written, And they died before the Lord,17 teaching that it was like normal death [from within]. And the other? - He maintains that they were actually burnt, whilst the verse, And the died before the Lord, shews that the fire commenced from within, as in normal death. For it has been taught: Abba Jose b. Dosethai said: Two streams of fire issued from the Holy of Holies, branching off into four, and two entered into each of their nostrils and burned them.18 But it is written, And the fire devoured them?19 - This implies them but not their garments.
But why should we not learn [the manner of death by fire] from the bullocks that were burnt,20 just as there they were actually burnt, so here too? - It is logical to learn this from man, because these have the following points in common: - [i] man, [ii] sin, [iii] soul, and [iv] piggul.21 On the contrÖry, should we not compare it rather to the burnt bullocks, since they have in common [i] the carrying out of God's command , and [ii] permanency?22 - Even so, the others have more in common.
Now, he who deduces it from the assembly of Korah, why did he not learn it from Aaron's sons? - Because they were actually burnt [this being his opinion]. Then why not deduce from them [that this shall be the method of burning]? - R. Nahman answered in the name of Rabbah b. Abbuha: The verse saith, But thou shalt love thy neighbour as thyself,23 [which implies:] choose an easy death for him.24 Now, since we have R. Nahman's dictum, what need is there of the gezerah shawah? - But for the gezerah shawah - I would think that burning of the soul, the body remaining intact, is not deemed burning at all; whilst as for [the implication of the verse], Thou shalt love thy neighbour as thyself, this can be fulfilled by piling up an abundance of faggots to cause a speedy death. Hence the teaching of the gezerah shawah.
Moses and Aaron once walked along, with Nadab and Abihu behind them, and all Israel following in the rear. Then Nadab said to Abihu, 'Oh that these old men might die, so that you and I should be the leaders of our generation.' But the Holy One, blessed be He, said unto them: 'We shall see who will bury whom.' R. Papa said: Thus men say: Many an old camel is laden with the hides of younger ones.'25
R. Eleazar said:
(1) Ibid. XXI, 9. Since R. Ishmael maintains that an arusah is burnt, but not a nesu'ah, deducing this by analogy, and not admitting the gezerah shawah based upon the phrase 'her father', what do these words teach?
(2) In the sense of not holy.
(3) That the father is cursed and reviled for his offspring's misdemeanours.
(4) [This is Rashi's reading, found also in MS.M.; cur edd.: What does be teach that he states?]
(5) Supra 42b.
(6) Supra 45a.
(7) The soft one alone could not exert sufficient pressure to open his mouth; whilst a hard one alone would bruise the skin and unnecessarily disfigure him (Rashi).
(8) 'Lit' in the Mishnah will therefore mean 'melted'.
(9) That death by fire was thus carried out, instead of burning the body.
(10) Lev. XXI, 9. She shall be burnt with fire.
(11) Num. XVII, 4. And Eliezer the priest look the brazen censers, wherewith they that were burnt had offered.
(12) Lev. X, 6. Let your brethren . . . bewail the burning which the Lord hath kindled.
(13) Num. XVII, 2f(E. V. XVI, 37f).
(14) R. Eleazar.
(15) Ps. XXXV, 16.
(16) In the valley to the south of Jerusalem, known as the valley of the son of Hinnom, children were at one time sacrificed to Moloch (II Kings XXIII, 10; Jer. II, 23; VII, 31f). For this reason the valley was deemed accursed, and Gehenna thus became a synonym for hell. It is assumed to be in charge of a demon prince, who voraciously demands multitudes of victims (Shab. 104a).
(17) Lev. X, 12.
(18) So that the fire commenced, within and spread without.
(19) Ibid. This implies limitation: 'them', but not something else; now, if they were entirely burnt, what does this word exclude?
(20) As sacrifices, where, of course, the carcasses were burnt. Lev.IV, 12 et passim.
(21) I.e., both refer to (i) man, (ii) punishment for sin, (iii) destruction of the soul, and (iv) in both there is no law of piggul. Piggul, lit., 'abomination,' a sacrifice slaughtered with the unlawful intention of eating it beyond the prescribed limits of time; for the flesh of sacrifices had to be eaten within prescribed times (v. Zeb. V, 2. 53a). But the burnt bullocks differed from man on all these points
(22) I.e., they have the following in common: (i) each is performed by man in obedience to God's command, but Aaron's sons and the assembly of Korah were destroyed by God himself; (ii) the law of execution by fire, as that of sacrifices, was of permanent validity, whereas in the other two cases their deaths were unique, the result of miracles confined to particular times.
(23) Lev. XIX, 18.
(24) But the burning of the body is a most painful death.
(25) I.e., many an old man surprises the young.
Talmud - Mas. Sanhedrin 52b
How is the scholar regarded by the ignorant? - At first, like a golden ladle; if he converses with him, like a silver ladle; if he [the scholar] derives benefit from him, like an earthen ladle, which once broken cannot be mended.1
Imarta the daughter of Tali, a priest, committed adultery. Thereupon R. Hama b. Tobiah had her surrounded by faggots and burnt. R. Joseph2 said: He [R. Hama] was ignorant of two laws. He was ignorant of R. Mathna's dictum3 and of the following Baraitha: And thou shalt come unto the priests, the Levites, and unto the judge that shall be in those days:4 This teaches that when the priesthood is functioning [in the Temple], the judge functions [in respect of capital punishment]; but when the priesthood is not functioning, the judge may not function.5
R. ELEAZAR B. ZADOK SAID, IT ONCE HAPPENED THAT A PRIEST'S DAUGHTER COMMITTED ADULTERY, etc.
R. Joseph said: It was a Sadducee6 Beth din that did this. Now, is this what R. Eleazar b. Zadok said, and did the sages answer him so? Has it not been taught: R. Eleazar b. Zadok said, 'I remember when I was a child riding on my father's shoulder that a priest's adulterous daughter was brought [to the place of execution], surrounded by faggots, and burnt.' The Sages answered him: 'You were then a minor, whose testimony is inadmissible'?7 - There were two such incidents.8 Now which incident did he first relate to them? Shall we say that he first told them of the incident first mentioned here [which happened in his majority]: but if he told them what happened in his majority, and they paid no attention to him, surely he would not proceed to tell them what occurred in his minority? - But he must have related this one [of the Baraitha] first, to which they replied: 'You were a minor.' Then he told them of the case that occurred in his majority, and they replied, 'That was done because the Beth din at that time was not learned in the law.'
MISHNAH. EXECUTION BY THE SWORD WAS PERFORMED THUS: THE CONDEMNED MAN WAS DECAPITATED BY THE SWORD, AS IS DONE BY THE CIVIL AUTHORITIES.9 R. JUDAH SAID: THIS IS A HIDEOUS DISFIGUREMENT; BUT HIS HEAD WAS LAID ON A BLOCK AND SEVERED WITH AN AXE.10 THEY REPLIED, NO DEATH IS MORE DISFIGURING THAN THIS.
GEMARA. It had been taught: R. Judah said to the Sages: I too know that this is a death of repulsive disfigurement, but what can I do, seeing that the Torah hath said, neither shall ye walk in their ordinances?11 But the Rabbis maintain: Since Scripture decreed the sword, we do not imitate them [when using their method]. For if you will not agree to this, then how about that which was taught: Pyres may be lit in honour of deceased kings,12 and this is not forbidden as being of the 'ways of the Amorites': but why so? Is it not written, neither shall ye walk in their ordinances? But because this burning is referred to in the Bible, as it is written, [But thou shalt die in peace:] and with the burnings of thy fathers . . .[so shall they burn for thee],13 it is not from them [the heathens] that we derive the practice. So here too, since the Torah decreed the sword,14 it is not from them [the Romans] that we derive the practice. Now we have learnt in another chapter, 'The following are decapitated: A murderer, and the inhabitants of a seduced city.'15 We know this to be true of the inhabitants of a seduced city, because it is written, ['Thou shalt surely smite the inhabitants of that city] with the edge of the sword.16 But whence do we know it of a murderer? - It has been taught: [And if a man smite his servant . . . and he die under his hand,'] he shall surely be avenged.17 Now I do not know what form this vengeance is to take; but when the Writ saith, And I will bring a sword upon you, that shall execute the vengeance of the covenant,18 I learn that vengeance is by the sword. But perhaps it means that he must be pierced through? - The Writ saith, with the edge of the sword. Then perhaps it means that he must be cut in two [lengthwise]? - R. Nahman said in the name of Rabbah b. Abbuha: Scripture teaches, But thou shalt love thy neighbour as thyself'19 choose an easy death for him. Now we find this law [of execution by the sword] when one murdered a slave; whence do we know that this law holds good if he murdered a free man? - Surely this can be deduced by reasoning from the minor to the major: if the murderer of a slave is decapitated, shall he who slays a free man be only strangled! Now, this answer agrees with the view that strangulation is an easier death; but what of the view that strangulation is more severe? It is then deduced from the following: It has been taught: [The verse], So shalt thou put away the guilt of the innocent blood from among you,20 serves to denote that all that shed blood are likened [in treatment] to the atoning heifer:21 just as there, it is done with a sword and at the neck, so here too, execution is with the sword and at the neck [i.e., the throat]. If so, just as there it was done with an axe, and on the nape of the neck, so here too? - R. Nahman answered in the name of Rabbah b. Abbuha: Scripture saith: But thou shalt love thy neighbour as thyself:22 choose an easy death for him.
MISHNAH. STRANGULATION WAS THUS PERFORMED: - THE CONDEMNED MAN WAS LOWERED INTO DUNG UP TO HIS ARMPITS, THEN A HARD CLOTH WAS PLACED WITHIN A SOFT ONE, WOUND ROUND HIS NECK, AND THE TWO ENDS PULLED IN OPPOSITE DIRECTIONS UNTIL HE WAS DEAD.
GEMARA. Our Rabbis taught: [And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife the adulterer and the adulteress shall surely be put to death].23 ' The man 'excludes a minor; ' that committeth adultery with another man's wife' excludes the wife of a minor; 'even he that committeth adultery with his neighbour's wife' excludes the wife of a heathen; 'shall surely be put to death', by strangulation. You say, by strangulation; but perhaps one of the other deaths decreed by the Torah is meant here? - I will answer you: Whenever the Torah decrees an unspecified death penalty, you may not interpret it stringently but leniently:24 this is R. Josiah's view. R. Jonathan said: Not because strangulation is the most lenient death, but because by every unspecified death in the Torah strangulation is meant. Rabbi [proceeding to demonstrate this] said: Death by God is mentioned in Scripture;25 and death by man is also decreed. Just as the death by God26 leaves no mark [of violence on the body], so also death by man must leave no mark [of violence], a condition which only strangling fulfils. But may it not apply to burning?27 Since the Divine Law explicitly decreed burning for a priest's adulterous daughter, it follows that the adulterous married [Israelite] woman is not put to death by burning.
(1) This passage in inserted here because the assembly of Korah has just been mentioned, who were scholars 'the elect men, of the assembly' (Num. XVI, 2). These, becoming over familiar with Korah and accepting gifts from him, lost his esteem, until ultimately he incited them to support him in his revolt against Moses.
(2) (First of the Saboraim, v. Funk, Die Juden in Babylonien. II, 123.]
(3) That burning was carried out by pouring molten lead down the condemned man's throat.
(4) Deut. XVII, 9.
(5) Thus R. Hama, an Amora living long after the destruction of the Temple, had no jurisdiction for capital punishment. [According to Funk, loc. cit., R. Hama's rigorous sentence was prompted by his desire to combat the Mazdakian doctrine of the community of wives that had found many adherents in his day.]
(6) The party opposed to the Pharisees, and drawing their support mainly from the aristocratic classes. As they represented the nobility and wealth of the country, their interests were centred chiefly in the political, not the religious life, of the people. Their origin is wrapped in obscurity (Weiss, Dor, 1, 100); but Halevy, Doroth Voi. III: 'The Sadducees and Boethusians', regards them as the children of the Hellenizing Jews in the days of the Maccabeans; he denies that they were a religious party at all. The passage from Josephus (Ant. XIII, 10, 6) upon which this assertion is commonly based is explained by him as referring to the rejection of distinctive Rabbinic ordinances as apart from laws derived through interpretation of Scripture. In regard to criminal jurisdiction, they were very rigorous and, as seen in this passage, carried out the penalty of death by fire in a literal manner. Halevy (op. cit. Vol. III, p. 412f) observes that the reply of the Sages to R. Eleazar b. Zadok, - Because the Beth din at that time (amplified by R. Joseph as meaning a Beth din of the Sadducees) were not well learned in the law', shews that their ruling was in the first instance not based on the principle of literal interpretation, but the result of ignorance, it was only subsequently that such ruling crystallized into definite principles. J. Derenbourg (Essai, p. 251, n. 2) suggests that the burning of the priest's adulterous daughter, as described by R. Eleazar b. Zadok, took place during the short interval between the death of Festus, the Roman Procurator, (in 62 C.E.) and the coming of Albinus (63 C.E.). during the High-Priesthood of Hanan b. Hanan (a Boethusian mentioned in Tosef. Yoma i). Cp. also ibid p. 262.
(7) This refutation differs from that of the Mishnah.
(8) One taking place during R. Eleazar's minority, the other during his majority. The answer in the Mishnah was in respect of the other.
(9) Under the Empire the Romans practised various forms of execution. Execution by the axe after flogging, previously confined to slaves, was revised in the early Empire and applied to citizens too. (Tac. An. II, 32; Suet. Nero, 49). Beheading by the sword ('decollatio') was also common, Sandys: A Companion to Latin Studies, p.339. With the introduction of the later, the former was prohibited (Hast. Dict. IV, 299), and therefore R. Judah stigmatises beheading by the sword as a Roman practice, and prefers the axe instead, though that too was formerly employed by the Romans.
(11) Lev. XVIII, 3. Hence the method of the civil authorities - i.e., the Romans - must not be used.
(12) Cp. 'And with the burnings of thy fathers, the former kings which were before, so shall they make a burning for thee (Jer. XXXIV, 5). This does not refer to the cremation of the body, but to the funeral pyre lit in honour of kings. The pyre consisted of the royal bed and his general utensils. The same honour was paid to Patriarchs, and the greater the value of the things burnt, the greater the honour. A.Z. 11a. (The A. V. of Jer. XXXIV, 5, 'so shall they burn odours for thee', is not warranted by the text.)
(13) Jer. XXXIV, 5.
(14) V. Infra.
(15) Infra 76b.
(16) Deut. XIII, 18.
(17) Ex. XXI, 20.
(18) Lev. XXVI, 25.
(19) Ibid. XIX, 18.
(20) Deut. XXI, 9.
(21) Lit., 'the heifer, the neck of which is broken.'
(22) Lev. XIX, 18.
(23) Ibid. XX, 10.
(24) Lit., 'attract it to stringency etc'. Hence strangulation, the easiest of deaths, must be meant.
(25) E.g., God's slaying of Onan, Gen. XXXVIII, 10.
(26) I.e., a normal death, which leaves the body intact.
(27) Since, as explained above, an inner fire was applied, leaving the body intact.
Talmud - Mas. Sanhedrin 53a
Now, R. Jonathan's view raises no difficulty, its reason being explained by Rabbi. But on R. Josiah's view, how do we know that there is death by strangulation at all; perhaps the sword is meant?1 - Raba replied: It is a tradition that there are four deaths. Why does R. Jonathan say, 'not because strangulation is the most lenient death'? - Because his dispute with R. Josiah is on the same lines as that of R. Simeon and the Rabbis.2
R. Zera asked of Abaye; Those who are stoned, but in whose case Scripture does not explicitly decree stoning,3 so that we derive the penalty by analogy of a necromancer, or a wizard,4 from which phrase do we deduce it: from 'they shall surely be put to death', or from 'their blood shall be upon them'?5 - He replied: It is deduced from the phrase 'their blood shall be upon them,; for if it is inferred from the passage 'they shall surely be put to death', what need is there of the words 'their blood shall be upon them'? But do you say that it is deduced from 'their blood shall be upon them'; what need is there then of the phrase 'they shall surely be put to death'? - Even as it has been taught: He that smote him shall surely be put to death; for he is a murderer.6 I only know that he may be executed with the death that is decreed for him: Whence do I know that if you cannot execute him with that death, you may execute him with any other death? - From the verse: He that smote him shall surely be put to death, implying in any manner possible.7
R. Aha of Difti questioned Rabina: Now, had the deduction been from the phrase, they shall surely be put to death - what would be R. Zera's difficulty?8 Shall we say that his difficulty would be in respect of [adultery with] a married woman,9 namely, that we ought to learn the manner of death from the law of a necromancer or a wizard; just as there it is stoning, so here too?10 But since the Divine Law ordained stoning for an arusah,11 it follows that a nesu'ah is not stoned!12 If, again, the difficulty would arise in respect of one who smites his father or mother;13 namely, that we ought to learn [by analogy of a necromancer or a wizard [that he is stoned]?14 But instead of deducing it from the necromancer, etc., deduce it rather from adultery with a married woman [who is strangled], since you may not make a deduction in favour of a stringent penalty in preference to a lenient one.15 - He replied: His difficulty would be in respect of all others who are stoned, for if it [the punishment of them by stoning] is deduced from the phrase, they shall surely be put to death, why deduce it from a necromancer and a wizard; deduce it rather from the adultery of a married woman?16
MISHNAH. THE FOLLOWING ARE STONED: HE WHO COMMITS INCEST WITH HIS MOTHER, HIS FATHER'S WIFE, OR HIS DAUGHTER-IN-LAW; HE WHO SEXUALLY ABUSES A MALE OR BEAST; A WOMAN WHO COMMITS BESTIALITY WITH A BEAST; A BLASPHEMER; AN IDOLATER; HE WHO GIVES OF HIS SEED TO MOLECH; A NECROMANCER OR A WIZARD; ONE WHO DESECRATES THE SABBATH; HE WHO CURSES HIS FATHER OR MOTHER; HE WHO COMMITS ADULTERY WITH A BETROTHED MAIDEN; HE WHO INCITES [INDIVIDUALS TO IDOLATRY]; HE WHO SEDUCES [A WHOLE TOWN TO IDOLATRY];17 A SORCERER; AND A WAYWARD AND REBELLIOUS SON.
