A. Killing a Gentile

We learn from the Mechilta that a Jew who killed a Gentile with intent is not put to death by the Beit Din, as he would be had he killed a Jew. The halacha is the same concerning a ger toshav, as is explicitly stated in the Mechilta of Rabbi Shimon bar Yochai on the above mentioned verse: "'Upon his neighbor' -- with the exception of others, 'his neighbor' -- with the exception of the ger toshav. Perhaps I ought to exclude the others, for they do not have commandments similar to the Jews, yet I ought not exclude the ger toshav who has commandments similar to the Jews. It is taught: 'his neighbor' -- with the exception of the ger toshav." Likewise it is written in Sifri on the portion of Masaei, paragraph 160, see there, and in Sifri Zuta on the portion of Masaei, 23: "Upon his neighbor -- with the exception of the ger toshav."4

Similarly we learn in the Mishnah, Sanhedrin chapter 9, mishnah 2: "One who intended to kill an animal [and instead] killed a man, [intended] to kill a Gentile [and instead] killed a Jew, [intended to kill] a fetus [and instead] killed a child who is able to exist outside the womb, [he is] exempt." These, too, are the words of Maimonides in The Laws of a Murderer and Saving Life, chapter 2, halachas 10 and 11 (in manuscripts it appears as a single halacha): "One who kills a Jew or kills a Cannanite slave is put to death for this. And if he killed unintentionally, [he is] exiled. A Jew who kills a ger toshav is not put to death for this by a Beit Din, as it is said: 'But if a man comes upon his neighbor with intent.' And it need not be said that he is not put to death for [the killing of] a Gentile. The same for one who kills the slave of another, or kills his own slave -- he is put to death for this, for the slave has already accepted upon himself commandments and is [therefore] included in the inheritance of G-d," and so the Tosaphot has written in the Talmud, Tractate Makkot 9a, s.v. k'savur.

In contrast, a ger toshav (and all the more so a Gentile) who killed a Jew, even unintentionally, is put to death, as we learned in chapter 2 of Tractate Makkot, mishnah 3, and in the Gemara there (9a), and as Maimonides wrote in chapter 5 of The Laws of a Murderer and Protecting Life, halacha 4: "A ger toshav who killed a Jew without intent -- even though he did it unintentionally, he is put to death."

However, it must be emphasized that one cannot take this as permission to kill a Gentile. In the aforementioned Mechilta it clearly states the opposite -- "his [one who kills a Gentile] judgement is in the hands of Heaven" -- so it is forbidden. See further in Tosephta, Avodah Zarah chapter 8, halacha 5 (Zukermandel edition, in the Vilna edition it is chapter 9, halacha 4): "On the spilling of blood, how? ...a Jew [who killed a] Gentile is exempt," for one who kills is exempt [from punishment by Beit Din], however [this action is] prohibited, and in Sanhendrin 57a on this beraitha it is stated: "There, how should we learn the bereitha, prohibited [for a Gentile to kill a Gentile or a Jew] and permitted [for a Jew to kill a Gentile]? Yet we have learned in a beraitha that Gentiles and shepherds of small cattle are not raised [from the pit] nor lowered [into it]?" -- so there is a prohibition against the killing of a Gentile. However, we have not found in the words of Chazal a definition of the prohibition, and the Rishonim are in dispute on this matter.

The opinion of HaRa'aban is that one who kills a Gentile transgresses the negative commandment of "You shall not murder" and these are his words in the commentary on Bava Kama paragraph 22 (page 74d)⁵: "...'You shall not steal' is similar to 'You shall not murder' and 'You shall not commit adultery'⁶ in that it refers both to Jew and Gentile."

This is not the opinion of Maimonides in the beginning of The Laws of a Murderer and Protecting Life: "One who kills a Jew transgresses a negative commandment as it is stated: ' You shall not murder'."⁷ Maimonides also wrote something similar in Sefer HaMitzvot, negative commandment 289, and Rabbi David HaKochavi restated it in his Sefer HaMitzvot, negative commandment 289. Likewise, it is written in Yere'im paragraph175 (Schiff edition, in other editions paragraph 248): "...and it is called murder only concerning a Jew, as it is written: 'who murders his neighbor' -- the murder of one's neighbor is called murder, but the murder of a Gentile it is not called murder." And in the continuation of his statement: "Subsidiary [prohibition] of murder: not to kill a Gentile, as we learned in the beraitha in Avodah Zarah chapter 2 (page 26a): The Gentiles and shepherds of small cattle are not raised [from the pit] nor lowered [into it]."⁸ According to Maimonides, the Yere'im, and Rabbi David HaKochavi, one who kills a Gentile does not transgress the negative commandment 'you shall not murder.'⁹

