THE JEWISH ENCYCLOPEDIA VOL. V Gentile (continued) [page 619] As a rule the Talmud, especially the Mishnah, speaks of the Gentiles who dwelt in Palestine under the Jewish government, either as idolaters or as domiciled aliens (“ger toshab”), bound to observe the seven moral commandments given to Noah’s descendants: namely, against (1) idolatry, (2) incest, (3) homicide, (4) robbery, (5) eating limbs of live animals, (6) castration, and (7) the mixing of breeds (Sanh. 56b); and having their own judges in every district and town like the Israelites (ib.), the Gentiles outside of Palestine were not considered strict idolaters, but blind followers in the path of their ancestors (Hul. 13b).
The seven nations in the
Holy Land were to be exterminated for fear they might teach the Israelite conquerors idolatry and immoral
practices (Deut. vii. 1-6, xviii. 9-14, xx. 16-18); but in spite of the strenuous efforts of Joshua and other
leaders the Israelites could not drive them out of the Promised Land (Josh. xiii. 1-6). Having in view the
curbing of assimilation and the protection of the Jewish state and society, the legislators, men of the Great
Assembly, adopted stringent measures against these Gentiles. These laws were collected and incorporated in the
Mishnah, and were interpreted in the Gemara of the Jerusalem and Babylonian Talmuds. The restrictive
regulations may be classified as having been enacted for the following reasons: (1) to exalt
monotheism, and Israel as a nation; (2) to combat and outlaw barbarism; (3) to overcome the
unreliability of the Gentile; and (4) to counteract Gentile laws not in harmony with the humanitarian
laws of the Jews.
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1. The Pharisees, interpreting the spirit of the Law, and acting under the elastic rule that “there is a time to serve the Lord by relaxing his law” (Ps. cxix. 126, Hebr.; Yoma 69a), permitted the desecration of the Sabbath in besieging a Gentile city “until it be subdued” (Deut. xx. 20), in accordance with Shammai’s interpretation (Shab. 19a). This definition was not new, as already the Maccabeans had taken advantage of it in fighting the enemy unceasingly, putting aside the observance of the Sabbath for the sake of God and of their national existence (I Macc. ii. 43, 44). Probably for the same reason (to facilitate war with the Gentile enemy), the Rabbis modified the laws of purification so as
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[page 620] permit the deed to be written on the Sabbath, an act otherwise prohibited (B.K. 80b).
2. The barbarian Gentiles who could not be prevailed upon to observe law and order were not to be benefited by the Jewish civil laws, framed to regulate a stable and orderly society, and based on reciprocity. The passage in Moses’ farewell address: “The Lord came from Sinai, and rose up from Seir unto them; he shined forth from Mount Paran” (Deut. xxxiii, 2), indicates that the Almighty offered the Torah to the Gentile nations also, but, since they refused to accept it, He withdrew His “shining” legal protection from them, and transferred their property rights to Israel, who observed His Law. A passage of Habakkuk is quoted as confirming this claim: “God came from Teman, and the Holy One from Mount Paran … He stood, and measured the earth; he beheld, and drove asunder the nations” (Hab. iii. 3-6); the Talmud adds that He had observed how the Gentile nations steadfastly refused to obey the seven moral Noachian precepts, and hence had decided to outlaw them (B. K. 38a).
It follows that the Gentiles were excepted from the general civil laws of Moses. For example, the Law provides that if a man’s ox gores and kills a neighbor’s ox, the carcass and the surviving ox shall be sold, and the proceeds divided between the respective owners (half-damages). If, however, the goring ox has been known to be dangerous and its owner has not kept watch over it, he shall pay full damages for the dead ox and take the carcass (Ex. xxi. 35-36, Hebr.). Here the Gentile is excepted, as he is not a “neighbor” in the sense of reciprocating and being responsible for damages caused by his negligence; nor does he keep watch over his cattle. Even the best Gentile laws were too crude to admit of reciprocity. The laws of Hammurabi provide: “If the ox has pushed a man, and by pushing has made known his vice, and the owner has not blunted his horn, has not shut up his ox, and that ox has gored a man of gentle birth and caused him to die, the owner shall pay half a mina of silver”
The Talmud relates in this connection that the Roman government once commissioned two officers to question the Rabbis and obtain information regarding the Jewish laws. After a careful study, they said: “We have scrutinized your laws and found them just, save the clause relating to a Gentile’s ox, which we can not comprehend. If, as you say, you are justified by the term ‘neighbor,’ the Gentile should be quit when defendant as well as when plaintiff.” The Rabbis, however, feared to disclose the true reason for outlawing the Gentiles, as barbarians, and rested on the textual technicality in the Mosaic law, in accordance with which they had authority to act in all cases coming within their jurisdiction (B. K. 38a).