ONE WHO [UNWITTINGLY] COMMITS INCEST WITH HIS MOTHER INCURS A PENALTY IN RESPECT OF HER BOTH AS HIS MOTHER AND AS HIS FATHER'S WIFE.18 R. JUDAH SAID: HE IS LIABLE IN RESPECT OF HER AS HIS MOTHER ONLY. ONE WHO COMMITS INCEST WITH HIS FATHER'S WIFE INCURS A PENALTY IN RESPECT OF HER BOTH AS HIS FATHER'S WIFE, AND AS A MARRIED WOMAN. [HE IS GUILTY IN RESPECT OF THE FORMER] BOTH DURING HIS FATHER'S LIFETIME AND AFTER HIS DEATH, WHETHER SHE WAS WIDOWED FROM ERUSIN19 OR FROM NESU'IN.18 HE WHO COMMITS INCEST WITH HIS DAUGHTER-IN-LAW INCURS A PENALTY IN RESPECT OF HER BOTH AS HIS DAUGHTER-IN-LAW AND AS A MARRIED WOMAN. [HE IS GUILTY IN RESPECT OF THE FORMER] BOTH DURING HIS SON'S LIFETIME AND AFTER HIS DEATH, WHETHER SHE WAS WIDOWED FROM ERUSIN OR FROM NESU'IN.
GEMARA. It has been taught: R. Judah said: If his mother was unfit for his father, he is guilty only in respect of her maternal relationship to him. What is meant by unfit for him? Shall we say, forbidden to him on pain of extermination20 or death inflicted by the Beth din? This would prove that the Rabbis21 hold that even for such he incurs a twofold penalty. But how so, seeing that his father cannot be legally married to her at all?22 - Hence it must refer to a woman who is forbidden to him in virtue of a negative precept,23 R. Judah agreeing with R. Akiba, who holds that Kiddushin is not valid between those who are interdicted to each other by a negative command.
R. Oshaia objected: [We have learnt:] A woman who is forbidden [to her deceased husband's brother] by a positive precept, or on the score of sanctity, must perform the halizah ceremony,24 but may not marry her brother-in-law.
(1) Since the only ground for his assertion is the leniency of strangulation, perhaps there are only three death penalties, and when unspecified death is decreed in the Torah, it means the sword, the most lenient of the three.
(2) As to which is the easiest death (v. supra 50b). R. Jonathan maintaining that strangulation is not the easiest.
(3) For a number of offences such as idolatry, adultery by a betrothed maiden, desecration of the Sabbath, etc., Scripture explicitly ordains stoning. But in the case of others, e.g., witchcraft, incest, incitement to idolatry, etc., Scripture merely decrees death, and by a gezerah shawah we learn that stoning is meant.
(4) Cf. infra 54a.
(5) Lev. XX, 27 A man also or a woman that hath a familiar spirit (necromancer), or that is a wizard, they shall surely be put to death: they shall stone them with stones: their blood shall be upon them. In the case of all other malefactors who are stoned, though stoning is not explicitly stated, the two phrases 'they' shall surely be put to death' and 'their blood shall be upon their head' occur.
(6) Num. XXXV, 21.
(7) This is learnt from the emphatic 'surely', expressed in Hebrew' as usual, by the insertion of the infinitive before the finite form of the verb. מות יומת V. supra 45b.
(8) For since he asked from which phrase the deduction is made, it is obvious that if from one particular phrase, a difficulty would arise.
(9) For which it was said above, that the death penalty being unspecified, it is strangulation.
(10) I.e. , instead of regarding it as an unspecified death penalty, why not treat it as explicit, in virtue of the phrase they shall surely be put to death, written also in the case of adultery with a married woman.
(11) Deut. XXII, 23f.
(12) So that this difficulty falls to the ground.
(13) Who is strangled, infra 84b.
(14) Since the phrase he shall surely be put to death (Ex. XXI, 15) is written of him too.
(15) For as the same phrase (v. p. 375. n.7) occurs in the three places. viz., (i) necromancer etc. (stoning), (ii) married woman (strangulation), and (iii) he that smites his father or mother, the last to be deduced from one of the first two, it follows, that one must incline to leniency. So that even if the deduction were made from the phrase, they shall surely be put to death, it would be still correct to say that one who smites his father or mother is strangled.
(16) Since the deduction must be in favour of the more lenient death.
(17) The former is called mesith: the latter maddiah.
(18) Hence if unwittingly, he is bound to bring two sin-offerings.
(19) V. p. 333, n. 3.
(20) Divine punishment (Kareth) through sudden or premature death, opposed to capital punishment at the hand of man, v. Glos.
(21) Represented by the anonymous opinion in the Mishnah.
(22) Lit., 'he has no claim of kiddushin in her regard'. Kiddushin (marriage betrothal) is invalid when contracted between parties forbidden to each other under such severe penalties. Consequently, she is not his wife, and her son, in committing incest, does not transgress the interdict attaching to one's father's wife.
(23) Which carries with it the penalty of flogging, but not of death or extermination; e.g. a bastard or a nathin or a divorcee in respect of a priest. The Sages maintain that in such cases kiddushin, though forbidden, is valid if contracted.
(24) V. p. 331, n. 7.
Talmud - Mas. Sanhedrin 53b
Now 'forbidden by a positive precept' means the prohibitions in the second degree,1 imposed by the Soferim,2 and why is it thus designated? Because it is a 'positive precept' to obey the Sages. 'Forbidden on the score of sanctity' refers to the prohibition of a widow to [marry] a High Priest, and of a divorcee or a haluzah3 to marry an ordinary priest; and why is it so called? Because it is written, they [sc. the priests] shall be holy unto their God.4 And it has been taught thereon: R. Judah reversed the definition. Now, though reversing the definition, he agreed on the fundamental law, that these required halizah [before being free to marry others]. But if you maintain that R. Judah agreed with R. Akiba [on the invalidity of kiddushin between those who are forbidden by a negative command], then consider: R. Akiba places those who are forbidden by a negative command in the same category as those who are forbidden on pain of extermination; but are not the latter exempt from both halizah and Levirate marriage?5 - R. Judah reverses the definition according to the ruling of the first Tanna, with which, however, he disagrees.6
When R. Isaac came,7 he taught as we have learnt [in our Mishnah]: R. Judah said, he incurs guilt only on account of her maternal relationship to him.8 Now why is this? - Abaye said: Scripture saith, The nakedness of thy father, or the nakedness of thy mother, shalt thou not uncover, she is thy mother.9 [This teaches: ] You must punish him for maternal incest, but not for incest with his father's wife. If so, what of the verse, The nakedness of thy father's wife shalt thou not uncover: It is thy father's nakedness?10 Does it not imply, you may penalise him for incest with his father's wife, but not for maternal incest? In that case, if she is both his mother and his father's wife, one verse implies the exclusion of maternal incest [as the incriminating offence] - and the other excludes incest with his father's wife [as punishable].11 Now if he is punished for incest with his mother, even when not his father's wife, and with his father's wife, though not his mother-shall we say that when she is both his mother and his father's wife, he incurs no penalty at all? A further difficulty is this: Do not the Rabbis admit the existence of this verse, 'she is thy mother'?12 But they interpret it as teaching the law deduced by R. Shisha, the son of R. Iddi;13 in that case, R. Judah must also utilise it for the same purpose.14 But R. Aha the son of Ika said thus: The Writ sayeth: [she is thy mother: thou shalt not uncover] her nakedness.15 This teaches: You may penalise him fo¦ one degree of 'nakedness', but not for two degrees,16 If so, what of the verse: Thou shalt not uncover the nakedness of thy daughter-in-law: She is thy son's wife: thou shalt not u.cover her nakedness?17 Does this too teach: You may penalise him for one degree of 'nakedness', but not for two? But we have learnt: HE WHO COMMITS INCEST WITH HIS DAUGHTER-IN-LAW INCURS A PENALTY IN RESPECT OF HER BOTH AS HIS DAUGHTER-IN-LAW AND AS A MARRIED WOMAN. (HE S GUILTY IN RESPECT OF HER BOTH DURING HIS SON'S LIFETIME AND AFTER H|S DEATH); and R. Judah does not dispute this! But since she is but one person, though forbidden in a double capacity, the Writ saith, 'her nakedness' [singular]: here too then, [in the ca±e of one's mother who is also the father's wife] since sh# is one person, even if she were doubly forbidden, the Writ saith: 'her nakedness'.18 - But Raba answered thus:+R. Judah maintains that the nakedness of thy father [thou shalt not uncover], means thy father's wife, deducing this by a gezerah shawah,19 and it applies to her whether she is his mother or not; whence do we know then that one's mother who is not his father's wife is likewise forbidden? - From the verse, the nakedness of thy mother shalt thou not uncover. [Hence the phrase,] 'she is thy mother' teaches that he is guilty only on account of her maternal relationship, but not because she is his father's wife.20
(1) This refers to a Rabbinical ordinance extending the prohibition of incest to one degree beyond the Biblical interdict, e.g., the Bible forbids one's mother: the Rabbis added one's maternal grandmother. The Bible forbids the father's wife: the Rabbis extended this to the grandfather's wife. The full list is given in Yeb. 21a. V. supra 27b seqq.
(2) Soferim, lit., 'scribes.' Originally it meant people skilled in writing (cf. II Sam. VIII, 17; II Kings XIX. 2). Later, in the time of Ezra, it referred to the body of teachers wh² interpreted the Law to the people, and then it came to mean teachers generally. Usually, when employed in the Talmud, it applies to teachers up to and including Simon the Just. Consequently, when an ordinance is described as a measure of the Soferim, it must have been of great antiquity. But occasionally the designation is applied to later teachers too; e.g., in J. Ber. I, 7, and R.H. 19a.
(3) A woman freed from Levirate marriage, by the ceremony of halizah.
(4) Lev. XXI, 6. This relates to these forbidden marriages.
(5) I.e. 'a woman standing in such relationship to her brother-in-law is automatically free, without the halizah ceremony.
(6) I.e., R.. Judah maintains that in such cases there is neither halizah nor levirate marriage; but granted the view of the first teacher that halizah is obligatory, he holds that the defxnition must be reversed.
(7) From Palestine to Babylon. With the decay of the Palestinian academies in the fourth century, many scholars emigrated from Palestine. These brought with them traditional teachings of the Tannaim.
(8) In all cases, not, as stated in the Baraitha, only when she is forbidden to his father.
(9) Lev. XVIII, 7.
(10) Ibid. 8.
(11) Thus leaving no grounds for punishment at all. Or, as Rashi prefers, though admitting that this is undoubtedly punishable, the two verses contradict each other as to the grounds of punishment. On this interpretation, Rashi omits the following passage, 'Now . . . at all'.
(12) I.e. , of course they do, yet they do not agree with R. Judah's view.
(13) This is given further on.
(14) Thus the question remains, what is R. Judah's reason?
(16) Where a woman stands in a dual relationship of consanguinity, a penalty is incurred only in respect of one.
(17) Ibid. XVIII, 15.
(18) I.e., the use of the singular cannot teach that a penalty can be imposed only for one degree of consanguinity.
(19) As shewn further on.
(20) Thus, Raba agrees with Abaye that R. Judah's reason is the limitation implied in the phrase 'she is thy mother'. But he disposes of the consequent difficulty. viz., that of the verse, it is thy father's nakedness in the following way: The dictum, The nakedness of thy father shalt thou not uncover, refers to his father's wife, whether his mother or not; and so far, (without an additional limiting phrase) it is implied that in both cases the interdict is on account of paternal, not maternal consanguinity. Hence, when the following verse states, (The nakedness of thy father's wife thou shalt not uncover:) it is thy father's nakedness, it cannot mean that guilt is incurred only on account of paternal, but not maternal relationship, since that has already been implied in the preceding verse, the nakedness of thy father . . . shalt thou not uncover. Therefore the limitation undoubtedly intended by the latter verse must be otherwise interpreted. (This is done further on.) Now, since the nakedness of thy father should imply that whether she is his mother or not he is penalised on account of paternal consanguinity, it follows that when the same verse inserts a limiting clause, 'she is thy mother', the limitation must apply to that which has already been expressed, viz. , that the father's wife, if also one's mother, is forbidden on account of maternal, not paternal, consanguinity. This is more fully explained in the next passage.
Talmud - Mas. Sanhedrin 54a
It has been taught in support of Raba; [And the man that lieth with his father's wife hath uncovered his father's nakedness: both of them shall surely be put to death,' their blood shall be upon them.]1 The man excludes a minor; that lieth with his father's wife, implies whether she is his mother or not. Whence do I know that his mother who is not his father's wife [is also thus forbidden]? - From the verse, [he] hath uncovered his father's nakedness. For this is redundant,2 in order that an analogy may be drawn therefrom and identity of meaning based on a gezerah shawah deduced.3 [They] shall surely be put to death, by stoning. You say, by stoning; but perhaps it means by one of the other deaths decreed in the Torah? - The Writ saith here, their blood shall be upon them; and in the case of a necromancer or a wizard, the Writ saith likewise, their blood shall be upon them;4 just as there, stoning is meant, so here too. Now, in this verse, we are informed of the penalty: whence do we know the formal prohibition?5 - From the verse, The nakedness of thy father . . . shalt thou not uncover:6 the nakedness of thy father means thy father's wife. You say so: but perhaps it has its literal meaning?7 - It is here said, The nakedness of thy father . . . shalt thou not uncover; and elsewhere8 it is said, [he] hath uncovered his father's nakedness: just as there the reference is to the opposite sex, so here too; and it implies his father's wife, whether his mother or not. Whence do we know [that this law applies to] his mother, even if she is not his father's wife? - From the verse, The nakedness of thy mother thou shalt not uncover. From this I learn only the formal prohibition, viz., that the Scripture interdicts his mother, though not his father's wife, just as his father's wife. Whence do I derive the punishment?9 - It is here stated , the nakedness of thy father . . . thou shalt not uncover,' and It is said elsewhere, [he] hath uncovered his father's nakedness: just as the Writ assimilated his mother, when not his father's wife, to his mother who was also his father's wife, in respect of formal prohibition, so it assimilated her in respect of punishment. She is thy mother; this teaches, you must punish him in respect of her as a mother, but not as his father's wife.10 But the Rabbis contend: the nakedness of thy father is literally meant. But is this not taught by the verse: Thou shalt not lie with mankind as with womankind?11 - This teaches that a double penalty is incurred; and as Rah Judah said: If a heathen committed pederasty with his father or with his paternal uncle he incurs a double penalty. Raba said: This dictum of Rab Judah presumably refers to a Jew, the offence having been committed unwittingly, and the penalty mentioned being a sacrifice; whilst the designation 'heathen' is a euphemism.12 For if you will say that he meant a heathen literally, what is his penalty? Death! Will you slay him twice? It has been taught likewise: He who commits pederasty with his father or with his paternal uncle incurs a twofold penalty. Some say that this does not agree with R. Judah [of the Mishnah].13 But others maintain that this may agree even with R. Judah, and he deduces a twofold penalty by reasoning from the minor to the major, basing his argument upon the law pertaining to a paternal uncle, [thus:] If for a paternal uncle, who is but a relation of one's father, a twofold penalty is incurred,14 how much more so is a double penalty incurred for pederasty with one's father. These two conflicting views are involved in the dispute of Raba and Abaye,15 one maintaining that punishment is imposed as a result of a minor to a major conclusion, the other maintaining that It is not.16
Now, whence do the Rabbis derive a formal prohibition against a father's wife?17 - From the verse, The nakedness of thy father's wife thou shalt not uncover.18 And R. Judah? - He maintains that this verse interdicts her after his father's death. And the Rabbis?They maintain that this is derived from it is thy father's nakedness.19 And R. Judah? - He utilises it to teach that he is punished in respect of her as his father's wife, but not as a married woman.20 But we have learnt, ONE WHO COMMITS INCEST WITH HIS FATHER's WIFE INCURS A PENALTY IN RESPECT OF HER BOTH AS HIS FATHER'S WIFE AND AS A MARRIED WOMAN. [HE IS GUILTY IN RESPECT OF THE FORMER] BOTH DURING HIS FATHER'S LIFETIME AND AFTER HIS DEATH; and R. Judah does not dispute it? - Abaye answered: He does dispute it in the Baraitha.
Now, whence do the Rabbis derive punishment for incest with one's father's wife after the former's death? It is all well according to R. Judah, for he derives it by means of the gezerah shawah; but whence do the Rabbis derive it? They answer thus: [he] hath uncovered his father's nakedness,21 which R. Judah utilises for a gezerah shawah, is rather to be employed as teaching punishment for incest with one's father's wife after his death.
