Michael L. (Michael Levi) Rodkinson.

New edition of the Babylonian Talmud; original text, edited, corrected, formulated and translated into English (Volume 17) online

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BM 500 .R6 1896 v. 17-18

Talmud.

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Babylonian Talmud



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Babylonian Talmud



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MICHAEL L. RODKINSON



SECTION JURISPRUDENCE (DAMAGES)

TRACTS MACCOTH, SHEBUOTH
AND EDUYOTH



Volume IX. (XVII.)



NEW YORK

NEW TALMUD PUBLISHING COMPANY
1 1 17 Simpson Street



EXPLANATORY REMARKS.

In our translation we adopted these principles:

1. Tenan of the original — We have learned in a Mishna; Tania — We have
learned in a Boraitha; Itemar — It wras taught.

2. Questions are indicated by the interrogation point, and are immediately
followed by the answers, without being so marked.

3. When in the original there occur two statements separated by the phrase,
Lishna achreiia or IVaibayith Aema ox Ikha i/'rtwr? (literally, "otherwise interpreted "),
we translate only the second.

4. As the pages of the original are indicated in our new Hebrew edition, it is not
deemed necessary to mark them in the English edition, this being only a translation
from the latter.

5. Words or passages enclosed in round parentheses ( ) denote the explanation
rendered by Rashi to the foregoing sentence or word. Square parentheses [ ] contain
commentaries by authorities of the last period of construction of the Gemara,



COPVRICHT, 1903, BT

MICHAEL L. RODKINSON.



TO HIM

WHO IS HIGHLY RESPECTED BY THE PEOPLE FOR HIS GENIUS

AND GENEROSITY THE

HONORABLE JACOB A. CANTOR

PRESIDENT OF THE BOARD OF ALDERMAN, BOROUGH OF MANHATTAN, NEW YORK

THIS VOLUME IS RESPECTFULLY DEDICATED BY THE
EDITOR AND TRANSLATOR

MICHAEL L. RODKINSON



New York

RosH Chodesh Sivan, 5663

(May 27, 1903)



CONCLUDING WORDS

TO THE COMPLETION OF SECTIONS FESTIVAL AND
JURISPRUDENCE.

With the benediction to the Almighty, who prolonged our life
to see the completion of our translation the above two large sec-
tions of the Talmud, we deem it necessary to say a few words con-
cerning the criticisms which have recently appeared, and to
which we are grateful for having called our attention to some
important matters. However, before we will come to the point
we beg to say that we were anxious during the whole time to
see a true criticism to our entire work, pointing out the mistakes
or errors which must be found in the editing as well as in the
translating itself of such a difficult and voluminous work. But
to our knowledge such has not appeared anywhere as yet,
although reviews and notices of different kinds were given in
more than a hundred leading papers in both the old and the
new world. The praises encouraged us but little, and some of
the criticisms did not discourage us at all, for the reason that
both were only phrases, without giving any evidence or impor-
tant facts to which our proper attention should be called. And
we would still be grateful indeed to those who would give such
criticisms in compliance with our wishes, as this would be a
great help to us in the continuation of the translation of the four
remaining sections, which may take about twelve volumes or so
more. Now to the point. There was a criticism in the " Open
Court " of Chicago, Vol. XVI., pp. 425-427, accusing us that we
have omitted the discussion of some sages concerning " evan-
gelium." How it should be written J^^Il'^jy or J?7;i"J1^5>*

*The meaning of the first two words is one and the same. And the aclph
here is the same as the ayen. The same differ also about the same letters con-
cerning the word "Eidehen," Abuda Zara, p. I. (see foot-note there); hence,
as it is without any importance for the English reader, we have to omit it,
according to our method. But that what was said in the name of Jesus by
Jacob (James) we have translated, although we do not believe that this was
so (see foot-note, ibid. p. 27).

V



vi CONCLUDING WORDS.

and for such an omission he exclaimed that we have no transla-
tion of the whole Talmud.* We have received also some pri-
vate letters from educated people, asking why they do not find
any mention of Jesus of Nazareth. And in answer to the criti-
cism as well as to the many letters we have received, we beg to
give some letters of an editor of a scientific paper of this coun-
try, which we think will throw some light on this matter.

June 1, 1901.
Rev. Michael Rodkinson,

New York City.

