Babylonian Talmud: Tractate Sanhedrin

Folio 85a

A problem was propounded to R. Shesheth. May one be appointed an agent [by Beth din] to flagellate and curse his father?²  — He replied, Who then permitted even a stranger to do this, but that the Divine honour overrides [other prohibitions]: so here too, the Divine honour overrides [the prohibition against smiting and cursing one's parents].³  An objection was raised: If one, whom it is a positive command to smite, may nevertheless not be smitten; how much more so, may one, whom it is not a positive command to smite, not be smitten. Now, do not both clauses relate to smiting as a precept, but that one treats of a son, the other of a stranger?⁴  — No. In both clauses no distinction is drawn between a son and a stranger, yet there is no difficulty. The one treats of smiting as a precept, the other when not. And it is thus to be interpreted: If when a precept is involved, i.e., when it is a positive command to smite [sc. a person under sentence of flagellation], it is nevertheless a command not to smite [unnecessarily, i.e., with more than the prescribed number of lashes, viz., forty]; then when no positive command is involved, viz., when one is not to be flagellated, one is surely commanded not to smite unnecessarily.⁵  Come and hear: If one was going forth to execution, and his son came and smote him and cursed him, he is liable; if a stranger did this, he is exempt. Now we pondered thereon, What is the difference between a son and a stranger? And R. Hisda answered: This refers to one who is being impelled forth, but holds back?⁶  — R. Shesheth maintains that it refers to one who is not urged to go forth. If so, a stranger too [should be punished for beating him]? — As far as a stranger is concerned, he is already a dead man.⁷  But did not R. Shesheth say: If one insulted a sleeping person, and he died [in his sleep], he is nevertheless liable [to punishment for same]?⁸  — The reference here is to a blow which inflicted an injury less than a perutah in value. But did not R. Ammi say in R. Johanan's name: [Even] if one smote his neighbour with a blow inflicting less than a perutah's worth of damage, he is punished with lashes? — By 'exempt', non-liability to monetary compensation is meant. It follows then that a son is liable to monetary compensation!⁹  But it must therefore mean, [he is liable] according to the law pertaining to him.¹⁰  If so [a stranger too is exempt from] the law pertaining to him [for smiting his neighbour, viz., lashes].¹¹  But this is the reason why a stranger is exempt, because the Writ saith, Thou shalt not curse a prince among thy people:¹²  meaning, [only] when he acts as is fitting for thy people.¹³  This is well as far as cursing is concerned: but whence do we know the same of smiting? — Because we compare smiting with cursing. If so, should not the same apply to his son? — Even as R. Phineas said [elsewhere]: This refers to one who had repented. If so, even a stranger [should be liable]? — R. Mari answered, 'among thy people' implies 'abiding among thy people'.¹⁴  If so, should not the same apply to his son?

1. E.g., the carrying out of a dead body on its bier from a private to a public domain. Now, this is not done because the dead body is wanted there, but because it is not wanted in the private domain. So here too, when a thorn is extracted and a wound made, even intentionally, no punishment is involved, because the purpose of the work is extraction, not wounding.
2. I.e., if his father had to be thus punished or banned, when a curse was pronounced (for the latter).
3. It is an offence to curse or smite any Jew; nevertheless, it is permitted in God's honour, i.e., as a punishment for transgressing the Divine law: hence it is likewise permitted to a son.
4. The meaning then will be as follows: If one, whom it is a positive command to smite — i.e., who is under sentence of flagellation — may nevertheless not be smitten by his son as the agent appointed to execute the sentence, how much more so may one, whom it is not a positive command to smite — i.e., who is not under sentence of flagellation — not be smitten by his son. Thus, by an ad majus reasoning, a formal prohibition is deduced against a son's striking his father. For Ex. XXI, 15 merely prescribes the punishment; but it is either stated or deduced from elsewhere. On this interpretation, of course, R. Shesheth's ruling is contradicted.
5. Hence this teaches a prohibition against smiting anyone unless sentenced by Beth din.
6. Hence this teaches that his son, as an agent of Beth din, may not smite him to drive him forward, and is punished for so doing, which is in contradiction to R. Shesheth.
7. But this reasoning obviously cannot apply to his son, who is bound to honour him even after death, the verse excluding a transgressor from this filial duty being at this stage of the discussion unknown.
8. Though he was not even aware of it. Surely then smiting a condemned man comes under the same category.
9. But that is impossible, since the injury is less than a perutah's worth.
10. I.e., the law pertaining to the smiting of a father by his son, viz., death.
11. Thus the question remains, what is the difference between his son and a stranger?
12. Ex. XXII, 27.
13. But to transgress is not 'fitting for thy people': hence the prohibition does not apply to such a case.
14. But when one is sentenced to death, he is no longer so.