Now, whence do the Rabbis derive punishment for incest with one's mother who is not his father's wife?22 - R. Shisha the son of R. Iddi said: The Writ saith, she is thy mother,23 thereby teaching that one's mother, even if not his father's wife, is exactly as his father's wife.24 HE WHO COMMITS INCEST WITH HIS DAUGHTER-IN-LAW, etc. Why is he not also guilty in respect of her as his son's wife?25 - Abaye answered: The Writ commences with his daughter-in-law, and concludes with his son's wife,26 teaching that they are identical.27 MISHNAH. HE WHO COMMITS SODOMY WITH A MALE OR A BEAST, AND A WOMAN THAT COMMITS BESTIALITY ARE STONED. IF THE MAN HAS SINNED, WHEREIN HAS THE ANIMAL OFFENDED? BUT BECAUSE MAN WAS ENTICED TO SIN THEREBY,28 SCRIPTURE ORDERED THAT IT SHOULD BE STONED. ANOTHER REASON IS THAT THE ANIMAL SHOULD NOT PASS THROUGH THE STREETS, WHILST PEOPLE SAY, THIS IS THE ANIMAL ON ACCOUNT OF WHICH SO AND SO WAS STONED.
GEMARA. Whence do I know that pederasty is punished by stoning? - Our Rabbis taught : [If a man lieth also with mankind, as the lyings of a woman,29 both of them have committed on abomination: they shall surely be put to death; their blood shall be upon them,]30 A man - excludes a minor; [that] lieth also with mankind - denotes whether an adult or a minor; as the lyings of a woman - this teaches that there are two modes of intimacy,31 both of which are punished when committed incestuously. R. Ishmael said: This verse comes to throw light [upon pederasty] but receives illumination itself.32 They shall surely be put to death: by stoning. You say, by stoning: but perhaps some other death decreed in the Torah is meant? - Their blood shall be upon them is stated here, and also in the case of one who has a familiar spirit or is a wizard:33 just as there the reference is to stoning, so it is here too.
(1) Lev. XX, 11.
(2) In a gezerah shawah, the word used as a basis of deduction must be otherwise redundant (מופנה), being required for no other purpose. This is the opinion of R. Ishmael and R. Eliezer; the former deeming it sufficient if the redundancy is in one of the passages only, the latter insisting that the word must be superfluous in both. R. Akiba, however, maintained that such redundancy, even in one passage, is unnecessary.
(3) The gezerah shawah, whereby this phrase is made to include one's mother, is given further on.
(4) Lev. XX, 27. A man also or a woman that hath a familiar spirit (i.e., a necromancer), or that is a wizard, shall surely be put to death: they shall stone them with stones, their blood shall be upon them.
(5) It is an axiom that before punishment can be imposed for any act, it must be explicitly prohibited. Now the whole of this verse merely decrees the punishment to be inflicted: hence the Talmud asks, where in the formal prohibition?
(6) Ibid. XVIII, 7.
(7) In which case it should be part of the wider injunction of Lev. XVIII, 22: Thou shalt not lie with mankind as with womankind.
(8) Ibid. XX, 11.
(9) I.e., that it is a punishable offence too; for no punishment is mentioned in this verse.
(10) Thus the whole Baraitha supports Raba's statement.
(11) Lev. XVIII, 22.
(12) Not wishing to ascribe such a gross offence to a Jew.
(13) Since he does not interpret the verse, the nakedness of thy father, literally, there is only one prohibition against pederasty, viz., that of Lev. XVIII, 22; hence in his view there is only one penalty, no matter with whom the offence is committed.
(14) This is deduced from the verse (Lev. XVIII, 14), thou shalt not uncover the nakedness of thy father's brother, thou shalt not approach to his wife. Since his wife is specifically prohibited, the first half of the verse must be understood literally. Consequently, it is twice prohibited. (for it is also included in the prohibition of Lev. XVII, 22) and hence a double penalty is incurred.
(15) Infra 76a.
(16) On the first view R. Judah may hold that a double penalty is incurred for pederasty with one's father. But on the second, this cannot be so. For he does not interpret the nakedness of thy father literally. Hence there is only one injunction (Lev. XVIII, 22) against this, and consequently only one penalty, the ad majus conclusion being insufficient to impose one.
(17) Since they interpret the nakedness of thy father literally.
(18) Ibid. XVIII, 8.
(19) Which being redundant, extends the prohibition to after his father's death.
(20) As she stands in a double relationship to him, being his father's wife and at the same time a married woman, which is separately forbidden in Lev. XVIII, 20, the emphatic 'she is thy father's nakedness' shews that the latter relationship is not considered in this matter.
(21) Ibid. XX, 11.
(22) This being nowhere stated.
(23) Ibid XVIII, 7.
(24) I.e., the emphasis of the clause teaches that.
(25) Since there are two prohibitions, viz. Thou shall not uncover the nakedness of thy daughter-in-law; and, she is thy son's wife, thou shalt not uncover her nakedness (ibid. XVIII, 15).
(26) She is thy son's wife refers back to the word daughter-in-law.
(27) I.e., that it is to be regarded as one prohibition, not two, but that it applies even after the son's death.
(28) Lit., 'a stumbling block has come to the man through it.'
(29) Lit. rendering of משכבי זכר translated 'as he lieth with a woman'.
(30) Ibid. XX, 13.
(31) Natural and unnatural.
(32) For the phrase, the lyings of a woman, is redundant in so far as it teaches that even unnatural pederasty is punishable, since all pederasty is such. Hence its teaching is thrown back upon itself, viz., that unnatural cohabitation is punishable when committed incestuously.
(33) Ibid. XX, 27.
Talmud - Mas. Sanhedrin 54b
This teaches the punishment: whence do we derive the formal prohibition? - From the verse, Thou shalt not lie with mankind, as with womankind: it is an abomination.1 From this we learn the formal prohibition for him who lies [with a male]: whence do we know a formal prohibition for the person who permits himself thus to be abused? - Scripture saith: There shall be no sodomite of the sons of Israel:2 and it is further said, And there were also sodomites in the land: and they did according to the abominations of the nations which the Lord had cast out before the children of Israel:3 this is R. Ishmael's view. R. Akiba said: This is unnecessary, the Writ saith, thou shalt not lie with mankind as with womankind: read, 'thou shalt not be lain with.'4 Whence do we learn a formal prohibition against bestiality? - Our Rabbis taught : [and if a man lie with a beast, he shall surely be put to death: and ye shall slay the beast].5 A man excludes a minor; [that] lieth with a beast - whether it be young or old; he shall surely be put to death - by stoning. You, by stoning; but perhaps one of the other deaths decreed in the Torah is meant? - It is here said, [and] ye shall kill [the beast]; and it is stated elsewhere, But thou shalt surely kill him. [. . . And thou shalt stone in him with stones]:6 just as there, stoning is meant, so here too.
We have learnt from this the punishment for him who commits bestiality; whence do we derive punishment for him who allows himself to be thus abused? - The Writ saith: Whosoever lieth with a beast shall surely be put to death.7 Since this is redundant in respect of the person committing bestiality,8 you must regard it as applying to the person permitting himself to be thus abused.9 From the Writ we know that there is punishment both for him who commits bestiality and for him who permits himself to be thus abused; whence do we know the formal prohibition? - Scripture saith, neither shalt thou lie with any beast to defile thyself therewith.10 From this verse we learn the formal prohibition for him who commits bestiality, whence do we derive the formal prohibition for him who allows himself to be thus abused? Scripture saith: There shall be no Sodomite of the sons of Israel; and it is elsewhere said, And there were also sodomites in the land, etc.11 R. Akiba said: This is unnecessary. The Writ saith, Thou shalt not lie [with any beast], which means, thou shalt not permit thy lying [with any beast, whether actively or passively].
Now, he who [actively] commits pederasty, and also [passively] permits himself to be thus abused - R. Abbahu said: On R. Ishmael's view, he is liable to two penalties, one [for the injunction] derived from thou shalt not lie with mankind, and the other for [violating the prohibition,] There shall not be a Sodomite of the sons of Israel. But on R. Akiba's view, he incurs only one penalty, since thou shalt not lie and thou shalt not be lain with is but one statement.12
He who commits bestiality, and also causes himself to be thus abused - R. Abbahu said: On R. Ishmael's view, he incurs two penalties, one for the injunction, thou shalt not lie with any beast, and one for the prohibition, there shall be no sodomite of the sons of Israel. But on R. Akiba's view, he incurs but one penalty, since thy lying [actively] and thy lying [passively] is but one injunction. Abaye said: Even on R. Ishmael's view he incurs one penalty only, for there shall be no Sodomite applies to sodomy with mankind.13 If so, whence does R. Ishmael derive a formal prohibition against permitting oneself to be bestially abused? - From the verse, Whosoever lieth with a beast shall surely be put to death.14 Now, this being redundant in respect of him who [actively] lies with a beast,15 apply it to him who [passively] permits himself to be abused this; and the Divine Law designates the passive offender as the active offender:16 this teaches that the punishment for, and the formal prohibition against, active bestiality17 apply to passive submission too.18
He who submits both to pederasty and to bestiality - R. Abbahu said: On R. Akiba's view, he incurs two penalties; one for thou shalt not lie [with mankind], and the other for thou shalt not lie [with any beast]. But on R. Ishmael's view, he incurs only one punishment, both offences being derived from the single verse, There shall be no Sodomite.19 Abaye said: Even on R. Ishmael's view, he incurs two penalties, because it is written, Whosoever lieth with a beast shall surely be put to death.20 This being redundant in respect of active bestiality, it must be applied to passive submission, and the Divine Law thus designated passive submission as an active offence: just as for the active offence there is punishment and prohibitions so for the passive offence too.21 But he who commits pederasty and causes himself to be abused thus; and also commits bestiality and causes himself to be abused too - both R. Abbahu and Abaye maintain that on R. Ishmael's view he is trebly guilty, and on R. Akiba's view he is doubly guilty.22
Our Rabbis taught: In the case of a male child, a young one is not regarded as on a par with an old one; but a young beast is treated as an old one.23 What is meant by this? - Rab said: Pederasty with a child below nine years of age is not deemed as pederasty with a child above that. Samuel said: Pederasty with a child below three years is not treated as with a child above that.24 What is the basis of their dispute? - Rab maintains that only he who is able to engage in sexual intercourse, may, as the passive subject of pederasty throw guilt [upon the active offender]; whilst he who is unable to engage in sexual intercourse cannot be a passive subject of pederasty [in that respect].25 But Samuel maintains: Scripture writes, [And thou shalt not lie with mankind] as with the lyings of a woman.26
It has been taught in accordance with Rab: Pederasty at the age of nine years and a day;
(1) Ibid. XVIII, 22.
(2) Deut. XXIII, 18.
(3) I Kings XIV, 24. Just as abomination applies to sodomy in the latter verse, so it applies to it in the former too: thus it is as though the former verse read, There shall be no Sodomite of the sons of Israel: it is an abomination. And just as the abomination implicit here applies to both parties, so the abomination explicitly stated in Lev. XIII, 22 refers to both.
(4) I. e., the niph'al, the letters being the same, תשכב and תשכב.
(5) Ibid. XX, 15.
(6) Deut. XIII, 10, referring to a mesith, one who incites to idolatry.
(7) Ex. XXII, 18.
(8) As it is taught elsewhere, viz., in Lev. XX, 15.
(9) One of the methods of Talmudic hermenueutics is to apply a Biblical statement, superfluous in respect of its own law, to some other subject.
(10) Lev. XVIII, 23.
(11) Ibid. v. p. 368. n. 1: the same reasoning applying to bestiality as to pederasty.
(12) I.e., though differently vocalized in order to deduce two injunctions, it is nevertheless one statement only, so that a person transgressing these two injunctions violates one Biblical prohibition only.
(13) Not to bestiality at all, in spite of the fact that this was cited above in this connection.
(14) Ex. XXII, 18.
(15) Since it is stated in Lev. XVIII.
(16) I.e., though as shewn, this verse applies to a passive offender, yet its grammatical construction speaks of active bestiality.
(17) The reference having been given above.
(18) So that all is deduced from one verse, involving only one penalty.
(19) Since R. Akiba maintains that the prohibition of passive sodomy is included in active sodomy, it follows that passive pederasty and bestiality are two distinct offences, for there are two distinct injunctions. But as R. Ishmael maintains that the injunction against active sodomy does not include passive submission, and that the latter, whether in pederasty or bestiality, is derived from the single injunction, There shall be no sodomite, the double offence incurs one penalty only.
(20) Ex. XXII, 18.
(21) Thus, this applies to passive bestiality, whilst there shall be no sodomite applies to passive pederasty. Hence, there being two separate injunctions for the two offences, a double punishment is incurred.
(22) Thus: R. Abbahu maintains that on R. Ishmael's view: (i) active pederasty is forbidden by Thou shalt not lie with mankind; (ii) active bestiality by Thou shalt not lie with any beast; (iii) passive pederasty and bestiality by There shall be no sodomite. Whilst Abaye maintains that on R. Ishmael's view, (i) active pederasty is derived from Thou shalt not lie with mankind; (ii) submission thereto from There shall be no sodomite; and (iii) active and passive bestiality from Neither shalt thou lie with any beast to defile thyself therewith. (Lev. XVIII, 23) Hence, according to R. Abbabu and Abaye there are three injunctions for the four offences. Further, R. Abbahu and Abaye both teach R. Akiba's view to be that (i) active and passive bestiality are derived from Thou shalt not lie with mankind as with womankind; and (ii) active and passive bestiality from Neither shalt thou lie with any beast. Hence there are two injunctions for the four offences.
(23) The reference is to the passive subject of sodomy. As stated supra 54a, guilt is incurred by the active participant even if the former be a minor, i.e., less than thirteen years old. Now, however, it is stated that within this age a distinction is drawn.
(24) I.e., Rab makes nine years the minimum; but if one committed sodomy with a child of lesser age, no guilt is incurred. Samuel makes three the minimum.
(25) At nine years a male attains sexual matureness.
(26) Lev. XVIII, 22. Thus the point of comparison is the sexual matureness of woman, which is reached at the age of three.
Talmud - Mas. Sanhedrin 55a
[he] who commits bestiality, whether naturally or unnaturally; or a woman who causes herself to be bestially abused, whether naturally or unnaturally, is liable to punishment .1
R. Nahman, son of R. Hisda stated in an exposition: In the case of a woman, there are two modes of intimacy, but in the case of a beast, only one.2 R. Papa objected: On the contrary, since sexual intercourse with a woman is a natural thing, guilt should be incurred only for a natural connection, but for nothing else, whilst, since a connection with a beast is an unnatural thing, one should be punished for every such act, however it be done.3
It has been taught: Pederasty at the age of nine years and a day; she who commits bestiality, whether naturally or unnaturally, and a woman who causes herself to be bestially abused, whether naturally or unnaturally, are liable to punishment.4
Rabina asked Raba: What if one commits the first stage of pederasty? [He replied: Dost thou ask] what if one commits the first stage of pederasty! Is it not written, Thou shalt not lie with mankind as with womankind?5 But [the question to be asked is] what if one commits the first stage of bestiality? - He replied: Since the culpability of the first stage of incest, which is explicitly stated with reference to one's paternal or maternal aunt, is redundant there, for it is likened to the first stage of intercourse with a niddah,6 apply its teaching to the first stage of bestiality [as being punishable].7 Now consider: bestiality is a capital offence, punishable by Beth din. Why then does the Scripture teach the capability of its first stage in a law relating to a sin punishable by extinction:8 should it not rather have been indicated in a verse dealing with sexual intercourse as a capital offence too;9 so that one capital offence might be deduced from another? Since this entire verse10 is written for the sake of new interpretations [whereby additional laws are deduced] - another statement for the same purpose is inserted.11
R. Ahdaboi b. Ammi propounded a problem to R. Shesheth: What if one excited himself to the first stage [of masturbation]? - He replied: You annoy us!12 R. Ashi said: What is your problem? This is impossible in self-stimulation; but it is possible in the case of coition with a membrum mortuum. On the view that such, in incest, is not punishable, in masturbation too it is not punishable. But on the view that it is punishable, a twofold penalty is incurred here, since he is simultaneously the active and passive partner of the deed.
It was asked of R. Shesheth: What if a heathen committed bestiality [is the animal killed or not]? Must it have been both a stumbling block and a cause of degradation [in order for it to be stoned], but here it was only a stumbling block, but not a cause of degradation;13 or perhaps, even if it was only a stumbling block, without having led to degradation, [it is still stoned]?14 - R. Shesheth replied, We have learnt it: If in the case of trees, which neither eat nor drink nor smell, the Torah decreed that they should be burnt and destroyed,15 because they had proved a stumbling block: how much more so [must thou destroy him] who seduces his neighbour from the path of life to that of death.16 If so, where a heathen worships his cow, should it not be forbidden and killed?17 - Is there anything which is not forbidden to an Israelite, yet forbidden to a heathen?18 But why should it not be forbidden if an Israelite worshipped it: is it not analogous to bestiality? - Abaye answered: In the latter case [bestiality] the degradation is great; whilst in the former [animal worship] the disgrace is little.19 But in the case of trees, the degradation is not great, yet did not the Torah order them to be burnt, destroyed, and annihilated? - We are speaking of living creatures, for which the All-Merciful One shewed pity.20 Raba said: The Torah ordered that the animal should be destroyed, because it too derived pleasure from sin.21 But trees derive no pleasure, yet the Torah commanded that they should be destroyed, burnt, and annihilated! We are speaking of living creatures, for which the All-Merciful One shewed pity. Come and hear!22 ANOTHER REASON IS, THAT THE ANIMAL SHOULD NOT PASS THROUGH THE STREETS, WHILST PEOPLE SAY, THIS IS THE ANIMAL ON ACCOUNT OF WHICH SO AND SO WAS STONED.Now surely,
(1) (Rashi reads זכור instead of the זכר in our printed texts. A male, aged nine years and a day who commits etc.] There are thus three distinct clauses in this Baraitha. The first - a male aged nine years and a day-refers to the passive subject of pederasty, the punishment being incurred by the adult offender. This must be its meaning - because firstly, the active offender is never explicitly designated as a male, it being understood, just as the Bible states, Thou shalt not lie with mankind, where only the sex of the passive participant is mentioned; and secondly, if the age reference is to the active party, the guilt being incurred by the passive adult party, why single out pederasty: in all crimes of incest, the passive adult does not incur guilt unless the other party is at least nine years and a day? Hence the Baraitha supports Rab's contention that nine years (and a day) is the minimum age of the passive partner for the adult to be liable.