Dear Sir: — The receipt of Volume XII. of the Talmud brings back rec-
ollections of a pleasant hour spent with you in my office, and the informa-
tion which you so kindly gave me on several very obscure points. Perhaps
you will pardon a personal letter of inquiry on a point or two in " Sabbath "
that have especially interested me.

You will remember where the subject is discussed as to whether it was
lawful to rescue books from the flames, the point turning especially, as I
read it, that on the one hand the books of unbelievers should be allowed to
perish, while on the other hand, these same books also contain the Sacred
Name.

R. Abuha is asked if the books of the Be Abliidon should be saved, and
gives an equivocal reply. It is stated that Rabh went to neither the Be
Abhidon nor the Be Nitzrephe. Samuel went to the Abhidon, and Mar
Bar Joseph " was of their society."

Your note on the passage leaves it conjectural who the people were.
To me it seems altogether likely that they were Christian sects (possibly
Jewish Christians and Gentile Christians). I should infer this because, first,
R. Tarphon's statement immediately precedes it, and Christian tradition at
least connects him with disputes with Christians. Second, the story of
Ema Shalom and her brother Gamaliel II., and the philosopher and judge
follows it. It seems to me that there are at least three implied quotations
in this story from Matthew's Gospel or some other Christian document:
" Let your light shine," " I came not to destroy but fulfill the law." and the
statement about son and daughter inheriting alike.

Do Hebrew scholars think that Christians are indicated by Be Abhidon
and Be Nitzrephe? And if so, how is the fact explained that Samuel went
to one of them, imless it be that Samuel is Saul (Paul), and how could
Mar Bar Joseph be of their society?

It seems to me that I find a number of places where Christian usages or



*Some one has called our attention to this article being in the public
library about a year ago and we only glanced at it for lack of time. And for
the same reason we could not have the original before us when we are writ-
ing our answer. By the way, we like to say that there is published a booklet,
" Chasronoth-Hashas," containing the omission made by the censor about
Jesus and his disciples, to which we do not pay any attention, as its con-
tents are nonsense and we are sure that these were not said or written by the
talmudic scholars. We also possess a letter from the late lamented Dr.
Mielziner, who agrees with us on this point.



CONCLUDING WORDS. vii

doctrines are referred to, and I wish I were informed as to the names
and other indications which would show this. If you could give me some
light, without trespassing too much on your time, I would be very grateful
indeed.

June 12, 1901.

My Dear Sir: Your kind favor of the 9th at hand and carefully noted. I
assume that you have good and sufificient reasons for your hesitation in such
a matter, although they may not be apparent to me. Therefore it only
remains for me to assure you as strongly as I know how, that the informa-
tion I seek is only for myself, that it will not be published, that it will not
be quoted even in conversation as your opinion.

I simply wish to read understandingly the fine work you are placing
before English readers; I want to get into the atmosphere of the times as
much as possible. Judaism and Christianity must have touched elbows a
good deal in the first three centuries, and there must be some evidences of
it in the Talmud to those who can read between the lines. I think I can
see references. For instance, were there Saducees after the final over-
throw, and is not the term, at least occasionally, applied to Christians?

My own conviction, which of course, is based on very superficial knowl-
edge mostly gleaned form the early Christian Fathers, is that at first, the
line of demarcation between the Jewish Christians and the Jews was not
so strong as it became afterwards. But at any rate, there must be more
references to them than appear on the surface, it seems to me, and that is
what I want to know. But I have no theory to vindicate and seek the
knowledge only for myself.

July 2. 1901.
My Dear Sir: I wish to acknowledge the receipt of your very kind and
instructive letter of two weeks ago. It covers substantially the points I
wished to know, and saved me much research that night in the end prove
barren of results. I shall remember your kindness. Again thanking you,
I am.

And to these letters we may add a paragraph of Tract Sab-
bath, p. 119. " R. Aqiba said: ' The wood-gatherer was Zeloph-
chad.* To which R. Jehudah b. Bathyra exclaimed: 'Aqiba!
Whether your statement be true or false, you will have to an-
swer for it at the time of the divine judgment; for if it be true,
you disclosed the name of the man whom the Scriptures direct
to shield, and thus you brought him unto infamy, and if it
be false, you slandered a man who was upright,' " etc. (See
there.) And this rule we adopted while engaged in this transla-
tion — namely, not to give hypotheses to the reader, as there is
not one line in the whole Mishna which speaks clearly of Jesus
and his beliefs. In our book on "Phylacteries" we have
alluded to the reason why the editor of the Mishna did so.
And the same reason prevented us from interpreting passages
or paragraphs which seemed to us to treat about Jesus and his



viii CONCLUDING WORDS.

followers, as after all these are only hypotheses, and we do not
like to throw our suppositions in a translation which ought to be
more or less authentic. This is all that we can say in answer to
the " Open Court."