MISHNAH. HE WHO STRIKES HIS FATHER OR HIS MOTHER IS LIABLE ONLY IF HE WOUNDS THEM. IN THIS RESPECT, CURSING IS MORE STRINGENT THAN SMITING, FOR, HE WHO CURSES [HIS PARENTS] AFTER DEATH IS LIABLE, WHILST HE WHO SMITES THEM AFTER DEATH IS NOT.

GEMARA. Our Rabbis taught: His father or his mother he hath cursed:³  [his blood shall be upon him]. This means, even after death.⁴  For I would think, since he is liable for smiting and for cursing; so also for cursing. Moreover, an ad majus reasoning [would seem to prove the contrary]: If for smiting, where [a parent] 'not of thy people' is assimilated to one 'of thy people',⁵  there is nevertheless no punishment for doing so after his death; then cursing, where one 'not of thy people' is assimilated to 'of thy people', is surely not punishable if done after death! Therefore the Writ saith, He hath cursed his father or his mother. Now this accords with R. Jonathan, to whom the verse, His father or his mother, he hath cursed, is superfluous; but on R. Joshiah's view, what can be said? For it has been taught: For [ish ish] any man⁶  [that curseth his father or his mother shall surely be put to death].⁷  Now, Scripture could have said, A man [ish]; what is taught by 'any man' ['ish ish']? The inclusion of a daughter, a tumtum, and a hermaphrodite [as being subject to this law]. 'That curseth his father and his mother': from this I know only [that he is punished for cursing] his father and his mother: whence do I know [the same] if he cursed his father without his mother or his mother without his father? — From the passage, His father and his mother he hath cursed, implying, a man that cursed his father, a man that cursed his mother. This is R. Joshiah's opinion. R. Jonathan said: The [beginning of the] verse alone implies either the two together or each separately, unless the verse had explicitly stated 'together'.⁸  Whence then does he [R. Joshiah] learn [the law under discussion]?⁹  — He derives it from the verse, And he that curseth his father or his mother shall surely put to death.¹⁰  And the other?¹¹  — He utilises it to include a daughter, a tumtum, and a hermaphrodite. But why not derive this from 'any man' [ish ish]? — The Torah employed human speech.¹²  [Now, reverting to the Mishnah:] Should it not [also] teach: smiting is a graver offence than cursing, since with respect to the smiting 'not of thy people' is as 'of thy people', which is not the case with respect to cursing?¹³  — The [Tanna of the Mishnah] maintains that smiting is assimilated to cursing.¹⁴

Shall we say that these Tannaim¹⁵  differ on the same lines as the following? Viz., One Baraitha was taught: As for a Cuthean, you are enjoined against smiting him, but not against cursing him. But another [Baraitha] taught: You are enjoined neither against smiting nor cursing him. Now, the hypothesis is that all agree that the Cutheans were true proselytes:¹⁶  hence presumably the grounds of their dispute are these. One Master holds that smiting is likened to cursing, and the other Master that it is not!¹⁷  — No! All agree that smiting is not likened to cursing, but this is the cause of their dispute: — The one Master maintains, Cutheans are true proselytes;¹⁸  the other Master holds that they are [sham] proselytes [driven to conversion through fear of] lions.¹⁹  If so, how can the [Baraitha] further state, But his ox is as one belonging to an Israelite?²⁰  Hence this proves that the dispute is in respect of the analogy.²¹  This proves it.

MISHNAH. 'HE WHO KIDNAPS A JEW'²²  INCURS NO LIABILITY UNLESS HE BRINGS HIM INTO HIS OWN DOMAIN. R. JUDAH SAID: UNLESS HE BRINGS HIM INTO HIS OWN DOMAIN AND PUTS HIM TO SERVICE. FOR IT IS WRITTEN, [IF A MAN BE FOUND STEALING ANY OF HIS BRETHREN OF THE CHILDREN OF ISRAEL,] AND PUT HIM TO SERVICE, AND SELL HIM.²³  IF HE ABDUCTS HIS OWN SON. — R. ISHMAEL THE SON OF R. JOHANAN B. BEROKA DECLARED HIM LIABLE, BUT THE SAGES EXEMPTED HIM. IF HE KIDNAPPED A SEMI-SLAVE AND SEMI-FREEMAN,²⁴  — R. JUDAH DECLARES HIM LIABLE, BUT THE SAGES ACQUIT [HIM].