(2) The reference is to bestiality. If a woman allows herself to be made the subject thereof, whether naturally or not, she is guilty. But if a man commits bestiality, he is liable only for a connection in a natural manner, but not otherwise.Thus Rashi. Tosaf., more plausibly, explains it thus: If one commits incest or adultery with a woman, whether naturally or not, guilt is incurred; but bestiality is punishable only for a connection in a natural manner, but not otherwise.
(3) The meaning according to the interpretation of Tosafoth is clear. Yet R. Papa's objection is not made in order to prove that unnatural incest is not liable (which, in fact, it is), but that if a distinction is to be drawn, unnatural bestiality is far more likely to be liable than unnatural incest. On Rashi's interpretation, R. Papa's objection is explained thus: Since a woman is naturally the passive object of sexual intercourse, it follows that she should be punished for bestiality only when the connection is carried out in a natural way. But as man is the active offender in an unnatural crime he should be punished even for unnatural connection. It must be confessed that this is not without difficulty, and hence Tosaf. rejects Rashi's explanation, which is based on a slightly different reading.
(4) V. supra p. 371. n. 5. This refutes the former view; and the latter too, on Rashi's interpretation.
(5) Ibid. XVIII, 20. Hence, why ask? Obviously, just as the first stage of incest or adultery is punishable, so also the first stage of pederasty.
(6) Niddah, a woman during her menstruation.
(7) In respect of one's paternal or maternal aunt, Scripture states: And thou shalt not uncover the nakedness of thy mother's sister, nor of thy father's sister: for he uncovereth his near kin. (Lev. XX, 19). The word for 'he uncovereth' (Heb. he'erah הערה) is understood as meaning the first stage of sexual intercourse, and this verse teaches that this is a culpable offence. But this teaching is superfluous, for in the preceding verse the same is taught of a niddah, which serves as a model for all forbidden human sexual intercourse. Hence the teaching, being redundant here, is applied to the first stage of bestiality. V. p. 368, n. 7.
(8) Incest with a paternal or a maternal aunt is so punishable.
(9) E. g., incest with one's mother, father's wife, or daughter-in-law is punished by stoning; v. supra 53a.
(10) Lev. XX, 19, referring to incest with a paternal or material aunt.
(11) In Yeb. 54b it is shewn that the whole verse is superfluous, its provisions being stated in Lev. XVIII, 12f. Hence it is written in XX, 19 in order that additional laws might be deduced.
(12) By a reprehensible sophistry, the thing being an impossibility. Other translations: 'You disgust us; insolent man that you are!'
(13) Because bestiality was not unusual among the heathens, therefore he would not feel himself disgraced. This Talmudic judgment on heathen morals may appear very harsh and prejudiced, yet it is not a malicious slander. In the Gilgamesh epic Ebani, the primitive man, lives a wild life with the animals and satisfies his lust with them. Bestiality seems to have been prevalent among the Greeks and Romans of a later period, as is proved by an extremely unsavoury adventure described in the Metamorphoses of Apuleius. Cf. 'A. Z. 22a, which forbids the stabling of cows with heathens, for fear of bestiality. (Hast. Dict. s.v. Bestiality.)
(14) The point of the problem is this: The Mishnah states two reasons for the stoning of the animal. The first, that it had been a stumbling block; the second, that it was a constant reminder that someone had been executed through it, i.e., that man had degraded himself thereby. Hence the question whether both are necessary before the animal must be stoned, or only one.
(15) Deut. XII, 3: And ye shall burn their groves with fire.
(16) I.e., to idolatry. That proves that that which caused sin, even without degradation, (the worship of trees by heathens not being accounted a disgrace to them) must be destroyed.
(17) Since a heathen is liable to death for animal worship, though it is not accounted a disgrace to him.
(18) Surely not. If a Jew worships his cow, it is not forbidden to benefit therefrom (Tem. 29a). Hence we cannot impose a prohibition if a heathen worships it. This is a general principle in the Talmud. It is very instructive as showing quite clearly the temper in which the Rabbis regarded the idea of election of Israel. So far from conferring special privileged dispensations, it could be taken as axiomatic that nothing permitted to the Jew was forbidden to the heathen. Cf. Joseph, M., Judaism as Creed and Life, pp. 153-4. 'In styling ourselves God's people we do not claim to possess any worldly advantage, or even any special share of the Divine love ... The pledge of God's affection for his people lies in his gift to them of a special opportunity of service, with its additional joys but also with its additional obligations. Nay, by taking upon himself the Yoke of the Law, Israel has been self-doomed to a life of trial.'
(19) Thus Tosaf. and R. Han. and one interpretation of Rashi. Another explanation by Rashi (adopted by Jast., s. v. קלון) is: In this case (of a Jew being the criminal) his disgrace is great, but in the latter (that of a Gentile) his disgrace is little. The first explanation seems to be more suited to the context.
(20) Hence, only where there is much degradation, as in bestiality, is the animal destroyed; but trees are destroyed even when the disgrace is not great.
(21) This is another point of difference between bestiality and animal worship. In the former, the animal too derives pleasure, but not in the latter.
(22) In answer to the problem, R. Shesheth's proof not being considered conclusive.
Talmud - Mas. Sanhedrin 55b
Talmud - Mas. Sanhedrin 56a
THE WHOLE DAY [OF THE TRIAL] THE WITNESSES ARE EXAMINED BY MEANS OF A SUBSTITUTE FOR THE DIVINE NAME, THUS, 'MAY JOSE SMITE JOSE.'1 WHEN THE TRIAL WAS FINISHED, THE ACCUSED WAS NOT EXECUTED ON THIS EVIDENCE, BUT ALL PERSONS WERE REMOVED [FROM COURT], AND THE CHIEF WITNESS WAS TOLD, 'STATE LITERALLY WHAT YOU HEARD. THEREUPON HE DID SO, [USING THE DIVINE NAME]. THE JUDGES THEN AROSE AND RENT THEIR GARMENTS, WHICH RENT WAS NOT TO BE RESEWN. THE SECOND WITNESS STATED; I TOO HAVE HEARD THUS' [BUT NOT UTTERING THE DIVINE NAME], AND THE THIRD SAYS: 'I TOO HEARD THUS'.
GEMARA. It has been taught: [The blasphemer is not punished] unless he 'blesses' the Name, by the Name2 . Whence do we know this? - Samuel said: The Writ sayeth, And he that blasphemeth [nokeb] the name of the Lord . . . when he blasphemeth the name of the Lord, shall be put to death.3 How do you know that the word nokeb4 [used in the Hebrew] means a 'blessing'? - From the verse, How shall I curse [Ekkob]5 whom God hath not cursed;6 whilst the formal prohibition is contained in the verse, thou shalt not revile God.7 But perhaps it means 'to pierce,'8 as it is written, [So Jehoiada the priest took a chest,] and bored [wa-yikkob]9 a hole in the lid of it,10 the formal injunction against this being the verses, Ye shall destroy the names of them [idols] out of that place. Ye shall not do so unto the Lord your God?11 - The Name must be 'blessed' by the Name, which is absent here. But perhaps the text refers to the putting of two slips of parchment, each bearing the Divine Name, together, and piercing them both? - In that case one Name is pierced after the other.12 But perhaps it prohibits the engraving of the Divine Name on the Point of a knife and piercing therewith [the Divine Name written on a slip of parchment]? - In that case, the point of the knife pierces, not the Divine Name. But perhaps it refers to the pronunciation of the ineffable Name, as it is written, And Moses and Aaron took these men which are expressed [nikkebu]13 by their names;14 the formal prohibition being contained in the verse, Thou shalt fear the Lord thy God?15 - Firstly, the Name must be 'blessed' by the Name, which is absent here; and secondly, it is a prohibition in the form of a positive command, which is not deemed to be a prohibition at all.16 An alternative answer is this: The Writ saith, [And the Israelitish woman's son] blasphemed wa-yikkob17 [and cursed],18 proving that blasphemy [nokeb] denotes cursing. But perhaps it teaches that both offences must be perpetrated?19 You cannot think so, because it is written, Bring forth him that hath cursed,20 and not 'him that hath blasphemed and cursed', proving that one offence only is alluded to.
Our Rabbis taught: [Any man that curseth his God, shall bear his sin.21 It would have been sufficient to say], 'A man, etc:' What is taught by the expression any man?22 The inclusion of heathens, to whom blasphemy is prohibited just as to Israelites, and they are executed by decapitation; for every death penalty decreed for the sons of Noah is only by decapitation.23
Now, is [the prohibition of blasphemy to heathens] deduced from this verse? But it is deduced from another, viz., The Lord, referring to the 'blessing' of the Divine Name.24 - R. Isaac the smith25 replied; This phrase ['any man'] is necessary only as teaching the inclusion of substitutes of God's name26 , and the Baraitha is taught in accordance with R. Meir's views For it has been taught: Any man that curseth his God shall bear his sin.27 Why is this written? Has it not already been stated, And he that blasphemeth the name of the Lord, he shall surely be put to death?28 Because it is stated, And he that blasphemeth the name of the Lord shall surely be put to death, I might think that death is meted out only when the ineffable Name is employed. Whence do I know that all substitutes [of the ineffable Name] are included [in this law]? From the verse, Any man that curseth his God-shewing culpability for any manner of blasphemy [even without uttering the Name, since the Name is not mentioned in this sentence]: this is the view of R. Meir. But the Sages maintain: [Blasphemy] with use of the ineffable Name, is punishable by death: with the employment of substitutes, it is the object of an injunction. [but not punishable by death].
This view [of R. Isaac the smith] conflicts with that of R. Miyasha; for R. Miyasha said: If a heathen [son of Noah] blasphemed, employing substitutes of the ineffable Name, he is in the opinion of the Sages punishable by death. Why so? - Because it is written, as well the stranger, as he that is born in the land [when he blasphemeth the name of the Lord, shall be put to death].29 This teaches that only the stranger [i.e.. a proselyte], and the native [i.e., a natural born Israelite] must utter the ineffable Name; but the heathen is punishable even for a substitute only. But how does R. Meir interpret the verse, 'as well the stranger, as he that is born in the land'? - It teaches that the stranger and citizen are stoned, but a heathen is decapitated. For I would think, since they are included [in the prohibition], they are included [in the manner of execution too]: hence we are taught otherwise. Now how does R. Isaac the smith interpret the verse, 'as well the stranger, as he that is born in the land', on the view of the Rabbis?30 - It teaches that only a stranger and a native must revile the Name by the Name, but for a heathen this is unnecessary. Why does the Torah state any man?31 - The Torah employed normal human speech.32
Our Rabbis taught: seven precepts were the sons of Noah commanded: social laws;33 to refrain from blasphemy, idolatry; adultery; bloodshed; robbery; and eating flesh cut from a living animal.34
(1) The witnesses, in giving testimony, do not state that they heard the accused say, 'May He slay himself', uttering the actual divine name, but use the word 'Jose' as a substitute for the divine name. 'Jose' is chosen as a substitute, because it contains four letters, like the actual Tetragrammaton, which must have been used by the blasphemer for him to be punished. Moreover, the numerical value of 'Jose' is the same as of Elohim (81). According to Levy, s.v. כינוי, the first Jose יוסי stands for Jesus (**, son), and the second is an abbreviation of יוסף, Joseph, the Father, by which, however, God was to be understood. The witnesses were accordingly asked whether the accused in his blasphemy had set Jesus above God. (R. Joshua b. Karha, the author of this saying, lived at a time when Judeo-Christians ascribed more power to Jesus than to God.)
(2) As in the Mishnah, 'Jose strike Jose'. 'Bless' is here a euphemism for curse, and is so in the whole of the ensuing discussion.
(3) Lev. XXIV, 16. The repetition shows that the Divine Name must be cursed by the Divine Name.
(6) Num. XXIII, 8.
(7) Ex. XXII, 27.
(8) I.e., it is a capital offence to pierce the Divine Name, written on a slip of parchment, and thus destroy it.
(10) II Kings XII, 10.
(11) Deut. XII, 3f. The interpretation is based on the juxtaposition of the two verses; v. Mak. 22a.
(12) The knife passes successively from one slip to the other, but one Name does not pierce the other.
(14) Num. 1, 17.
(15) Deut. VI, 13, which is interpreted as a prohibition against the unnecessary utterance of His Name.
(16) The statement, Thou shalt fear the Lord thy God, though implying abstention from something, is nevertheless given as a positive command, but punishment is imposed for the violation only of a direct negative precept.
(18) Lev. XXIV, 11.
(19) I.e., only he who both blasphemes, that is, utters the ineffable Name, and curses it, is executed.
(20) Ibid. XXIV, 14.
(21) Ibid. XXIV, 15.
(22) Lit., 'A man, a man', heb.ish ish, איש איש
(23) The only place where death is explicitly decreed for non-Israelites is in Gen. IX, 6: Whoso sheddeth man's blood, by man shall his blood be shed. It is a general law, applicable to all, having been given in the pre-Abrahamic era; his blood shall be shed must refer to the sword, the only death whereby blood is shed.
(24) V. infra 56b. And the Lord God commanded the man, saying, of every tree of the garden, thou mayest freely eat. Gen. II, 16. Every word or phrase in this verse is separately interpreted, the Lord teaching the prohibition of blasphemy to a Noachide.
(25) In the Talmudic period the Rabbi was an honorary official; consequently, he had to have a private occupation e.g., R. Joshua, who came into conflict with R. Gamaliel, was a blacksmith, (Ber. 28a.) others translate, charcoal-burner.
(26) I.e., even if only a substitute was employed in blasphemy, the death penalty is incurred.
(27) Lev. XXIV, 15
(28) Ibid. 16.
(30) That a heathen too must use the ineffable Name for incurring punishment.
(31) This is a difficulty For R. Isaac and R. Miyasha, as they explain the opinions of the Sages. They both maintain that the culpability of a heathen is deduced from And the Lord (God commanded etc.) When employing substitutes, his culpability, in the view of R. Miyasha is deduced from as well the stranger etc.; Whilst R. Isaac denies that it is punishable at all. Hence the difficulty, why the repetition ish ish, a man, a man?
(32) I.e., no particular significance attaches to the repetition, it being the usual idiom.
(33) I.e., to establish courts of justice, or, perhaps, to observe social justice (Nahmanides on Gen. XXXIV, 13): Hast. Dict. (s.v. Noachian precepts) translates 'obedience to authority'.
(34) These commandments may be regarded as the foundations of all human and moral progress. Judaism has both a national and a universal outlook in life. In the former sense it is particularistic, setting up a people distinct and separate from others by its peculiar religious law. But in the latter, it recognises that moral progress and its concomitant Divine love and approval are the privilege and obligation of all mankind. And hence the Talmud lays down the seven Noachian precepts, by the observance of which all mankind may attain spiritual perfection, and without which moral death must inevitably ensue. That perhaps is the idea underlying the assertion (passim) that a heathen is liable to death for the neglect of any of these. The last mentioned is particularly instructive as showing the great importance attached to the humane treatment of animals; so much so, that it is declared to be fundamental to human righteousness.
Talmud - Mas. Sanhedrin 56b
R. Hanania b. Gamaliel said: Also not to partake of the blood drawn from a living animal. R. Hidka added emasculation. R. Simeon added sorcery. R. Jose said: The heathens were prohibited everything that is mentioned in the section on sorcery. viz., There shall not be found among you any one, that maketh his son or daughter to pass through the fire, or that useth divination, or an observer of times, or an enchanter, or a witch, or a charmer, or a consulter with familiar spirits, or a wizard, or a necromancer. For all that do these things are an abomination unto the Lord: and because of these abominations the Lord thy God doth drive them [sc. the heathens in Canaan] out from before thee.1 Now, [the Almighty] does not punish without first prohibiting.2 R. Eleazar added the forbidden mixture [in plants and animals]: now, they are permitted to wear garments of mixed fabrics [of wool and linen] and sow diverse seeds together; they are forbidden only to hybridize heterogeneous animals and graft trees of different kinds.