There has appeared in the " Baltimore Sun," April 17, 1903,
a notice which, in the main, is very flattering, but gives also
some criticisms that are of interest, and correct from the
standpoint of the writer. They concern the remarks sub
3 and 4 of the " Explanatory Remarks" published in each
volume on the other side of the title-page. Concerning the
fourth he says: " There are many who would be glad to verify
references who may not have a copy of the new Hebrew
text, or unable to use it, if they had it." Concerning the third
remark he says: " This seems unfortunate. The alternative
interpretation is often of very considerable value, and may be
used for historical purposes even if not so important theologic-
ally." To this we may say that we were very careful when
omitting the first version, and where we found it important we
translated both, as the reader will find in our Talmud in many
places, " If you wish, it may be said so, and if you wish, it may
be said so and so." And we did not fail even to translate a
third " if you wish " when we saw that they all were of import-
ance. In general, however, only the last versions are of great
account, and the decisions of the post-talmudical rabbis were
only in accordance with those. And only they are the guides
of the Schul'han Arush (Jewish Code).

Concerning the fourth we may confess that the critic is per-
fectly right in his contention. However, it is not our fault but
that of the circumstances which deceived us in the beginning of
our undertaking. We previously thought that we would find
subscribers for the Hebrew text also, and so give the Hebrew
with the English together, and then there would have certainly
been no need of separately marking the pages of the text. Un-
fortunately, there was ho demand for the text at all, so that we
were unable to furnish it with the translation, and in reality,
for the general English reader who is not able to read Hebrew
the page of the text is immaterial. And for the Hebrew stu-
dents, who are very few, we could not afford to go to such ex-
pense, as a separate column for each page would be necessary
for this purpose, for such could not be inserted in the text even
in parentheses.

Concerning the last Tract Horioth, which speaks of sacrifices



CONCLUDING WORDS. ix

and offerings only, we are at a loss to understand why it was in-
serted in the section Jurisprudence, unless the reason be the treat-
ment of whether the expenses of the offerings must be carried
by the judges of the court themselves or by the treasury of the
congregation, which may belong to the category of damages.
However, the whole tract treats almost of one and the same
point, so that we could not give the contents of each chapter
separately, and confined ourselves by giving the synopsis of the
beginning of each Mishna and some important matters from the
Gemara of the last.

M. L. R.
New York, May 25, 1903.



CONTENTS.



PAGE

Synopsis of Subjects of Tract Maccoth (Stripes) . . vii

CHAPTER I.

Rules and Regulations concerning Collusive Wit-
nesses IN both Criminal and Civil Cases, and the
Application thereto of Corporeal and other Pun-
ishments . I



CHAPTER n.

Rules and Regulations concerning Unintentional
Murder and Exile. Which is the Punishment there-
for. — Who is and Who is not Subject to Exile. —
The Cities of Exile and their Preparations. — The
Redeeming of the Exiled by the Death of the
High-priest



CHAPTER HI.

Who is Subject to the Punishment by Stripes. — The
Details of the Procedure regarding the Execu-
tion thereof. — What Circumstances Free the Cul-
prit therefrom. — The Respective Duties of the
Three Judges Who must Witness the Execution . 35



SYNOPSIS OF SUBJECTS

OF

TRACT MACCOTH (STRIPES)



CHAPTER I.



