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Babylonian Talmud: Tractate Sanhedrin

Folio 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

     

Dilling Exhibit 57
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    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

     

Dilling Exhibit 58
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    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],

Original footnotes renumbered. See Structure of the Talmud Files
  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.
  15. V. n. 8.
  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. [H]: 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. [H]. Lev. XXIV, 15: Any man ([H]) that curseth his God shall bear his sin. Ibid. XVIII, 6: No man ([H]) 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.

Sanhedrin 57b

he is executed for his death.1

     

Dilling discussion of highlighted text
    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,

Original footnotes renumbered. See Structure of the Talmud Files
  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.