Whence do we know this? - R. Johanan answered: The Writ saith: And the Lord God commanded the man saying, of every tree of the garden thou mayest freely eat.3 And [He] commanded, refers to [the observance of] social laws, and thus it is written, For I know him, that he will command his children and his household after him, and they shall keep the way of the Lord, to do justice and judgment.4 The Lord-is [a prohibition against] blasphemy, and thus it is written, and he that blasphemeth the name of the Lord, he shall surely be put to death.5 God-is [an injunction against] idolatry, and thus it is written, Thou shalt have no other gods before Me.6 The man-refers to bloodshed [murder], and thus it is written, Whoso sheddeth man's blood, by man shall his blood be shed.7 Saying-refers to adultery, and thus it is written, They say, If a man put away his wife, and she go from him, and became another man's.8 Of every tree of the garden-but not of robbery.9 Thou mayest freely eat-but not flesh cut from a living animal.10
When R. Isaac came,11 he taught a reversed interpretation. And He commanded-refers to idolatry; God [Heb. elohim] to social law. Now 'God' may rightly refer to social laws, as it is written, And the master of the house shall be brought unto elohim [i.e., the judges].12 But how can 'and He commanded' connote a prohibition of idolatry? - R. Hisda and R. Isaac b. Abdimi-one cited the verse, They have turned aside quickly out of the way which I commanded them: they have made them a molten calf, etc.13 And the other cited, Ephraim is oppressed and broken in judgment, because he willingly walked after the commandment.14 Wherein do they differ? - In respect of a heathen who made an idol but did not worship it: On the view [that the prohibition of idolatry is derived from] they have made them a molten calf, guilt is incurred as soon as the idol is made [even before it is worshipped]; but according to the opinion that it is from, because he willingly walked after the commandment, there is no liability until the heathen actually follows and worships it. Raba objected: Does any scholar maintain that a heathen is liable to punishment for making an idol even if he did not worship it? Surely it has been taught: With respect to idolatry, such acts for which a Jewish Court decrees sentence of death [on Jewish delinquents] are forbidden to the heathen; but those for which a Jewish Court inflicts no capital penalty on Jewish delinquents are not forbidden to him.15 Now what does this exclude? Presumably the case of a heathen who made an idol without worshipping it?16 R. Papa answered: No. It excludes the embracing and kissing of idols.17 Of which idols do you say this? Is it of those whose normal worship is in this manner; but in that case he is surely liable to death? - Hence it excludes the embracing and kissing of idols which are not usually worshipped thus.
'Social laws.' Were then the children of Noah bidden to observe these? Surely it has been taught: The Israelites were given ten precepts at Marah, seven of which had already been accepted by the children of Noah, to which were added at Marah social laws ,the Sabbath, and honouring one's parents; 'Social laws,' for it is written, There [sc. at Marah] he made for them a statute and an ordinance;18 'the Sabbath and honouring one's parents'. for it is written, As the Lord thy God commanded thee!19 - R. Nahman replied in the name of Rabbah b. Abbuha: The addition at Marah was only in respect of an assembly, witnesses, and formal admonition.20 If so, why say 'to which were added social laws'?21 - But Raba replied thus: The addition was only in respect of the laws of fines.22 But even so, should it not have been said, 'additions were made in the social laws'? - But R. Aha b. Jacob answered thus: The Baraitha informs us that they were commanded to set up law courts in every district and town. But were not the sons of Noah likewise commanded to do this? Surely it has been taught: Just as the Israelites were ordered to set up law courts in every district and town, so were the sons of Noah likewise enjoined to set up law courts in every district and town! - But Raba answered thus: The author of this Baraitha [which states that social laws were added at Marah] is a Tanna of the School of Manasseh, who omitted social laws and blasphemy23 [from the list of Noachian precepts] and substituted emasculation and the forbidden mixture [in plants, ploughing. etc.].23 For a Tanna of the School of Manasseh taught: The sons of Noah were given seven precepts. viz., [prohibition of] idolatry, adultery, murder, robbery, flesh cut from a living animal, emasculation and forbidden mixtures. R. Judah said: Adam was prohibited idolatry only, for it is written, And the Lord God commanded Adam.24 R. Judah b. Bathyra maintained: He was forbidden blasphemy too. Some add social laws. With whom does the following statement of Rab Judah in the name of Rab agree: viz., [God said to Adam,] I am God, do not curse Me; l am God, do not exchange Me for another; I am God, let My fear be upon you?25 - This agrees with the last mentioned [who adds social laws to the list].
Now, what is the standpoint of the Tanna of the School of Manasseh? If he interprets the verse, And the Lord God commanded etc. [as interpreted above], he should include these two [social laws and blasphemy] also, and if he does not, whence does he derive the prohibition of the rest? - In truth, he does not accept the interpretation of the verse, 'And the Lord God commanded etc., but maintains that each of these [which he includes] is separately stated: Idolatry and adultery.
(1) Deut. XVIII, 10ff.
(2) Therefore, since it is stated that they are being expelled as a punishment for these sins, they must first have been warned (i.e., prohibited) against them.
(3) Gen. II, 16.
(4) Gen. XVIII, 19. Thus 'command' relates to justice and judgment.
(5) Lev. XXIV, 16-'The Lord' being used in connection with blasphemy.
(6) Ex. XX, 3.
(7) Gen. IX, 6.
(8) Jer. III, 1. Thus 'saying' is used in connection with adultery.
(9) Since it was necessary to authorize Adam to eat of the trees of the garden, it follows that without such authorisation-i.e., when something belongs to another-it is forbidden.
(10) By interpreting thus: Thou mayest eat that which is now ready for eating, but not whilst the animal is alive. It is perhaps remarkable that a verse, the literal meaning of which is obviously permission to enjoy, should be interpreted as a series of prohibitions. Yet it is quite in keeping with the character of the Talmud: freedom to enjoy must be limited by moral and social considerations, and indeed only attains its highest value when so limited. Cf. Ab. VI, 2: No man is free but he who labours in the Torah.
(11) V. p. 361, n. 5.
(12) Ex. XXII, 7. The root idea of 'elohim' is power, majesty.
(13) Ex. XXXII, 8.
(14) Hos. V, 11, referring to idolatry; thus in both cases 'command' is used in connection with idolatry.
(15) V. Mishnah 60b.
(16) For which a Jew is not punished by death.
(17) Teaching that these are not punishable.
(18) Ex. XV, 25. Ordinance (Heb. mishpat) refers to social law.
(19) Deut. V, 16. This occurs in the fifth commandment of the second Decalogue. Similar words are used in the fourth commandment: therefore the Lord thy God commanded thee to keep the sabbath day. In both cases then there is a reference to some previous event, shewn by the use of the past tense: commanded thee. Now the second Decalogue, though spoken by Moses towards the end of his life in the plains of Moab many years after the first at Sinai, was nevertheless a repetition thereof. Therefore this reference back must have been made in the first promulgation also, and can only relate to Marah, where, as stated above, 'he made for them a statute and an ordinance', i.e., gave certain laws to the the Israelites.
(20) I.e., that Justice should be meted out by an 'assembly'. viz., a Sanhedrin; that an accusation was to be attested by at least two witnesses, and that a formal warning or admonition was to be given to the accused before he committed his offence, as otherwise he was not liable to the prescribed penalty. But the sons of Noah, though bidden to observe civil laws, were not bound by these regulations.
(21) Since the addition was only in the method of procedure, but not in actual content.
(22) E.g., Deut. XXII, 19, 29, where a slanderer of a woman's honour is ordered to pay 100 silver shekels to her father, and a seducer of a virgin 50 silver shekels. These payments are not regarded as equitable indemnifications against loss sustained, but as fines for reprehensible acts. These laws were wanting in the civil code of the sons of Noah, and only these commands added at Marah.
(23) The text employs abbreviations for these commands.
(24) Which means that He commanded him to remember His Godhead, and not to reject it for a different deity.
(25) 'Let my fear be upon you' is an exhortation to dispense justice uprightly, without fear of man.
Talmud - Mas. Sanhedrin 57a
for it is written, The earth also was corrupt before God;1 and a Tanna of the School of R. Ishmael taught: Wherever corruption is mentioned, it must refer to immorality and idolatry.2 'Immorality.' as it is written, for all flesh had corrupted his way upon the earth.3 'Idolatry,' for it is written, Lest ye corrupt yourselves and make you a graven image, etc.4 And the other teacher [who deduces this from the verse, and the Lord God commanded etc.]?5 He maintains that this verse [sc. the earth also etc.] merely describes their way of living.6 'Bloodshed', as it is written, Whoso sheddeth man's blood, etc.7 And the other?8 - This verse [he will maintain] merely teaches the manner of execution.9 Robbery, for it is written, As the wild herbs have I given you all things;10 upon which R. Levi commented: as the wild herbs, but not as the cultivated herbs.11 And the other?12 - He will hold that this verse is written to permit animal flesh,13 [but not to prohibit robbery]. Flesh cut from the living animal, as it is written, But flesh with the life thereof, which is the blood thereof, shall ye not eat.14 And the other?15 - He may hold that this verse teaches that flesh cut from live reptiles is permitted.16 Emasculation, for it is written, Bring forth abundantly in the earth, and multiply therein.17 And the other?18 - He may regard this merely as a blessing.19 Forbidden mixture, as it is said, Of fowls after their kind.20 And the other?21 - He will maintain that this was merely for the sake of mating.22
R. Joseph said, The scholars23 stated: A heathen is executed for the violation of three precepts- Mnemonic G Sh R-24 viz., adultery, bloodshed, and blasphemy. R. Shesheth objected: Now bloodshed is rightly included, since it is written, Whoso sheddeth the blood of man, by man shall his blood be shed;25 but whence do we know the others? If they are derived from bloodshed,26 the other four should also be included; whilst if their inclusion is taught by the extending phrase any man,27 should not idolatry too be included?28 But R. Shesheth said thus: The scholars stated, A heathen is executed for the violation of four precepts [including idolatry]. But is a heathen executed for idolatry? Surely it has been taught: With respect to idolatry, such acts for which a Jewish court decrees sentence of death [on Jewish delinquents] are forbidden to the heathen. This implies that they are merely forbidden, but their violation is not punished by death! - R. Nahman b. Isaac answered: Their prohibition is their death sentence.29
R. Huna, Rab Judah, and all the disciples of Rab maintained: A heathen is executed for the violation of the seven Noachian laws; the Divine Law having revealed this of one [murder], it applies to all. Now is a heathen executed for robbery? Has it not been taught: 'With respect to robbery - if one stole or robbed30 or [seized] a beautiful woman,31 or [committed] similar offences,32 if [these were perpetrated] by one Cuthean33 against another, [the theft, etc.] must not be kept, and likewise [the theft] of an Israelite by a Cuthean, but that of a Cuthean by an Israelite may be retained'?34 But if robbery is a capital offence, should not the Tanna have taught: He incurs a penalty? - Because the second clause wishes to state, 'but that of a Cuthean by an Israelite may be retained,' therefore the former clause reads, '[theft of an Israelite by a Cuthean] must not be kept.'35 But where a penalty is incurred, it is explicitly stated, for the commencing clause teaches: 'For murder, whether of a Cuthean by a Cuthean, or of an Israelite by a Cuthean, punishment is incurred; but of a Cuthean by an Israelite, there is no death penalty'?36 - How else could that clause have been taught? Could he state, 'forbidden' . . . 'permitted'? Surely it has been taught; A Cuthean and a [Jewish] shepherd of small cattle [sheep, goats, etc.]37 need neither be rescued [from a pit] nor may they be thrown [therein]!38
'And similar acts.' To what can this apply in the case of robbery? - R. Aha b. Jacob answered: To a worker in a vineyard [who eats of the grapes]. When so? If his is the finishing work, it is permitted?39 If it is not the finishing work, is it not actual robbery?40 - But R. Papa said: This applies to [the theft of] an article worth less than a perutah.41 But if so, why say that such robbery of a Jew by a Cuthean must not be kept: does he not forgive him?42 - Though he later forgives him, he is grieved when it occurs [therefore it is prohibited] - But how can you say that such robbery by one Cuthean from another is but a 'similar act' [i.e., bordering on robbery]: since a Cuthean does not forgive,43 is it not actual theft? - But R. Aha, the son of R. Ika answered; It applies to the withholding of a labourer's wage.44 One Cuthean from another, or a Cuthean from an Israelite is forbidden, but an Israelite from a Cuthean is permitted.45 To what can 'a similar act' apply in the case of a beautiful woman? - When R. Dimi came,46 he said in the name of R. Eleazar in the name of R. Hanina: To a heathen who allotted a bondwoman to his slave [for concubinage] and then took her for himself, for this he is executed.47
'A similar act', however, is not taught with reference to murder.48 Abaye said: If it should be, however, that it is so taught, it would be in accordance with R. Jonathan b. Saul. For it has been taught; If one was pursuing his neighbour to slay him, and the latter could have saved himself by maiming a limb [of the pursuer, e.g., his foot], and did not thus save himself [but killed him instead],
(1) Gen. VI, II
(2) And once they were punished for these offences, they must first have been admonished against them.
(3) Ibid. 'Corrupted his way' connotes immorality; cf. the way of a man with a maid. Prov. XXX, 19.
(4) Deut. IV, 16.
(5) How does he utilize this latter verse?
(6) But is not intended to imply a prohibition.
(7) Gen. IX, 6.
(8) I.e., who deduces it from the verse, all the Lord commanded.
(9) I.e., by the sword, v. p. 380 n. 5; but the fact of execution is taught elsewhere.
(10) Ibid. 3.
(11) I.e., only as that which grows wild, without any owners; but not as that which is cultivated, hence owned by someone. This proves that robbery was forbidden them.
(12) V. n. 8.
(13) Which was prohibited to Adam, v. infra 59b.
(14) Ibid. 4. 'Flesh with the blood thereof' means flesh cut from the living animal.
(16) V. infra 59a, b.
(17) Ibid. This, of course, is a direct negation of emasculation.
(18) V. p. 386, n.8,
(19) But it is not intended to convey any prohibition.
(20) Ibid. VI, 20; hence different species are not to be crossed.
(21) V. p. 386, n.8.
(22) It being easier to mate with the same species than with another; but no prohibition is implied thereby.
(23) The term be Rab does not necessarily mean the school presided over by Rab, though it may have that meaning occasionally. In one sense, it connotes the school founded by him, but lasting many generations after his lifetime. In another, it denotes schools in general. In this very instance, the views attributed to be Rab conflict with the teaching of Rab, Rab Judah, and all his disciples (Weiss. Dor II, p. 206.)
(24) גש״ר: a mnemonic is given to facilitate the remembering of the subjects of a discussion. Here it stands for Gilluy 'Arayoth - adultery; Shefikuth damin - murder; and birkath ha-shem - blasphemy.
(25) Gen. IX, 6.
(26) That as bloodshed was forbidden on pain of death, so were the others too.
(27) Heb. איש איש ish ish. Lev. XXIV, 15: Any man (ish ish) that curseth his God shall bear his sin. Ibid. XVIII, 6: No man (ish ish) shall approach to any that is near of kin to him, to uncover their nakedness. In both cases one referring to blasphemy, and the other to incest, the repetition of ish extends the law to embrace heathens too.
(28) Lev. XX, 2: Whosoever he be (ish ish ) of the children of Israel, or of the strangers that sojourn in Israel, that giveth any of his seed to Moloch (i.e., engages in idol worship); he shall surely be put to death. The repetition then, here too, should extend the death penalty for idolatry to heathens.
(29) I.e., in speaking of heathens, when the Tanna teaches that they are forbidden to do something, he ipso facto teaches that it is punishable by death; for only in speaking of Jews is it necessary to distinguish between prohibition and punishment.
(30) Stole (ganab) refers to secret stealing, robbed (gazal), to stealing by open violence.
(31) In war, v. Deut. XXI, 10-14 - a species of robbery. [This is the only possible and correct rendering of the text, contra Goldschmidt. Cf. Tosef A.Z.]
(32) Acts which are not actual robbery, but partake of its nature.
(33) 'Cuthean' (Samaritan) was here substituted by the censor for the original goy (heathen).
(34) [I.e., though it is forbidden to rob the heathen (v. Yad, Genebah I, 2; VI, 8), the offence was non-actionable. For reason, v. B. K. (Sonc. ed.) note on Mishnah 37b.]
(35) But actually it is punishable too. [This is merely a survival of old Semitic tribal law that regarded theft and robbery as a crime against the state, and consequently punishable by death. V. Muller, D. H., Hammurabi, 88]
(36) Thus the Tanna does refer to punishment; since then he omits a reference to punishment in the clause under discussion, it shows that the heathen is not executed for robbery. In the whole of this discussion the punishment referred to is death.
(37) Both are regarded as robbers the latter because they permit their charges to graze in other people's fields.
(38) One need neither exert oneself to save them from death, nor may one encompass it. This, of course, is theoretical only, v. p. 388, n. 6. Not a few of these harsh utterances (where they do not reflect the old Semitic tribal law, v. p. 388. n. 7) were the natural result of Jewish persecution by the Romans, and must be understood in that light. In actual practice, these dicta were certainly never acted upon, and it is significant that a commission of Roman officers, after investigating Jewish law in its relation to Gentiles, took exception only to two laws, one relating to the damage done by a goring ox, and the other permitting a Jew the use of property stolen from a Gentile. R. Gamaliel repealed this latter law. (B.K. 38a: Sifre Deut. 344.) Hence, reverting to the discussion, the Tanna could not have stated that the murder of a Cuthean by a Jew is permissible, therefore he is forced to speak of punishment.
(39) E.g., the gathering in of the grapes. Deut. XXIII, 25 is interpreted by the Rabbis as referring to work in connection with the finishing touch given to the produce.
(40) Not merely bordering thereon.
(41) A small coin, one-eighth of the Roman as.
(42) One does not mind such a trifle, and readily forgives it.
(43) Even such a trifle, v. infra 59a.
(44) This only borders on a robbery, for actual robbery means depriving a person of what he already possesses
(45) I.e., non-actionable.
(46) R. Dimi was a Palestinian Amora of the fourth century, who travelled to and fro between, Babylon and Palestine, and was very zealous in transmitting the teachings of Palestine Scholars to his colleagues in Babylon (v. J. E. IV, 603; cf. p. 361, n. 5, supra.
(47) This, though not actual robbery, is similar to it.