MiSHNA /. TO X. How should witnesses be made collusive ? There are
another sort of witnesses who are not subject to the punishment of collusive-
ness but who are to suffer stripes instead. Where do we find a hint in the
Scripture that collusive witnesses shall be punished with stripes? There are
four points concerning collusive witnesses, etc. And they are not sold as
Hebrew slaves. As it reads : " He shall be sold for his theft, but not for
his collusiveness." A collusive witness pays his share. What does this
mean ? We testify that so and so has divorced his wife and has not paid the
amount mentioned in her marriage contract, etc. We testify that so and so
owes to his neighbor a thousand zuz, etc. If one says I will make you a loan
with the stipulation that the Sabbathic year shall not release me, it neverthe-
less releases. If one loans money to his neighbor without a fixed term of
return, he has no right to demand it before the elapse of thirty days. We
testify that so and so owes 200 zuz to his neighbor, and they were found
collusive, etc. To a negative commandment that does not contain manual
labor, stripes does not apply. The fine of money may be divided into two
or three shares ; however, this is not to be done with stripes. Witnesses
cannot be made collusive unless the falsehood lies in their bodies. A woman
once brought witnesses, and they were found false. She then brought
another party, who were also found false ; she then brought another party,
etc. Because she is suspicious should all Israel be suspected of testifying
falsely ? Collusive witnesses are not to be killed unless the sentence of capital
punishment for the defendant is rendered. There is no punishment on the
ground of a fortiori conclusions. May I not live to see the consolation of
our nation, if I have not killed a collusive witness for the purpose of remov-
ing from the mind of the saducier, etc. The verse punishes one. an accom-
plice who conjoins himself to transgressors with the same punishment, etc.
And we may learn from this ; that so much the more will he who conjoins
himself to those who are engaged in meritorious acts, be rewarded, etc.
There is no capital punishment, unless two witnesses have warned tliis cul-
prit. If both of the witnesses have seen him who warned them, they are con-
sidered conjoined. The court of Sanhedrin is to be established in Palestine
as well as in the countries outside of it. In the large cities bu' not i-i the
small ones, 1-14



xiv SYNOPSIS OF SUBJECTS.

CHAPTER II.

MiSHNA /. TO V. The following are exiled, he who kills a person unin-
tentionally. The act of one who thought that such is allowed is not to be
considered an accident, but almost intentional. If one has climbed a ladder
and the step under him broke and killed, one Boraitha declares him guilty,
etc. If the iron of a hatchet slipped off and killed. One threw a lump of
brittle stone at a date tree, and the dates fell off and killed (a child). What
is considered second force according to Rabbi ? If one throws a stone in
a public ground and it kills, he is to be exiled. The punishment of exile
attaches but to a private set. Is hewing wood always considered a private
affair ? All kinds of human beings are exiled when they killed by accident
an Israelite. A father is exiled if he killed his son accidentally. A heathen
or a slave is to be exiled or punished with stripes through an Israelite and
vice versa. A stranger or an idolater who has killed even unintentionally is
put to death. Only then when, thinking that such is allowed ; "For he is a
prophet." How is this to be understood ? Because he is a prophet she has
to be returned, but if a layman, she would not, etc. Exile does not apply to
a blind one. An enemy is not exiled (as such a punishment does not suffice).
If the rope to which the man's instrument was attached, broke — then he is
exiled ; but if the instrument slips out of his hand, exile is not sufficient.
Whither are they to be exiled ? To the cities of refuge, etc. They were
also obliged to prepare roads from one city to the other. Formerly all
murderers, accidental as well as intentional, used to flee to the cities of refuge,
etc. " Giliad is become a city of workers of wickedness," etc. What does
this expression mean ? The city of refuge must neither be too large nor too
small, but middle-sized ones. Be situated in places where there is water and
markets. If a disciple is exiled, his master is exiled with him ; because the
expression, "and live," means you shall supply him with the sources of
moral life. He who loves the abundance of scholars possesses the fruit of
knowledge. I learned much from my masters, more, however, from my col-
leagues, and still more from my disciples. The Holy One, blessed be He,
appoints them into one inn, and he who had killed intentionally is placed
under a ladder, while the other, who killed unintentionally, descends the
steps, falls and kills him. According to one he wrote only the eight verses,

which begin with. " And Moses died," etc., 14-28

MiSHNA V/. TO X. There is no difference between the high priests who
were anointed with the holy oil, etc. Therefore the mothers of the priests
used to support the murderers with food and clothes, etc. It is counted as
a sin to the priest who should pray that no accident might happen in that
generation. If a sage has put some one under the ban conditionally, etc.
The forty years during which Israel was in the desert, the remains of Judah
were dismembered in his coffin until Moses prayed for him, etc. If after
the decision has been rendered, the high priest dies, he is not exiled, etc.
If it happens that a murderer goes outside of the limit, etc. What has the
high priest done that the murderer's fate should depend upon his death ?
Joab erred twice in so acting : (a) he thought that the horns of the altar
protect, etc. The cities of refuge are not given for cemeteries. If one
killed accidentally in the city of refuge, he is to be exiled, etc. If a murderer



SYNOPSIS OF SUBJECTS. xv

was exiled, the townsmen like to honor him, he has to say to them : " I am
a murderer," 28-34.