1. One who kills a Gentile, and even a ger toshav, is not put to death for this by the Beit Din, even if he kills him with intent. This is clearly stated in the Torah and in the words of Chazal.
2. In the opinion of HaRa'aban, one who kills a Gentile transgresses the negative commandment of "You shall not murder," and in the opinion of Maimonides, the Yeare'im, and Rabbi David HaKochavi, the murder of a Gentile is not included in this negative commandment. However, according to all opinions there exists a prohibition in this matter, as is clear from the words of Chazal.
So the Torah differentiates between a Jew and a Gentile with regards to the killing of a man.

Regarding the subject of saving a life, too, the Torah differentiates between a Jew and a Gentile. We learn in chapter 8 of Tractate Kippurim (Yoma) mishnah 45 (in the Vilna edition mishnah 47): "One upon whom the ruins of a building collapsed and there is doubt whether he is there or not, whether he is alive or dead, whether he is a Jew or a Gentile, we clear off [the rubble]. If they found him alive, they clear off [the rubble], if dead, they leave him there." The Talmud explains on page 85a: "It is needless to say 'there is doubt whether he is alive or dead' if he is a Jew, but even if we are uncertain whether he is a Gentile or a Jew we clear off [the rubble]," and thus wrote Maimonides in chapter 2 of The Laws of the Sabbath, halacha 21 (in the Vilna edition, halacha 20): "If there was a courtyard with both Gentiles and Jews, even one Jew and a thousand Gentiles, and the ruins of a building collapsed upon them, we clear off the rubble from everyone for the sake of the Jew. If one of them moved to another courtyard and it collapsed upon him, we clear [the rubble] off him, for perhaps the one who moved [to the other courtyard] is the Jew and the ones who remained are the Gentiles." Likewise in the Tur and the Shulchan Aruch, Orach Chaim, paragraph 329, section 3.¹⁰

It must be pointed out that a Jew who wanted to engage himself in the saving of the life of a Gentile which involved a transgression of the Sabbath, and did so in front of witnesses and after being warned, is put to death by the Beit Din -- this is self evident.

It is written in the Torah (Deuteronomy 19:15): "One witness shall not rise up against a man for any iniquity, or for any guilt, in !ny sin that he may commit: at the word of two witnesses, or at the word of three witnesses, shall the matter be established." And in the Sifri (Shoftim, paragraph 188) it is written: "Thus far we [learn] it with regards to the capital laws; from where do we learn it concerning monetary laws? It is written, 'for any iniquity.' From where do we learn it concerning [transgression for which one must bring] sacrificial offerings? It is written, 'or for any guilt.' Where do we learn it concerning [transgressions punishable by] lashes [by a Beit Din]? It is written, 'in any sin that he may commit'..." Maimonides wrote similarly in the beginning of chapter 5 of The Laws of Testimony: "No verdict of judgement may be made based on the testimony of one individual, neither in monetary laws nor in capital laws, as is written: 'One witness shall not rise up against a man for an iniquity, or for any guilt'..."

Likewise, one is not put to death by a Beit Din, even if there were several witnesses to his transgression, without forewarning, as we learn in the beginning of chapter 5 of Tractate Sanhedrin: "They [a Beit Din] would investigate them [the witnesses] with seven interrogations: Which week? Which year?...Do you recognize him? Did you warn him?..." and there in the Talmud (Sanhedrin 40b): "Ula said: From where [do we learn] forewarning from the Torah? As it is said: 'And if a man shall take his sister, his father's daughter, or his mother's daughter, and sees her nakedness.' Is this matter contingent on 'seeing?' Rather, until it is made perfectly clear to him [that sexual relations with her are forbidden to him -- Rashi]...In the school of Hizkiya they learn it thus: 'But if a man comes upon his neighbor with intent to slay him with guile' -- [this speaks of a case] when he was forewarned, yet he still came with intent. In the school of Rabbi Ishmael they learn it thus: '...those who find him gathering sticks,' [it is mentioned in the present tense to teach us that] they forewarned him, yet he continued to gather sticks" (see there; in the Jerusalem Talmud there are other ways of learning the requirement of forewarning). Thus Maimonides wrote in the beginning of chapter 12 of The Laws of Sanhedrin: "How are capital cases judged? When witnesses come to the Beit Din...the judges say to them: 'Do you recognize him? Did you forewarn him?' If they say¹¹ 'We do not recognize him,' or 'We are not sure,' or they did not forewarn him, behold, [he] is exempt."