(48) A deed is either actual murder or not. Even unwitting murder is murder, though the Almighty shewed mercy by sparing the murderer.
Talmud - Mas. Sanhedrin 57b
he is executed for his death.1
R. Jacob b. Aha found it written in the scholars'2 Book of Aggada:3 A heathen is executed on the ruling of one judge, on the testimony of one witness, without a formal warning, on the evidence of a man, but not of a woman, even if he [the witness] be a relation. On the authority of R. Ishmael it was said: [He is executed] even for the murder of an embryo. Whence do we know all this? - Rab Judah answered: The Bible saith, And surely your blood of your lives will I require;4 this shows that even one judge [may try a heathen].5 At the hand of every living thing will I require it: even without an admonition having been given;6 And at the hand of man: even on the testimony of one witness;7 at the hand of man:8 but not at the hand [i.e., on the testimony] of a woman; his brother: teaching that even a relation may testify. On the authority of R. Ishmael it was said: [He is executed] even for the murder of an embryo. What is R. Ishmael's reason? Because it is written, Whoso sheddeth the blood of man within [another] man, shall his blood be shed.9 What is a man within another man? - An embryo in his mother's womb.10 But the first Tanna [who excludes the murder of an embryo from capital punishment] is a Tanna of the school of Manasseh, who maintains that every death penalty decreed for the heathens is by strangulation. He connects the [second] 'man' with the latter half of the sentence, and interprets thus: Whoso sheddeth man's blood, within man [i.e., within him], shall his blood be shed. Now, how can man's blood be shed, and yet be retained within him? By strangulation.
R. Hamnuna objected: Now, is not a [heathen] woman commanded [to keep the social laws]? Surely it is written, For I know him, that he will command his sons and his household [which includes the womenfolk] after him, and they shall keep the way of the Lord to exercise charity,and judgment?11 - He raised the objection, and he answered it himself: he would command 'his sons' to exercise judgment; 'his daughters' to perform charity.
R. Awia the elder said to R. Papa: Let us say that a heathen woman who committed murder must not be executed, since it is written, at the hand of every man [who committed murder] etc. implying,12 'but not at the hand of woman'?- He replied: Thus did Rab Judah say: Whoso sheddeth man's blood implies whosoever it be [even a woman]. Let us say that a heathen woman who committed adultery is not executed, since it is written, therefore shall a man forsake [his father and mother, and cleave to his wife], implying12 that a man [must cleave], but not a woman? - He replied: Thus did Rab Judah say: The verse, And they shall be as one flesh, reassimilated them to each other [making the law of fidelity applicable to both].
Our Rabbis taught: [A man, a man shall not approach to any that is near of kin to him, to uncover their nakedness.13 It would have been sufficient to state,] A man shall not approach etc. What is taught by the repetition, A man, a man? - The extension of the law to heathens, that they too are forbidden incest [including adultery]. Now is this deduced from this verse; is it rather not deduced from a different text, viz., [And the lord God commanded...] saying, which refers to adultery?14 - The latter text refers to adultery with a woman of their own [i.e., with a heathen married woman]; the former to adultery with one of ours [i.e., a Jewish married woman], for the second clause teaches: If he committed incest with a Jewess, he is judged according to Jewish law. With regard to what is this?15 - R. Nahman said in the name of Rabbah b. Abbuha: With regard to an assembly, witnesses and formal admonition.16 Is a Jewess then of less account?17 But R. Johanan answered thus: It is with regard to a betrothed Jewish maiden,18 whose violation by heathen law is not a capital offence;19 hence they are judged by Jewish law.
But if their offence was against a fully married woman, are they judged according to their law? Surely it has been taught: 'If a heathen committed adultery with a [Jewish] betrothed maiden, he is stoned; with a fully married woman, he is strangled.' Now if we judged them according to the law pertaining to them, should he not be decapitated? - R. Nahman b. Isaac answered: By a 'married woman' this Baraitha means one whose huppah ceremony20 has been performed, but without the marriage being consummated. Since by their law her violation is not a capital offence, they are judged by ours. For R. Hanina taught: They recognise the inviolability of a woman whose union has been consummated, but not if she merely entered the huppah without the union having been consummated. It has been taught in agreement with R. Johanan: All prohibited [sexual] relationships for which a Jewish Beth din imposes capital punishment are forbidden to heathens, but those for which a Jewish Beth din does not impose death are permitted to heathens; this is R. Meir's view. But the Sages maintain: There are many relationships21 for which a Jewish Beth din does not impose death, which are nevertheless forbidden to a Gentile. If a heathen committed incest with a Jewess, he is judged according to Jewish law; if with a heathen woman, he is judged according to heathen law. The only difference that this makes is with respect to a betrothed maiden.22 But should not the Tanna include a woman whose huppah ceremony has been performed without the marriage being consummated? - The teacher of this Baraitha is the Tanna of the college of Manasseh, who maintains that every death penalty decreed for the heathens is by strangulation, and by both codes [Jewish and heathen] this last-mentioned offence is punished by strangulation.
Now, is R. Meir of the opinion that all relationships for which a Jewish Beth din imposes capital punishment are forbidden to heathens? Surely it has been taught: A proselyte,
(1) Yet this cannot be regarded as real murder, and hence may be called 'a similar act'. But the sages dispute this, and maintain that he is not executed at all.
(2) V. p. 387, n, 7. It may also mean the School of Rab (Bacher. Agad. Bab. Amor. p. 2).
(3) Aggadah (or Haggadah, from nagad, to declare), means the whole non-legal portion of Jewish learning. Here however, an actual law is cited from the Book of Aggadah. In the T. J. and Midrashim, many statements cited in the T. B. as being from the Book of Aggadah of the schools, are those cited under the name of Noachian precepts. Hence it is possible that the reference is to a collection of laws relating to Gentiles, and in order to distinguish it from specifically Jewish laws, it was called the Book of Aggadah (Weiss, Dor, III, p. 158).
(4) Gen. IX, 5.
(5) The interpretation is based on the use of the singular, 'I' will require.
(6) This is based on the extending word 'every'.
(7) This is based on the singular.
(8) Not the same phrase in Heb. as the preceding one.
(9) Lit. rendering of Gen. IX, 6.
(10) This law was directed against the Roman practice of prenatal murder. Weiss, Dor, II, 22.
(11) Ibid. XVIII, 19. Why then should a woman's testimony be inadmissible?
(12) According to Rab Judah's exegesis.
(13) Lit. rendering of Lev. XVIII, 6.
(14) V. p. 383.
(15) Since by the Noachian Law also he is liable to death.
(16) He must be tried by a full Sanhedrin; he cannot be convicted on the testimony of less than two witnesses, and he must have been formally admonished before committing the offence.
(17) I.e., is he dealt with more leniently because his offence was against a Jewess? For when his offence is against a heathen, these are unnecessary.
(18) V. p. 333, n. 3; p. 337, n. 5.
(19) As they do not regard her as married until the actual consumation of the nuptials.
(20) V. p. 333, n. 3.
(21) The Gaon of Wilna deletes 'many': Maimonides likewise does not include it in his text. Actually, the dispute of the Sages and R. Meir is only in reference to a half sister by one's mother.
(22) Tosef. 'A.Z. IX. Since heathen law does not recognise this as a capital offence, he is judged by our law. This statement supports R. Johanan's contention.
Talmud - Mas. Sanhedrin 58a
born, but not conceived in sanctity,1 possesses kin on his mother's side but not on his father's side. E.g., if he married his sister by his mother, [born before his mother's conversion, and who subsequently became converted too,] he must divorce her; by his father, he may keep her; his father's sister by his father's mother, he must divorce her; by his father's father, he may keep her; his mother's sister by her mother, he must renounce her; by her father - R. Meir ruled that he must divorce her, but the Sages maintained that he may keep her; for R. Meir held that all forbidden degrees of consanguinity on the mother's side must be divorced; on the father's side may be kept.2 He may marry his brother's wife,3 his paternal uncle's wife, and all other relations by marriage are permitted to him, this including his father's wife. If he married a woman and her daughter4 he retains one and must divorce the other. But in the first place, he must not marry them.5 If his wife died, he may marry his mother-in-law; others say that he may not!6 - Rab Judah said, There is no difficulty: one dictum is by R. Meir according to R. Eliezer, and one is by R. Meir according to R. Akiba.7 For it has been taught: Therefore shall a man leave his father and his mother;8 R. Eliezer said: His father means 'his father's sister'; his mother, 'his mother's sister'.9 R. Akiba said: His father means 'his father's wife'; his mother is literally meant. And he shall cleave, but not to a male;10 to his wife, but not to his neighbour's wife;11 and they shall be as one flesh, applying to those that can become one flesh, thus excluding cattle and beasts, which cannot become one flesh with man.12
The Master stated: 'R. Eliezer said: His father means 'his father's sister'. But may it not mean his father literally?13 - This is forbidden by and he shall cleave, but not to a male. But perhaps it means 'his father's wife'? - That is taught by to his wife, but not to his neighbour's wife [which includes his father's]. But perhaps it forbids her even after his father's death? - It must be similar to his mother: just as his mother is not his relation by marriage, so his father must refer to a non-marriage relationship.
'His mother means, his mother's sister'. But may it not be literally meant? - That is taught by to his wife, but not to his neighbour's wife. But perhaps it forbids her even after his father's death? - It must be similar to his father: just as his father is not literally meant, so his mother is not literally meant.
'R. Akiba said: His father, means, his father's wife'. But perhaps it is literally meant? - That is taught by and he shall cleave, but not to a male. If so, is not his father's wife taught by to his wife, but not to his neighbour's wife? - That teaches that she is forbidden even after his father's death.
'His mother is literally meant'. But is this not taught by to his wife, but not to his neighbour's wife'? - This refers to his mother who was violated by his father.14
What are the grounds of their dispute? - R. Eliezer is of the opinion
(1) I.e., whose mother was a heathen at his conception, but became a Jewess before his birth.
(2) The guiding principal in all this is: 'a proselyte is as a new born babe', who stands absolutely in no relationship to any pre-conversion relation. Consequently, his brothers and sisters, father, mother, etc. from before his conversion lose his relationship on his conversion. Should they too subsequently become converted, they are regarded as strangers to him, and he might marry, e.g., his mother or sister. This is the Biblical law. But since heathens themselves recognised the law of incest in respect of maternal relations, the Rabbis decreed that this should hold good for a proselyte too, i.e., that he is forbidden to marry his maternal relations who were forbidden to him before his conversion, so that it should not be said that he abandoned a faith with a higher degree of sanctity than the one he has embraced (since he cannot be expected to understand the principle of complete annulment of relationships). In this case, since he was born in sanctity, he is really not a proselyte at all. He is so styled because he too is legally a stranger to all his father's and mother's pre-conversion relations. As for his mother's paternal sister, R. Meir held that since she is partly maternally related, she is forbidden, as otherwise it would be thought that a proselyte is permitted to marry his maternal relations. But the Rabbis held that there was no fear of this, and since the relationship is in its source paternal, it is not forbidden.
(3) By 'his brother's wife' is meant even his brother by his mother. For the heathens do not recognise consanguinity in relations by marriage, and consequently these are permitted to a proselyte.
(4) I.e., who stood in that relationship before they were converted.
(5) This is explained in Yeb. 98b as referring to those relations whom, as stated above, he may retain
(6) Now in this Baraitha a number of relations forbidden to Jews on pain of death e.g., his father's wife and his mother-in-law, are permitted to the proselyte, and hence to heathens in general; whilst a number of relations not forbidden on pain of death, e.g., his sister, his paternal and maternal aunts, are prohibited to him: This, taught in R. Meir's name, contradicts his other ruling that all forbidden degrees of consanguinity punishable by death are forbidden to heathens.
(7) Rashi states that both were his teachers, and cites Bezah 3b as proof. The J.E. (v. Meir) and Weiss, Dor II, 132, do not give R. Eliezer as one of his teachers. Nevertheless he may well have transmitted some of his rulings.
(8) Gen. II, 24.
(9) I.e., that union with these relations are forbidden.
(10) I.e., a prohibition against pederasty. This is deduced from the fact that it is natural only for the opposite sexes to cleave to each other.
(11) This is a prohibition of adultery.
(12) Hence R. Meir's dictum that heathens are forbidden those relations which are prohibited to Jews on pain of death, e.g., the father's wife, reflects R. Akiba's teaching, whilst his ruling in the Baraitha that a proselyte may marry his father's wife is R. Eliezer's view, who does not interpret 'his father' as his father's wife.
(13) Thus prohibiting pederasty.
(14) But not made his wife.
Talmud - Mas. Sanhedrin 58b
that only by referring to collateral relations1 can his father and his mother bear similar interpretations.2 But R. Akiba prefers to interpret his father as his father's wife, who is designated as the nakedness of his father, rather than his father's sister, who, is designated as his father's kin, not his father's nakedness.3
Come and hear: And Amram took him Jochebed his father's sister to wife.4 Does it not [presumably] mean his father's sister on her mother's side [too]?5 - No. It means his father's paternal sister.6
Come and hear: And yet indeed she is my sister; she is the daughter of my father, but not of my mother.7 Does not this prove that his mother's daughter is forbidden?8 - Now, is this logical: was she then his sister? She was his brother's daughter, and therefore, whether by his father or mother,9 permitted to him. But Abram declared to him [i.e., Abimelech] thus: I am fraternally related to her, [i.e.,she is my brother's daughter] on my father's side [i.e., my brother by my father] but not on my mother's side.10
Come and hear! Why did not Adam marry his daughter?11 So that Cain should marry his sister, as it is written, For I said, the world shall be built up by grace.12 But otherwise, she would have been forbidden [to Cain]?13 - Once however that it was permitted, it remained so.
R. Huna said: A heathen may marry his daughter. But should you ask, If so, why did not Adam marry his daughter? - In order that Cain might marry his sister, that the world might be built up by grace. Others give this version: R. Huna said: A heathen may not marry his daughter; the proof being that Adam did not marry his daughter. But that proof is fallacious: The reason was that Cain should marry his sister, so that the world should be built up by [Adam's] grace.
R. Hisda said: A heathen slave [owned by a Jew] may marry his daughter and his mother, for he has lost the status of a heathen, but has not yet attained that of a Jew.14 When R. Dimi came,15 he said in the name of R. Eleazar in the name of R. Hanina: A heathen who allotted a bondwoman to his slave [for concubinage] and then took her for himself is executed on her account. From when [is she regarded as the particular concubine of that slave]? - R. Nahman said: When she is referred to as so and so's mistress.16 When is she free again [to others]? - R. Huna said: From the time that she goes bareheaded in the streets.17
R. Eleazar said in R. Hanina's name: If a heathen had an unnatural connection with his wife, he incurs guilt; for it is written, and he shall cleave, which excludes unnatural intercourse.18 Raba objected: is there anything for which a Jew is not punishable and a heathen is?19 But Raba said thus: A heathen who violates his neighbour's wife unnaturally is free from punishment - Why so? - [Scripture saith:] To his wife, but not to his neighbour's; And he shall cleave, which excludes unnatural intercourse.20
R. Hanina said: If a heathen smites a Jew, he is worthy of death21 for it is written, And he looked this way and that way, and when he saw that there was no man, he slew the Egyptian.22 R. Hanina also said: He who smites an Israelite on the jaw, is as though he had thus assaulted the Divine Presence; for it is written, one who smiteth23 man [i.e. an Israelite] attacketh24 the Holy One.25
(Mnemonic: lifts, his servant, Sabbath.)26 Resh Lakish said: He who lifts his hand against his neighbour, even if he did not smite him, is called a wicked man as it is written, And he said unto the wicked man, Wherefore wouldst thou smite thy fellow?27 'Wherefore hast thou smiteth is not said, but wherefore wouldst thou smite, shewing that though he had not smitten him yet, he was termed a wicked man. Ze'iri said in R. Hanina's name: He is called a sinner, for it is written, But if not, I will take it by force;28 and it is further written, Wherefore the sin of the young men was very great before the Lord.29 R. Huna said: His hand should be cut off, as it is written, Let the uplifted arm be broken.30 R. Huna had the hand cut off [of one who was accustomed to strike other people].31 R. Eleazar said: The only thing to be done with him is to bury him, as it is written, And a man of [uplifted] arm, for him is the earth.32 R. Eleazar also said: The earth was given only to the strong.33 as it is said, But as for the mighty man, for him is the earth.34 Resh Lakish said also: What is the meaning of the verse, He that serveth his land shall be satisfied with bread?35 If one enslaves himself to his land [continually toiling thereon] he shall be satisfied with bread: if not, he shall not be satisfied with bread. Resh Lakish also said: A heathen who keeps a day of rest, deserves death, for it is written, And a day and a night they shall not rest,36 and a master has said: Their prohibition is their death sentence.37 Rabina said: Even if he rested on a Monday. Now why is this not included in the seven Noachian laws? - Only negative injunctions are enumerated, not positive ones.38
(1) I.e., to the father's sister or mother's sister.
(2) For they cannot both be literal, since his father is prohibited by 'and he shall cleave'; nor can they both refer to relationship by marriage, since his mother is a blood relation.
(3) Lev. XVIII, 8: The nakedness of thy father's wife thou shalt not uncover it is thy father's nakedness; Lev. XVIII, 12: Thou shalt not uncover the nakedness of my father's sister: she is thy father's near kinswoman. Since his father's wife is designated his father's nakedness she forms part and parcel of himself, as it were, in contradistinction to his father's sister, who by being described as his father's kin, is recognised as a separate entity. Consequently, in the interests of literalness 'his father's wife' is a more preferable interpretation.
