Babylonian Talmud: Tractate Sanhedrin

Folio 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. [H] _ 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.

Sanhedrin 53b

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 for 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 uncover 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 IS GUILTY IN RESPECT OF HER BOTH DURING HIS SON'S LIFETIME AND AFTER HIS 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 case of one's mother who is also the father's wife] since she 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 who 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 definition 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?
15. Ibid.
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.