This is the way concerning a Jew. With regards to a Gentile, however, it is taught in Sanhedrin 57b: "Rabbi Jacob bar Acha found it written in an Aggadic book from the school of Rav: a Gentile is put to death by one judge and by one witness, even if he was not forewarned, by testimony of a man and not of a woman, and even of a family member. In the name of Rabbi Ishmael they said: Even for [the killing of] a fetus." Thus Maimonides wrote in chapter 9 of The Laws of Kings and Wars¹² halachas 4 and 14 -- these laws were stated concerning a Gentile, in contrast to the laws concerning a Jew. (A Jew is not put to death for killing a fetus as it is stated in chapter 5 of Tractate Niddah, mishnah 3: "A one-day old baby becomes impure by discharge...and one who kills him is liable..." and see the reason for this in Rashi on Sanhedrin there, s.v. af al ha'ubarin, and in the Gemara, Tractate Niddah there. Similarly, verdicts on capital cases where a Jew is accused may be made only by a Beit Din of twenty three members, as we have learned in Sanhedrin chapter 1, mishnah 4. Likewise regarding the laws of testimony: the testimony of a family member is invalid for a Jew, as it says in Sifri, paragraph 280, on the verse: "Fathers shall not be put to death for children": "...fathers shall not be put to death by the testimony of children, and children shall not be put to death by fathers. When it says 'and children,' it includes family members...").
We clearly see that the Torah is much stricter about the procedures of judgement when dealing with the life of a Jew than it is when dealing with that of a Gentile.

It is written in the Torah: (Exodus 21:35): "If a man's ox injures his neighbor's ox and it dies, they shall sell the live ox and divide the money received for it; they shall also divide the dead animal." In the Mechilta (Tractate Nezikin section 12) it is said: "'A man's ox' -- to exclude the ox of a minor, 'a man's ox' -- to include the ox of others.' His neighbor's ox,' to include [the ox of] a minor, 'his neighbor's' to exclude [the ox] of a Gentile, the ox of a Samaritan, the ox of a ger toshav." And in the Mechilta of Rabbi Shimon bar Yochai it is stated: "'His neighbor's,' -- to exclude others, to exclude the ger toshav. Is it possible no payment will be made to a Gentile or that a Gentile will not pay him? It is taught: 'He shall surely pay,' to include [the payment of] a Gentile and of a ger toshav. Is it possible that they pay for an innocent [ox] half the damage, and for a notorious [ox] full damage? It is taught: 'His neighbors' ox,' the ox of his neighbor is dealt with in such a manner, and not [the ox] of others, concerning whom it is stated: 'He appeared from Mount Paran' (Deuteronomy 33:2), -- [G-d] appeared disfavoring all the inhabitants of the world [in contrast to the Jews]."

Furthermore, there is an explicit mishnah in Tractate Baba Kama 4:3: "An ox of a Jew who injured an ox which was dedicated [to the Temple] or a dedicated ox which injured an ox of a Jew is exempt, as it is written: 'his neighbor's ox' -- and not a dedicated ox. An ox of a Jew who hurt an ox of a Gentile¹³ is exempt. An ox of a Gentile who hurt the ox of a Jew -- whether it is an ox who was harmless before or an ox which has been proven dangerous, [the owner] must pay the full damage." A Jew who causes damage to a Gentile is always exempt, however a Gentile who causes damage to a Jew must pay the full damage in every case. And thus it is in Maimonides, chapter 8 of The Laws of Property Damage, halacha 5, and in the Tur and Shulchan Aruch Choshen Mishpat, beginning of paragraph 406. The distinction between a Jew and a Gentile is clear.¹⁴

It is appropriate to cite the words of Maimonides in his explanation of the mishnah in Bava Kama there: "If there was a legal case between a Jew and a Gentile, then the manner of judging between them is as I will explain: if we [i.e., a Jew] will win under their laws, we judge them according to their laws and say to them: this is your law! If it is better that we judge according to our laws, we judge them according to our laws and say to them: this is our law!¹⁵ And do not find it difficult, and don't be surprised by it, just as one is not surprised about the slaughter of animals even though they have done no harm, for one in whom human characteristics are not complete is not truly a man, and his end purpose is only for 'man' [that is to say, the entire raison d'etre of the Gentiles is only for the benefit of the complete man -- comment by Rabbi Y. Kapach shlita in his edition of Maimonides's Commentary on the Mishnah], and the discussion on this matter requires a separate book."