(4) Ex. VI, 20.
(5) This refutes R. Eliezer's ruling. [Belonging to the pre-Sinaitic era, the Patriarchs were accounted Noachians.]
(6) Only this relation was permitted in the pre-Sinaitic era. But his father's maternal sister would have been forbidden.
(7) Gen. XX, 12. Spoken by Abraham about Sarah.
(8) This contradicts R. Akiba's ruling. For since he interprets the verse as referring us his father's wife and his mother, who are forbidden on pain of death, he evidently regards those who are forbidden under penalty of extinction as permissible, and his mother's daughter is only thus forbidden, but not on pain of death.
(9) This refers to his brother.
(10) Not that she would have been forbidden in that case, but this was stated merely for the sake of exactness.
(11) [Or why could not Adam have married his daughter? Eve's offence should have been followed by her death, and as to Adam, he could have found a help-meet in his daughter (Tosaf.) ]
(12) Ps. LXXXIX, 2. It was an act of grace on Adam's part to deny himself his sister; or, as Rashi states, God commanded Adam to deal graciously with Cain, so that Cain, by marrying her, should build up the world.
(13) This proves that one's paternal sister was forbidden to the sons of Noah.
(14) Heathen slaves owned by Jews occupied an intermediate position in respect to Judaism. The males were circumcised, and permitted to eat of the Passover sacrifice. Like women, they were bound to observe all negative commandments and all positive ones not limited to certain times. We see here that this applied to marriage too. Their status was neither that of a heathen nor of an Israelite proper. As they were no longer heathens, they stood in no relationship to their former relations. But as they were not Jews either, there was no need to forbid them their former maternal relations through fear that it would be said that they had left a higher sanctity for a lower one.
(15) V. supra p. 390, n. 1.
(16) Lit., 'girl'.
(17) Even non-Jewish married women did not walk bareheaded in the streets, and this bondwoman, though not legally married, would do likewise. If she appeared bareheaded, it was a sign that her connection with the slave to whom she had been allotted was now broken.
(18) His wife derives no pleasure from this, and hence there is no cleaving.
(19) A variant reading of this passage is: Is there anything permitted to a Jew which is forbidden to a heathen. Unnatural connection is permitted to a Jew.
(20) By taking the two in conjunction, the latter as illustrating the former, we learn that the guilt of violating the injunction 'to his wife but not to his neighbour's wife' is incurred only for natural, but not unnatural intercourse.
(21) [By the Hand of God, V. Yad, Melakim. I, 6].
(22) Ex. II, 12. Thus Moses slew the Egyptian for striking an Israelite, proving that he had merited it.
(23) Deriving mokesh from, nakosh.
(24) Yala' ילע is here derived from loa' לוע the jaw: lit., 'smiteth the jaw.
(25) Prov. XX, 25.
(26) V. 387 n. 8.
(27) Ex. II, 13.
(28) I Sam,. II, 16. This refers to the sons of Eli, who demanded their portion of the sacrifices before it was due, threatening physical violence if their demands were not satisfied.
(29) Ibid. 16.
(30) Job XXXVIII, 15. The editions give the reference as Job XXXI, but this is an error caused by a slightly similar passage in XXXI, 22.
(31) This is not actually permitted in the Torah. Weiss (Dor, II. 14) holds that R. Huna was influenced by Persian practice in this.
(32) I.e., he is to be buried, homiletical rendering of Job XXII, 8.
(33) I.e only a strong man should wish to possess land, as there are always quarrels in connection therewith.
(35) Prov. XII, 11
(36) Gen. VIII, 22. 'They' is here made to apply to men, and 'shall not' is taken to mean 'may not'.
(37) Eisenstein, J. E., V. p. 623. suggests that this may have been directed against the Christian Jews, who disregarded the Mosaic law yet observed the Sabbath, and quotes Maimonides who advances the following reason: 'The principle is, one is not permitted to make innovations in religion or to create new commandments. He has the privilege to become a true proselyte by accepting the whole law.' (Yad. Melakim, X, 9.) He also points out that 'Deserves death' expresses strong indignation, and is not to be taken literally; [cf. the recurring phrase. 'He who transgresses the words of the Sages deserves death.' Ber. 6b.]
(38) The seven Noachian laws deal with things which a heathen must abstain from doing. But when we say that a heathen must not observe a day of rest, we bid him to do a positive action, viz., work.
Talmud - Mas. Sanhedrin 59a
But the precept of observing social laws is a positive one, yet it is reckoned? - It is both positive and negative.1
R. Johanan said: A heathen who studies the Torah deserves death, for it is written, Moses commanded us a law for an inheritance;2 it is our inheritance, not theirs.3 Then why is this not included in the Noachian laws? - On the reading morasha [an inheritance] he steals it; on the reading me'orasah [betrothed], he is guilty as one who violates a betrothed maiden, who is stoned.4 An objection is raised: R. Meir used to say. Whence do we know that even a heathen who studies the Torah is as a High Priest? From the verse, [Ye shall therefore keep my statutes, and my judgments:] which, if man do, he shall live in them.5 Priests, Levites, and Israelites are not mentioned, but men: hence thou mayest learn that even a heathen who studies6 the Torah is as a High Priest! - That refers to their own seven laws.7
'R Hanania b. Gamaliel said: [They were also commanded] not to partake of the blood drawn from a living animal.'
Our Rabbis taught: But flesh with the life thereof, which is the blood thereof, shall ye not eat,8 this prohibits flesh cut from the living animal. R. Hanina b. Gamaliel said: It also prohibits blood drawn from a living animal. What is his reason? - He reads the verse thus: flesh with the life thereof [shall ye not eat]: blood with the life thereof shall ye not eat. But the Rabbis maintain that this reading teaches that flesh cut from live reptiles is permitted.9 Similarly it is said, Only be sure that thou eat not the blood: for the blood is the life,' and thou mayest not eat the life with the flesh.10 But the Rabbis maintain that the verse teaches that the blood of arteries, with which life goes out, [is also forbidden as blood].11
Why was it first enjoined upon the sons of Noah, and then repeated at Sinai? - As the dictum, of R. Jose b. Hanina. For R. Jose b. Hanina said: Every precept which was given to the sons of Noah and repeated at Sinai was meant for both [heathens and Israelites]; that which was given to the sons of Noah but not repeated at Sinai was meant for the Israelites, but not for the heathens. Now, the only law thus commanded to the children of Noah and not repeated at Sinai was the prohibition of the sinew that shrank [nervous ischiadicus], and in accordance with R. Judah's view.12
The Master said: 'Every precept which was given to the sons of Noah and repeated at Sinai was meant for both [Noachides and Israelites]'. On the contrary, since it was repeated at Sinai, should we not assume it to be meant for Israel only?13 - Since idolatry was repeated as Sinai, and we find that the Noachides were punished for practising it,14 we must conclude that it was meant for both.
'That which was given to the sons of Noah but not repeated at Sinai was meant for the Israelites, but not for the heathens.' On the contrary, since it was not repeated at Sinai, should we not assume that it was meant for the Noachides and not for Israel?15 - There is nothing permitted to an Israelite yet forbidden to a heathen. Is there not? But what of a beautiful woman?16 - There it is because the heathens were not authorised to conquer.17 But what of a thing worth less than a Perutah?18 - There it is because the heathens do not forgive.19
'Every precept which was given to the sons of Noah and repeated at Sinai was meant for both [Noachides and Israelites]'.
(1) Positive: In dispense justice; negative: to refrain from injustice. But the Sabbath is entirely positive.
(2) Deut. XXXIII. 4.
(3) This seems a very strong expression. In the J. E. (loc. cit.) it is suggested that R. Johanan feared the knowledge of Gentiles in matters of Jurisprudence, as they would use it against the Jews in their opponents' courts. In support of this it may be observed that the Talmud places R. Johanan's dictum (which, of course, is not to be taken literally) immediately after the passage dealing with the setting up of law courts by Gentiles. It is also possible that R. Johanan's objection was to the studying of Oral Law by Jewish Christians, as the possession of the Oral Law was held to be the distinguishing mark of the Jews. It is significant that it was R. Johanan who also said that God's covenant with Israel was only for the sake of the Oral Law. (Cf. Ex. Rab. 47.)
(4) In Pes. 49b two opinions on the reading of this verse are recorded. One view is that it should be read, Moses commanded us a law for an inheritance (morasha מורשה), in accordance with the Scriptural text. Another version is Moses commanded us a law for a betrothal (reading me'orasah מארסה = מורשה i.e., as something betrothed, consecrated to us, from ארס = ארש). On the first view, this prohibition is included in that of robbery; on the second, in that of adultery.
(5) Lev. XVIII. 5.
(6) Which includes observing.
(7) It is meritorious for them to study these; but not laws which do not pertain to them.
(8) Gen. IX, 4.
(9) V. infra 59b.
(10) Deut. XII, 23. Thus, the blood being equated with the life, it may not be eaten whilst 'the life' is with the 'flesh', i.e., whilst the animal is alive.
(11) The prohibition of blood is mentioned in the same chapter in connection with the slaughtering of the animal: 15 seq., Notwithstanding thou mayest kill and eat flesh in all thy gates . . . Only ye shall not eat the blood. Now, owing to this juxtaposition, I might think that only the blood that gushes forth from the throat when the animal is slaughtered is forbidden. Therefore the second injunction in v. 23 equates the prohibition of blood with that of flesh cut from the living animal. Just as the latter is forbidden in itself, so the former is forbidden irrespective of any connection with slaughtering. In Ker. 22a R. Johanan and Resh Lakish dispute as to what is meant by 'the blood with which life goes out'.
(12) R. Judah maintains that this was forbidden to the children of Jacob, who, living before the giving of the Law, are accounted Noachians. But the Rabbis maintain that this was given at Sinai, but that Moses when writing the whole Pentateuch, was commanded to insert it in Gen. XXXII, 33, so as to elucidate its reason.
(13) For if it were not so repeated, it would be natural to suppose that its application was a universal one. Hence its repetition would seem to limit it to Israel.
(14) V. p. 382. n. 3.
(15) The stand point of this objection is that the code promulgated at Sinai to the Israelites should cancel any previous code not given specifically to them.
(16) V. supra 57a.
(17) I.e., Palestine. For even the Israelites were permitted this only in the course of their conquest of Palestine, but not otherwise.
(18) The theft of which is regarded as an offence by heathens but not by Jews. V. supra 57a.
(19) Actually, it would be theft in the case of a Jew too, but that Jews are not particular about such a trifle, and readily forgive. Heathens, however, do not forgive, and therefore it is theft in their case.
Talmud - Mas. Sanhedrin 59b
But circumcision, which was given to the Sons of Noah, for it is written, Thou shalt keep my covenant,1 and repeated at Sinai, And in the eighth day the flesh of his foreskin shall be circumcised,2 yet was meant for Israel, and not for the Noachides? - That repetition was inserted to permit circumcision on the Sabbath, by interpreting, on the day [whichever it is], and even on the Sabbath.3
But procreation, which was enjoined upon the Noachides, for it is written, And you be ye fruitful and multiply.4 and repeated at Sinai, as it is written, Go say to them, get you in to your tents again,5 was nevertheless commanded to Israel but not to the heathens? - That repetition was to teach that whatever has been constitutionally forbidden by a majority vote requires another majority vote to abrogate it.6 If so, may we not say of each [of the Noachian laws] that it was repeated£for a definite purpose?7 - He éeans this: why should the prohibition be repeated?8
'Now the only law [thus commanded to the children of Israel and not repeated at S:nai] was the prohibition of the sinew that shrank [nervus ischiadicus], and in accordance with R. Judah's view.' But these9 too were not repeated.10 - These two were repeated, though for a purpose, but this was not repeated at all.
An alternative answer is this:11 Circumcision was from the very first commanded to Abraham only [and not to the Noachides in general]: Thou shalt,keep my covenant, therefore, thou and thy seed after thee in their generation, 12 meaning, thou and thy seed are to keep it, but no others. If so, should it not be incumbent upon the children of Ishmael [Abraham's soa]? - For in Isaac shall thy seed be called.13 Then should not the children of Esau be bound to practise it?-In Isaac,14 but not all Isaac. R. Oshaia objected: If so, the children of Keturah should have been exempt!15 - Did not R. Jose b. Abin, or as others say, R. Jose b. Hanina, state: [And the uncircumcised man child whose flesh of his foreskin is not circumcised,that soul shall be cut off from his people;] he hath broken my covenant16 - this extends the precept [of circumcision] to the children of Keturah?17
Rab Judah said in Rab's name: Adam was not permitted to eat flesh, for it is written, [Behold I ave given you all the herbs, etc.] to you it shall be for food, and to all the beasts of the earth, 18 implying, but the beasts of the earth shall not be for you.19 But with the adVent of the sons of Noah, it was permitted, for it is said, [Every moving thing that liveth shall be meat for you;] even as the green herb have I given you all things.20 Now one might think that the prohibition of flesh cut from the living animal does not apply to them [sc. the Noachides]: therefore the Writ teacheth, But flesh with the life thereof, which is the blood thereof, shall ye not eat.21 One might think that this prohibition applies even to reptiles; therefore it is stated - but.22 How is this implied? - R. Huna said [But flesh with the life thereof, which is] the blood thereof: this shews that the prohibition applies only to those creatures whose flesh is distinct from their blood [in its prohibition]; excluding reptiles, whose flesh is not distinct from their blood.23
An objection is raised: And rule over the fish of the sea;24 surely that means that they should serve as food?25 - No. It refers to toil.26 But can fish be made to work? - Yes, even as Rahabah propounded: What if one drove [a waggon] with a goat and a shibbuta?27 Come and hear: and over the foul of the heaven.28 Surely this is in respect of food? - No. It refers to toil. But can fowl be made to work? - Yes, even as Rabbah, son of R. Huna propounded: According to the ruling of R. Jose b. R. Judah, what if one threshed [corn] with geese or cocks? 29
Come and hear: And over every living creature that moveth upon the earth!30 - That refers to the serpent. For it has been taught: - R. Simeon b. Manassia said: Woe for the loss of a great servant. For had not the serpent been cursed, every Israelite would have had two valuable serpents, sending one to the north and one to the south to bring him costly gems, precious stones and pearls.31 Moreover, one would have fastened a thong under its tail, with which it would bring forth earth for his garden and waste land.32
A [further] objection is raised: R. Judah b. Tema said: Adam reclined in the Garden of Eden, whilst the ministering angels roasted flesh and strained wine for him. Thereupon the serpent looked in, saw his glory, and became envious of him?33 - The reference there is to flesh that descended from heaven. But does flesh descend from heaven? - Yes; as in the story of R. Simeon b. Halafta, who was walking on the rnad, when lions met him and roared at him. Thereupon he quoted: The young lions roar after their prey;34 and two lumps of flesh descended [from heaven]. They ate one and left the other. This he brought to the schoolhouse and propounded: Is this clean [fit for food] or not? - They [sc. the scholars] answered: Nothing unclean descends from heaven. R. Zera asked R. Abbahu: What if something in the shape of an ass were to descend? - He replied: Thou howling yorod:35 did they not answer him that no unclean thing descends from heaven?36
'R. Simeon said, They were also forbidden to practice sorcery.' What is R. Simeon's reason? - Because it is written,
(1) Gen. XVII, 9. Abraham and his descendants until Sinai are also accounted sons of Noah.
(2) Lev. XII, 3.
(3) Hence, being repeated for a purpose, the above principle does not apply to it.
(4) Gen. IX, 7.
(5) Deut. V, 27. This is interpreted as a command to resume their marital obligations, which were suspended for three days before the Revelation, v. Ex. XIX, 15.
(6) Although the prohibition in Ex. XIX, 15 was explicitly limited to three days, yet after that it did not cease automatically, but was formally abrogated. This proves that any prohibition constitutionally imposed, as by a majority of the Sanhedrin, even for a limited period, must be constitutionally repealed thereafter. Hence the repetition being necessary, it is not subject to the general principle. - So Rashi. Tosaf however, (here and in Bezah 5a) maintains that a temporary prohibition automatically ceases at the end of its period. Accordingly, Ex. XIX, 15 is to be translated: Be ready against the third day (for God's Revelation); approach not your wives (for an unspecified period). Tosaf. therefore substitutes this explanation: A prohibitory measure, constitutionally passed, does not automatically cease when its reason no longer exists. Thus in this case the prohibition was obviously on account of the approaching Revelation, yet after the Revelation, when there was no longer any reason for its continuance, it had to be formally revoked.
(7) E.g., idolatry, to shew which acts of devotion are forbidden; incest, to teach its punishment.
(8) I.e., if some additional detail had to be taught, that alone could have been stated without repeating the basic law. Such repetition must have been to enlarge its scope, as embracing both Israelites and heathens.
(9) I.e., circumcision and procreation.
(10) For, as explained above, their repetition being for a definite purpose, is not a repetition at all.
(11) This is in answer to the first difficulty of circumcision having been given to the Noachides and repeated at Sinai.
(12) Gen. XVII, 9.
(13) Ibid. XXI, 12.
(14) Heb. ביצחק the ב (in) being taken as partitive preposition.
(15) Keturah was Abraham's wife after Sarah's death, by whom he had six sons. Gen. XXV, 1f. According to the verse For in Isaac etc. these should not have been included in the precept.
(16) Gen. XVII, 14.
(17) This is the reply. The verse teaches the inclusion of the immediate sons of Keturah, but not of their descendants.
(18) Gen. I, 29f.