GEMARA. But does not the first Tanna require putting to service [as a condition of punishment]?²⁵  — R. Abba the son of Raba said: They differ in respect of service worth less than a perutah.²⁶

R. Jeremiah propounded: What if one kidnapped and sold a person asleep? What if one sold a [pregnant] woman for the expected child?²⁷  Is this a sort of service or not? But, [surely,] can this not be solved from the fact that there is no service at all? — It is necessary [to propound this] only if he [the kidnapper] leaned upon the sleeper, or, in the case of a [pregnant] woman, if she was placed in front of a wind:²⁸  now, does this constitute service or not? This problem remains unsolved.

Our Rabbis taught: If a man be found stealing any of his brethren of the children of Israel. From this I know [the law] only if a man abducted: whence do I know it of a woman? From the verse And one that stealeth a man.²⁹  From [these verses] I know [the law] only if a man kidnapped a man or a woman,³⁰  and of a woman who abducted a man.³¹  Whence do I know it if a woman abducted a woman? From the verse, Then that thief shall die:³²  implying, in all cases [of theft].³³

Another [Baraitha] taught: If a man be found stealing any of his brethren: whether a man, woman, proselyte, manumitted slave or minor be abducted, he is liable. If he stole him, but did not sell him, or if he sold him, but he is still in his [sc. the victim's] own house, he is exempt. If he sold him to his [sc. the victim's] father, brother, or to one of his relations, he is liable. He who steals slaves is exempt.

1. For if one curses his father even after death he is liable. So here too (v. Rashi).
2. Deut. XIII, 9.
3. Lev. XX, 9.
4. It is so interpreted because it is superfluous, since the beginning of the verse states, For everyone that curseth his father or his mother shall surely be put to death.
5. V. supra. Because in Ex. XXI, 15, dealing with this, no mention is made that the parents must be 'of thy people'.
6. [H] Lit., 'A man, a man',
7. Lev. XX, 9.
8. V. supra 66a for notes.
9. Since on his view it is not superfluous.
10. Ex. XXI, 17, which is superfluous in view of Lev. XX, 9.
11. R. Jonathan: how does he interpret this verse?
12. In which this repetition is common. Hence it has no special significance.
13. The difficulty is this: since the Mishnah teaches an aspect of the greater severity of cursing, it should also state the reverse.
14. So that they are alike in this respect.
15. Viz., those of the Mishnah and of the Baraitha.
16. Originally, though in the course of time they had deteriorated.
17. Hence, on the former view, one is not forbidden to smite him, since he is not 'of thy people' as taught in the second Baraitha, but on the latter, no distinction is drawn between him and an Israelite — as taught in the first Baraitha.
18. Therefore they are as Jews.
19. V. II Kings XVII, 24-29. Therefore they are not Jews at all.
20. I.e., if his ox gored or was gored, the same law applies to it as to one of Jewish ownership, whereas an ox of non-Jewish ownership is differently treated, v. B.K. 38a. This proves that the Cuthean is regarded as a real Jew.
21. Whether 'smiting' is assimilated to 'cursing'.
22. Lit., 'a soul of Israel'.
23. Deut. XXIV, 7.
24. E.g., if he had belonged to two masters, one of whom had manumitted him.
25. Surely he must, since Scripture explicitly states it.
26. The first Tanna maintains that even the smallest service renders the kidnapper liable, and therefore does not mention it, whilst R. Judah holds that the service most be worth at least a perutah.
27. I.e., only the child, when born, but not the woman.
28. To act as a shield; since the stouter she is, the more effectively is this done, the fetus is actually put to use.
29. Ex. XXI, 16. The subject being unspecified, it applies to both sexes, although the verb is masculine.
30. Since the object of 'steal' in Deut. XXIV, 7, where the kidnapper is a man, is nefesh, a soul, applicable to both man and woman.
31. For Ex. XXI, 16 speaks of 'one' stealing a man.
32. Deut. Ibid.
33. Since thief is superfluous, being understood from the context.