CHAPTER III.

MiSHNA /. TO V. To the following- stripes apply : Crimes under the
category of Korath, as well as under that of capital punishment, are also
punished with stripes if they were so warned. To a negative command,
which is preceded by a positive one, stripes apply. The culprit does not
get stripes unless he abolishes the succeeding positive command. R.
Simeon b. Lakish, however, differs, and says : He is free from stripes only
when he has fulfilled the succeeding one. He who took the mother-bird
with her children gets, according to R. Jehudah, stripes. It happened with
a children teacher who struck too much the children, and R. A'ha excom-
municated him ; Rabbma, however, returned him because he could not find
as good a teacher. Stripes also apply to him who partook of the first fruit
before the ceremony of reading was performed. If a positive succeeds a
negative, no stripes apply. A stranger who had consumed sin and trans-
gression offerings before their blood was sprinkled is free from any punish-
ment. Concerning the first fruit, placing it in the temple is the main thing,
and not the ceremony of reading. The culpability for second tithe arises
only after it has seen the face of the wall of Jerusalem. He who makes a
baldness in the hair of his head, or rounds it, etc., is liable. The culpability
arises only, then, when he took it off with a razor. What should be the size
of the bald spot which would make him culpable? If one made an incision
with an instrument he is culpable. For dead he is culpable at all courts
whether by hand or instrument. The culpability for etching-in arises only
when he has done both, wrote and etched-in with dye, etc. A Nazarite who
was drinking wine the whole day is culpable only for one negative. There
is an instance that one may plough only one bed and shall be culpable for
eight negatives. The number of stripes is forty less one, . . 34-47.

MiSHNA VI.-IX. The examination as to the number of stripes he can
receive and remain alive must be such that can be equally divided by three.
If one commits a sin to which two negatives apply, etc. How is the punish-
ment with stripes to be performed ? The striker strikes him with one hand
so that the strokes shall become weaker. If, after he has been tied, he suc-
ceeds to run away from the Court, he is free. As he was already disgraced,
he is not taken to be disgraced again. The Lord wanted to make Israel
blissful and therefore he multiplied to them his commands. At three places
the Holy Spirit appeared. At the court of Shem, etc. Six hundred and
thirteen commands were said to Moses, etc. Isaiah reduced them to six.
Michah came and reduced them to three. Isaiah (the second) again reduced
them to two. "Keep ye justice and do equity." Amos reduced them to
one. "Seek ye for me, and ye shall live," 47-56.

Appendix.

He who speaks ill of his neighbor, he who listens to such evil-speak-
ing, finally, he who bears false testimony deserves to be thrown to the
dogs, 47-56.



TRACT MACCOTH (STRIPES).

" The Sanhedrin who executes a person once in seven years, is considered perni-
cious. R. Eliezar b. Azariach said : Even one who does so once in seventy years is
considered such. Both R. Tarphon and R. Aqiba said : If we were among the
Sanhedrin, a death sentence would never occur." (Mishna X.)



CHAPTER I.



RULES AND REGULATIONS CONCERNING COLLUSIVE WITNESSES IN
BOTH CRIMINAL AND CIVIL CASES, AND THE APPLICATION
THERETO OF CORPOREAL AND OTHER PUNISHMENTS.

MISHNA /. : How should witnesses be made collusive (so
that they should be punished)? If, e.g., they testify that so and
SO (who is a priest) is a son of a divorced woman (whom his
father had illegally married, wherefore he lost his priesthood), the
court has not to decide that the witness who has falsely testified
shall be regarded such (and shall lose his priesthood if he is a
priest), but he should be punished with forty stripes; likewise
if one testifies that so and so is to be exiled for an unintentional
murder, the court has not to decide that he, the witness, be
exiled for false witnessing, but he is punished with forty
stripes.

GEMARA: How should the text of the Mishna be under-
stood? It states, " how should witnesses be made collusive,"
and according to the illustration hereafter adduced it ought to
be: How should the witnesses not be made collusive (as the
punishment of a collusive witness is according to the Scripture
that the same which is to be inflicted upon the defendant if the
accusation prove true, and it states that such a punishment does


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Online LibraryMichael L. (Michael Levi) RodkinsonNew edition of the Babylonian Talmud; original text, edited, corrected, formulated and translated into English (Volume 17) → online text (page 1 of 20)