(19) I.e., the herbs, etc. have been given to you and to the beasts of the earth, but the beasts of the earth have not been given to you for food.
(20) Ibid. IX, 3.
(21) Ibid. 4.
(22) Heb. אך akh. It is a principle of Talmudic hermeneutics that the particles akh (but) and rak (save) always indicate a limitation or exclusion. Here akh is interpreted as teaching the exclusion of reptiles from the law under discussion.
(23) The mention of blood is redundant, for the verse should have read, but flesh with the life thereof shall ye not eat, meaning, whilst life is in it thou must not eat its flesh; it being self evident that the life force lies in the blood. The redundancy teaches that this applies only to those creatures that have a separate prohibition for its flesh (cut from, the living animal), and a separate one for its blood. But the blood of reptiles is not separate from its flesh and is forbidden by the same injunction, there being no separate law. Hence they are excluded from the present verse.
(24) Ibid. I, 28.
(25) This was said to Adam.
(26) Adam was given dominion over the lower creatures, to make them work for him.
(27) Name of a fish, conjectured by Jastrow to be the mullet (Cephalus, v. Payne Smith, Thesaurus Syriacus 4029). The problem raised is whether this would involve the transgression of the prohibition, Thou shalt not plow an ox and ass together, Deut. XXII, 10.
(28) Continuing the verse.
(29) V. B.M. 91b. The problems raised in connection with the prohibition, Thou shalt not muzzle the ox when he treadeth out the corn. Deut. XXV, 4 shows that birds may be utilized for service.
(30) The Heb. חיה translated 'living creature', denotes literally a wild animal, which cannot be put to service, but can only be caught and eaten.
(31) Heb. סנדלבונים from ** (Levy) or ** (Krauss).
(32) Thus the Serpent was intended to be put to service before it was cursed.
(33) This proves that flesh was permitted to Adam.
(34) Ps. CIV, 21.
(35) Yarod is a bird of solitary habits, or a jackal (Rashi). The meaning is: what a foolish question to ask!
(36) Hence thy supposition is an impossible one; and if it did happen, it would be fit for food.
Talmud - Mas. Sanhedrin 60a
Thou shalt not suffer a witch to live;1 and this is followed by, Whosoever lieth with a beast shall surely be put to death:2 thus, all who are included in the second prohibition are included in the first.3
'R. Eleazar said; They were also enjoined against the forbidden mixtures.' Whence do we derive this? - Samuel replied: Because Scripture saith, My statutes ye shall keep,4 implying the statutes which I have already decreed:5 viz., Thou shalt not let thy cattle gender with a diverse kind: Thou shalt not sow thy field with mingled seed.6 This teaches: just as in the case of animal life, the prohibition is against hybridization, so in plant life, the injunction is against grafting;7 and just as the former holds good both within the land [sc. Palestine] and without,8 so the latter holds good both within and without Palestine. But if so, does the verse, Ye shall therefore keep my statutes9 also imply the statutes which I imposed long ago?10 - There the verse reads, Ye shall therefore keep my statutes which I [now] command you: but here it reads, My statutes ye shall keep, implying the statutes decreed from of old shall ye keep.11
R. JOSHUA B. KARHA SAID etc. R. Aha b. Jacob said: He is not guilty unless he cursed the Tetragrammaton, excluding a biliteral Name,12 the blaspheming of which is not punishable. Is this not obvious, the Mishnah stating, May Jose smite Jose?13 - I might think that the name is used as a mere illustration;14 he therefore teaches otherwise.
Others give this version: - R. Aha b. Jacob said: This proves that the Tetragrammaton is also a Divine Name.15 But is it not obvious, since the Mishnah states: JOSE SMITE JOSE [using a four-lettered name]? - I might think that the great16 Name must be employed, whilst Jose is merely an illustration [of the mode of testifying]; therefore he teaches otherwise.
WHEN THE TRIAL WAS FINISHED, etc. Whence do we know that they arose? - R. Isaac b. Ami said, because the Writ saith - And Ehud came unto him: and he was sitting in a summer parlour, which he had for himself alone. And Ehud said, I have a message from God unto thee. And he arose out of his seat.17 Now, does this not afford an ad majus conclusion: If Eglon king of Moab, who was only a heathen and knew but an attribute of God's name, nevertheless arose, how much more so must an Israelite arise when he hears the Shem Hameforash.18
Whence do we know that they rent their garments? - From the verse, Then came Eliakim the son of Hilkiah, which was over the household, and Shebna the scribe, and Joah the son of Asaph the recorder, to Hezekiah with their clothes rent, and told him the words of Rab-Shakeh.19
WHICH RENT WAS NOT TO BE RESEWN. Whence do we derive this? - R. Abbahu said: A gezerah shawah is deduced from the word 'rent'.20 This verse states, with their clothes rent; whilst elsewhere is written, And Elisha saw it [sc. Elijah's ascension] and he cried, My father, my father, the chariot of Israel and the horsemen thereof. And he saw him no more; and he took hold of his own clothes and rent them in two rents.21 Now, do we not understand from, 'and he rent them in two' that the cognate object is 'rents'; why then does the Writ expressly state 'rents'? - To teach that they were always to remain thus.22
Our Rabbis taught: He who hears [the Name blasphemed], and he who hears it from the person who first heard it [i.e., from the witness who testifies], are both bound to rend their garments. But the witnesses are not obliged to rend their clothes [when they hear themselves repeating the blasphemy in the course of their testimony], because they had already done so on first hearing it. But what does this matter: do they not hear it now too?23 - You cannot think so, because it is written, And it came to pass, when king Hezekiah heard it [sc. the report of Rab-Shakeh's blasphemy] that he rent his clothes. Thus, Hezekiah rent his clothes, but they did not. Rab Judah said in Samuel's name: He who hears the Divine Name blasphemed by a gentile need not rend his clothes. But if you will object, what of Rab-Shakeh?24 - He was an apostate Israelite.
Rab Judah also said in Samuel's name: One must rend his clothes only on hearing the Shem hameyuhad25 blasphemed, but not for an attribute of the Divine Name. Now both of these statements conflict with R. Hiyya's views. For R. Hiyya said: He who hears the Divine Name blasphemed nowadays need not rend his garments, for otherwise one's garments would be reduced to tatters.26 From whom does he hear it? If from an Israelite - are they so unbridled [as to sin thus so frequently]? But it is obvious that he refers to a gentile. Now, if the Shem hameyuhad is meant, are the gentiles so well acquainted with it [as to make such frequency possible]? Hence it must refer to an attribute, and concerning that he says that only nowadays is one exempt, but formerly one had to rend his clothes. This proof is conclusive.
THE SECOND WITNESS STATED, I TOO HAVE HEARD THUS. Resh Lakish said: This proves that 'I too have heard thus' is valid evidence in civil and capital cases,27 but that the Rabbis imposed a greater degree of stringency [insisting that each witness should explicitly testify]. Here, however, since this is impossible [on account of the desire to avoid unnecessary blasphemy], they reverted to Biblical law. For should you maintain that such testimony is [Biblically] invalid, can we execute a person when it is impossible for the evidence to be validly given?28
AND THE THIRD DID LIKEWISE. This anonymous statement agrees with R. Akiba, who likens three witnesses to two.29 [
(1) Ex. XXII, 17.
(2) Ibid. 18.
(3) Therefore, since the Noachides were forbidden bestiality, they were also forbidden sorcery.
(4) Lev. XIX, 19.
(5) Since other precepts are not introduced by this formula, we interpret it thus.
(6) Hence these were pre-Sinaitic, i.e., given to the sons of Noah.
(7) For the first is a law against crossing two actual animals to produce a hybrid. So the second must refer to the grafting of one tree upon another of a different kind, but not to the sowing of different seeds together, which are trees in posse but not in esse.
(8) It is a general principle that any obligation imposed upon man and not dependent upon the soil is binding outside Palestine too.
(9) Ibid. XVIII, 26.
(10) That verse refers to God's statutes in general, and if Samuel's interpretation is correct, it follows that all the statutes of the Torah were given to the Noachides.
(11) The answer is based on the fact that in Lev. XIX, 19 'statutes' comes first in the verse, implying that they were already in existence, whilst in XVIII, 26 ' Ye shall keep' is first, teaching that the statutes which follow were only then imposed.
(12) EL or YH.
(13) Thus, as a substitute a four lettered name is used, shewing that the Tetragrammaton must have been employed.
(14) Of how the witnesses gave their testimony. But the choice of a four lettered name - Jose - might be quite fortuitous.
(15) In addition to the Tetragrammaton, there were twelve-lettered, forty-two-lettered, and seventy-two-lettered Names. (Kid. 71a; Lev. Rab. XXIII; Gen. Rab. XLIV) R. Aha b. Jacob states that since 'Jose' is used as a substitute, it proves that even if the longer Names are not employed, but merely the Tetragrammaton, the guilt of blasphemy is incurred.
(16) I.e., of forty-two letters.
(17) Judg. III, 20.
(18) Lit., 'the distinguished Name', synonymous with the Shem hameyuhad, the unique Name. Both words designate something which is distinguished from other objects of its kind. (V. J. E., XI, 262) The term also means 'preeminent'. From Rashi here and in 'Er. 18b it appears that he does not regard the Shem hameforash as the Tetragrammaton. But Maimonides (Yad, Yesode Hatorah, VI, 2; Tefilah, XIV, 10) declares that they are identical. In general it was regarded as sinful to utter this Name (Sanh. 90a; 'A.Z. 17b; Kid. 71a), nor was it widely known, being an object of esoteric knowledge (Kid. Ibid; Yer. Yoma 40), though there were exceptions
(19) II Kings XVIII, 37. Their clothes were rent on account of Rab-Shakeh's blaspheming of God. Cf. Ibid. XIX, 4.
(20) Ibid. II, 11.
(21) Ibid. 12.
(22) I.e., never to be resewn; and by analogy, the same interpretation is placed upon II Kings XVIII, 37.
(23) Hence they should be obliged to rend their clothes again.
(24) Who was a gentile, and yet his hearers rent their clothes: in fact, that incident is the basis of the law.
(25) V. p. 408, n. 1.
(26) Blasphemy being of such frequent occurrence.
(27) I.e., in these cases, when the first witness has testified, it is sufficient, by Biblical law, for the second to say, 'I too heard (or saw) thus', without explicitly stating what he had heard or seen.
(28) If the testimony must be given in particular form, but cannot, it is obvious that the malefactor should not be executed.
(29) This is in reference to Deut. XIX, 15: at the mouth of two witnesses, or at the mouth of three witnesses shall the matter be established. The difficulty arises, if two witnesses are sufficient, surely three are: then why state it? R. Akiba answers, To teach that just as in the case of two, if one is proved invalid, the whole testimony loses its validity (since only one witness is left), so also, even if there are three or more, and one was proved invalid, the testimony of all is valueless, though there are still two or more valid witnesses left. Now, when the Mishnah states that the third also must testify 'I too heard thus', it is in conformity with R. Akiba's ruling, so that should he be contradicted as having been absent, the entire testimony is null. Otherwise, it would be unnecessary for the third witness to be examined at all.
Talmud - Mas. Sanhedrin 60b
MISHNAH. HE WHO ENGAGES IN IDOL-WORSHIP [IS EXECUTED]. IT IS ALL ONE WHETHER HE SERVE IT, SACRIFICE, OFFER INCENSE, MAKE LIBATIONS, PROSTRATE HIMSELF, ACCEPT IT AS A GOD, OR SAY TO IT, 'THOU ART MY GOD.' BUT HE WHO EMBRACES, KISSES IT, SWEEPS OR SPRINKLES THE GROUND BEFORE IT, WASHES IT, ANOINTS IT, CLOTHES IT, OR PUTS ON ITS SHOES, HE TRANSGRESSES A NEGATIVE PRECEPT [BUT IS NOT EXECUTED]. HE WHO VOWS OR SWEARS [LIT. CONFIRMS A THING] BY ITS NAME, VIOLATES A NEGATIVE PRECEPT. HE WHO UNCOVERS HIMSELF BEFORE BAAL-PEOR1 [IS GUILTY, FOR] THIS IS THE MODE OF WORSHIPPING HIM. HE WHO CASTS A STONE ON MERCULIS2 THEREBY WORSHIPS IT.
GEMARA. What is meant by 'WHETHER HE SERVE IT'?3 - R. Jeremiah said: This is what is meant: Whether he serve it in its normal way, or sacrifice, make libations, offer incense, or prostrate himself, even if these acts are not the normal mode of worshipping that particular deity. Why is blood sprinkling not included? - Abaye said: Because sprinkling is the same as offering LIBATIONS,4 as it is written, their drink libations of blood will I not offer.5
Whence do we derive all these?6 - Our Rabbis taught: Had Scripture written, He that sacrificeth shall be utterly destroyed.7 I would have thought that the Writ refers to sacrificing without the Temple precincts;8 therefore Scripture adds: to any God, shewing that it refers to sacrificing to idols.9 From this I know only that sacrificing [as an abnormal act or worship] is punishable: Whence do I learn the same of offering incense and making libations? - From the additional words, save unto the Lord alone, whereby the Writ restricted all these services to the worship of the Divine10 name. Now, since sacrificing was singled out from the general statement,11 teaching that the latter applies to all services performed within the Temple precincts,12 whence can it be extended to include prostration? - From the verse, And he hath gone and served other gods, and prostrated himself before them,13 which is followed by, Thou shalt bring forth that man or that woman . . . and shalt stone them with stones.14 From this we learn the punishment: whence do we derive the formal prohibition?From the verse, For thou shalt prostrate thyself to no other god.15 I might think that I may also include embracing, kissing, and putting on its shoes [as punishable by death]:16 but the Writ saith, He hath sacrificeth.17 Now, sacrificing was included in the general statement;18 wherefore was it singled out? - That a comparison therewith might be drawn, and to teach you: just as sacrificing is distinguished, in that it is a service within the Temple precincts, and the death penalty is incurred through it, so for all services performed in the Temple precincts [in lawful worship] one is liable to death [when performing them idolatrously]. Hence prostration was singled out to illumine itself alone, whilst sacrificing was singled out to throw light upon the general proposition.19
The Master stated: 'I would have thought that the Writ refers to sacrificing without the Temple precincts'. But is that not punishable by extinction?20 - I might have thought: if he was warned, he is executed; if not, he is punished by extinction. It is therefore taught otherwise.
Raba, son of R. Hanan asked Abaye: Let us say that prostration was singled out in order to throw light upon the general law; and if you answer, in that case, why was sacrificing singled out too?21 To throw light upon itself, viz., that the intention to perform one act in the service of idolatry, even if made during the performance of another [non-idolatrous] act, renders one liable to punishment. For it has been taught: If one slaughtered a cow with the intention of sprinkling its blood and burning its fat idolatrously, - R. Johanan said,
(1) A Moabite deity. 'That the statements of the Rabbis (on the repulsive mode of worship) are not wholly imaginative and do not take their colouring from the rites of some heathen or antinomian-Gnostic sects is shewn by the fact that the worship of Peor is ridiculed, but nowhere stigmatised as moral depravity, by the Rabbis, which latter might have been expected, had the assertion of the Rabbis been based on the Gnostic cults mentioned.' J. E. s.v. Baal-Peor.
(2) Mercurius, a Roman divinity, identified with the Greek Hermes; also a statue or a way-mark dedicated to Hermes, the patron deity of the wayfarer.
(3) Are not all the actions mentioned modes of worship?
(4) And already included in the Mishnah.
(5) Ps. XVI, 4.
(6) I.e., that guilt is incurred for all these acts of worship.
(7) Omitting the words, to any God, Ex. XXII, 19.
(8) Since this is forbidden elsewhere; Lev. XVIII, 3f; 8f.
(9) Now the reference must be to sacrificing as an abnormal mode of worship, for the normal act of worship is designated in Heb. by עבד (to serve), and the verse should have read, He who serves any other god by sacrificing to it. Every normal act of service is derived from Deut. XVII, 3.
(10) Heb. Shem Hameyuhad, v. p. 408, n. 1.
(11) In Deut. XVII, 2-5; v. next note.
(12) The penalty of death for idolatry is stated in Deut. XVII, 2-5; If there be found among you . . . a man or woman that hath wrought wickedness . . . And hath gone and served other gods and prostrated himself before them . . . thou shalt stone them with stones, till they die. 'And hath gone and served other gods' is a general statement, not particularizing any mode of service. Consequently, the verse in Ex. XXII, 19, which ordains the death penalty for sacrificing, is a singling out of a particular service from the general proposition of Deut. XVI, 3. Now it is one of the principles of exegesis that in such a case the particularized statement is intended to illumine and define the general proposition as a whole: thus just as sacrificing is a form of service performed within the Temple precincts (in lawful worship), so the general statement, 'and hath . . . served other gods' refers to such services, e.g., sprinkling of the blood, offering incense, and making libations. But prostration was not a mode of worship within the Temple precincts.
(13) Ibid. 3.
(14) Ibid. 4.
(15) Ex. XXXIV, 14.
(16) Since prostration is specially stated, I might think that it teaches that for any act of adoration, even if it is not the normal mode of worship, and not performed within the Temple precincts, just as prostration, guilt is incurred.
(17) Ibid. XXII, 19.
(18) Of Deut. XVIII, 3.
(19) For if prostration was singled out in order to throw light upon the general law, viz., that for paying honour to an idol in any shape one is liable to death, why should sacrificing have been singled out too, since thereby one certainly honours the deity?
(20) Kareth, v. Glos. cf. Lev. XVIII, 3f; 8f; whilst here the penalty of death is decreed.
(21) V. p. 411, n. 9.