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⁴See Birkat HaNatziv on Mechilta on the aforementioned section, who proves from the Mechilta Mishpatim parasha 12 that a ger toshav is never included in the term "his neighbor."^{back to text
5}Thus it is in the edition of Rabbi S. Albek OBM. In the edition of Rabbi S.Z. Eirenreich HYD it is in 194d.^{back to text
6}See ibid. in the commentary "Even Shlomo" by Rabbi S.Z. Eirenreich (page 195 section 93), for a discussion of his question that "you shall not commit adultery" is inconceivable concerning the wife of a Gentile.^{back to text
7}Thus is the text in the Rome edition of 5240, and in the edition of Rabbi Shabtai Frankel. See ibid. in Yalkut Shinuei Nuschaot, that it is the wording of all manuscripts and printed editions except for the Vilna-Warsaw edition which was distorted by the Christian censor: "One who kills the soul of a man transgresses a negative commandment as it is stated 'You shall not murder'." This is the source of Rabbi Lichtenstein and Rabbi Amital's mistake when they wrote that according to the so-called opinion of Maimonides one who kills a Gentile transgresses a negative commandment. How surprising it is that well known rabbis rely on sources known for their inaccuracies, and make Halachic decisions according to distortions of a censor.^{back to text
8}It must be noted here that the Halachic arbiters disagree on the meaning of the beriatha in Avodah Zarah which the Yere'im brought here. In the opinion of the Beit Yosef, there is no commandment to lower Gentiles who do not fulfill the seven Noachide commandments into a pit, but if he wants to, he may lower them. This view was restated by the Darkei Moshe and the Shach -- see Yoreh Deah, beginning of paragraph 158. However the Bach and the Taz there, and the Maharshal in his commentary on the SM'G (negative commandment 48), wrote that the phrase "nor lower them" means that it is forbidden to do so, and this view is upheld by the Yere'im here, who brought the beriatha as a proof that it is forbidden to kill a Gentile. This view was also expressed by Maimonides in the beginning of chapter 10 of The Laws of Idolatry: "We do not make a covenant with idol worshippers...and it is forbidden to have mercy on them, as it is stated 'nor show mercy to them.' Therefore, if one sees an idol worshipper perishing or drowning in the river, he should not raise him up. If he sees him being taken to die, he should not save him. However, to actually kill him or to push him into a pit, or some such, is forbidden, for he is not at war with us." Similarly he wrote in The Laws of a Murderer and Protecting Life, chapter 4, halacha 11. This is also the opinion of Rabbeinu Yona in his novellae on Sanhedrin 57a, and in the Meiri there, 57b. (See there in Rabbeinu Yona, that the prohibition of lowering a Gentile who does not fulfill the seven Noachide commandments into a pit is Rabbinic. The Taz wrote similarly in Yorah Deah 158). However, it is possible that the Beit Yosef and the Rama changed their opinions, for in the Shulchan Aruch none of this is mentioned.^{back to text
9}From what the Yere'im we can imply that he learned from the language of the verse he mentioned. In regard to Maimonides, it is possible that he learned from the Mechilta on the verse "You shall not murder": "'You shall not murder' -- why is this stated? Because it says 'One who spills the blood of his fellow man,' -- there it speaks of the punishment; where does it speak of a warning? It is written, 'You shall not murder'." It follows that only by committing a murder punishable by death does one transgress the commandment "you shall not murder."^{back to text
10}In the wording of the Shulchan Aruch printed in the Mishnah Berurah, this section concerning the Gentile is omitted, however in the regular editions of the Shulchan Aruch the section remains, but in an erroneous fashion.^{back to text
11}Thus it appears in the Rome edition. In the Vilna edition: "If he says."^{back to text
12}Thus this section is called in the manuscripts and in the Rome edition, and not "and Their Wars," as it appears in the Vilna edition.^{back to text
13}As an example of what was written in the first footnote, I will point out that in the Vilna edition of the Talmud this mishnah is corrupted -- "Cannanite" is written instead of "Gentile," and in the Vilna edition of the Mishnah the wording is "idolater."^{back to text
14}It must be pointed out that the Meiri there (page 37b of the Gemara) wrote on that issue: "And according to what is said in the Talmud, this law applies only to nations which are not bound by religious ways and ethics, as is said about them in the Talmud 'He [G-d] saw that the Seven Commandments the sons of Noah [Gentiles] accepted upon themselves were not being fulfilled, [therefore] He permitted [not compensating the damage to] their property' wherever the Law would obligate it. As long as they [the Gentiles] fulfill the Seven Commandments they are judged by us as we are judged by them, and we don't show favor to ourselves in legal matters. Consequently, it is needless to say that such is the case regarding nations that are bound by religious ways and ethics." And somewhat similarly, the Maharal wrote in the seventh be'er of the book "Be'er HaGolah" (page 145) that as long as a Gentile is not an idol worshipper the law stated in the mishnah does not apply to him. Likewise it is written in Mirkevet Hamishneh. Rabbi Kook OBM wrote in Iggrot Ra'ayah part one, page 99, that the Halacha in essence follows the Meiri. However, these matters are very bewildering, for in the aforementioned Mechilta it is stated explicitly: "'His neighbor's,' to exclude the ox of... ger toshav," and there is no Gentile who refrains more from idol worship and more strictly fulfills the seven Noahide commandments than a ger toshav. And these are the words of aforementioned halachic arbiters who learned from the Talmud there (page 38a): "They said: 'which ever way you turn -- if 'his neighbor' [is meant] specifically [i.e. a Jew], then a Gentile whose ox injures a Jew's ox is also exempt. And if 'his neighbor' is not [meant] specifically, even a Jew whose ox injures an ox of a Gentile is punishable. Rabbi Abahu answered: "the Scripture says: 'He stood and measured the earth: He beheld, and made the nations tremble' -- He [G-d] saw that the sons of Noah [Gentiles] did not fulfill the seven commandments they accepted upon themselves, so He permitted their property to the Jews. Rabbi Yochanan said from here [this law is learned]: 'He appeared from Mount Paran,' -- from Paran [the giving of the Torah] was the property of the Gentiles permitted to Israel." However, in the Mechilta and in the aforementioned Mechilta of Rabbi Shimon bar Yochai this law is described as a Scriptural decree, and therefore the verses of "and made the nations tremble" and "He appeared" are only parables which are brought to explain why the Torah fined the Gentiles even though they are not included in 'his neighbor,' so that the law could have been that a Gentile does not pay, just as he is not paid, similar to the case of the dedicated ox. Thus the Ran wrote on this matter (page 19 of the pages of the Rif, s.v. V'shel nochri sh'nagach): "According to the Law, the Gentile should also be exempt, however it is a fine that G-d fined them, as it says in the Talmud." Thus we should also understand the above mentioned words of Maimonides. (See the explanation of Rabbi Yonatan of Lunel on the Rif, who at the start of his comment on this issue wrote, "And this is a fine applied by the Sages" -- that is to say, it is a Rabbinic law -- while at the end of his comment he wrote "And G-d knows the hidden matters and the hearts of man, and he punished the Gentiles according to their cruelty and exempted the Jews according to their innocence," signifying that this is the Torah's law. It seems to me it is a copyist's error, that is, at first it had been written v'knas hoo d'kansam hach [hey-kaf which is an abbreviation for hakatoov, or the Scripture] and a copyist erred and wrote chach [chet-kaf, which is an abbreviation for chachamim -- the Sages] and subsequently changed kansam [it -- the Scripture -- fined] to kansu [they -- the Sages -- fined]. Thus it is proven from his comment on the explanation of this issue in the Talmud [not by the Rif] which appears in Shitah Mekubetzet there, s.v. amad v'hetir, and these are his words: "...therefore, the Scripture fines them in order to make them guard their property [so that it causes no damage] -- Rabbi Jonathan OBM." So in his opinion this is the Torah's law.) It is not as some Achronim understood, that this law is Rabbinic, and that according to the Torah the law concerning the Gentiles is the same as the law concerning dedicated objects. Similarly, we find it written in the Meiri on a different matter (on Sanhedrin 57b)... "concerning the spilling of blood... if a Jew kills a Gentile, if the Gentile did not fulfill the Seven Commandments the Jew is exempt...but if they keep the Seven Commandments, they are considered religious people," meaning that if a Jew kills a Gentile who strictly kept the Seven Commandments, he is put to death. This is the opposite of the explanation in the Mechilta of Rabbi Shimon bar Yochai and in the aforementioned Sifri Zuta in regards to the killing of a Gentile, that even if a Jew killed a ger toshav he is not put to death. Therefore we learn that the view of the Meiri and who agree with him is puzzling.^{back to text
15}The source of this is in Bava Kama 113a.^{back to text}