The Mosaic law provides for the restoration of a lost article to its owner if
a “brother” and neighbor” (Deut. xxii. 1-3), but not if a Gentile (B. K. 113b), not only because the latter would
not reciprocate, but also because such restoration would be a hazardous undertaking. The laws of Hammurabi
made certain acts connected with “articles lost and found” a ground of capital
punishment. “If the owner of the lost property has not brought witnesses identifying his lost property;
if he has lied, or has stirred up strife, he shall be put to death” (Johns, l.c., § 11). The
loser, the finder, or an intermediate person was put to death in certain stages of the search for the missing
article (ib. §§ 9-13). The Persian law commanded the surrender of all finds to the king
(B. K. 28b). As an illustration of the Gentile law and of Jewish magnanimity, the following is related in the
Talmud: “Queen Helen lost her jewelry, and R. Samuel, who had just arrived in Rome, found it. A
proclamation was posted throughout the city offering a certain sum of money as a reward for the restoration of
the jewels within thirty days. If restored after thirty days, the finder was to lose his head. Samuel waited
and restored the jewels after thirty days. Said the queen: ‘Hast thou not heard of the
proclamation?’ ‘Yes,‘ answered Samuel, ‘but I would show that I fear not thee. I fear
only the Merciful.’ Then she blessed the God of the Jews” (Yer. B. M. ii.
5).
Similarly, the mandate concerning the oppression of or withholding wages from a hireling brother or neighbor, or a domiciled alien (Deut. xxiv. 14-15) who observes the Noachian laws, is not applicable in the case of a Gentile. That is to say, a Gentile may be employed at reduced wages, which need not be paid promptly on the same day, but may be paid in accordance with the usual custom of the place. The question arose whether a Jew might share in the spoils gained by a Gentile through robbery. One Talmudic authority reasoned that the Gentile exerted himself to obtain the ill-gotten property much less than in earning his wages, to which the Mosaic law is not applicable; hence property seized by a Gentile, if otherwise unclaimed, is public property and may be used by any person. Another authority decided that a Jew might not profit by it (B. M. 111b).
R. Ashi decided that a Jew who sells a Gentile
[page 621] Jew free from all possible damage arising from any act of the Gentile (B. K. 114a). The same Ashi noticed in a vineyard a broken vine-branch bearing a bunch of grapes, and instructed his attendant, if he found that it belonged to a Gentile, to fetch it; if to a Jew, to leave it. The Gentile owner overheard the order, and asked: “Is it right to take from a Gentile?” Ashi replied: “Yes, because a Gentile would demand money, but a Jew would not” (ib., 118b). This was an adroit and sarcastic answer. In truth, Ashi coincided with the opinion of the authority stated above: namely, that, as the presumption is that the Gentile obtained possession by seizure, the property is considered public property, like unclaimed land in the desert (B. B. 54b). The consensus of opinion, however, was against this authority. R. Simeon the Pious quotes to show that legal possession was required even in dealing with the Seven Nations: And thou shalt consume [“eat the spoils”] all the people which the Lord thy God shall deliver thee” (Deut. vii. 6. Hebr.), meaning that Israel could claim the land only as conquerors, not otherwise (B. K. 113b).
In one instance a Gentile had the benefit of the technical term “neighbor,” and it was declared that his property was private. The Law provides that an Israelite employed in his neighbor’s vineyard or grainfield is allowed to pick there as much as he can eat while working (Deut. xxiii. 25-26). But since the employer in this case was a Gentile (i.e., not a “neighbor”), the Israelite was forbidden to eat anything without permission (B. M. 87b). As regards the property of this Gentile perhaps his title to it was not disputed, and it was therefore considered just as sacred as that of a Jew.
Discriminations against Gentiles, while strictly in accordance with the just
law of reciprocity and retaliation, having for their object to civilize the heathen and compel them to
adopt the civil laws of Noah, were nevertheless seldom practiced. The
principal drawback was the fear of “profaning the Holy Name” [H]. Consequently it was necessary to overlook legal quibbles which might appear
unjust in the eyes of the world, and which would reflect on the good name and integrity of the Jewish nation
and its religion. Another point to be considered was the preservation “for the sake of
peace” (‘mi-pene darke shalom’) of the friendly relations between Jew and Gentile, and the
avoidance of enmity [H] (Ab. Zarah 26a;
B. K. 113b).
Not only was the principle of retaliation directed against the heathen Gentile, but it also operated against the lawless Jewish herdsmen of sheep and other small cattle, who trespassed on private property in Palestine contrary to the ordinance forbidding them to raise their herds inland (Tosef., B. K. viii. [cd Zuckermandel, p. 362]: comp. Sanh. 57a). All retaliation or measures of reprisal are based on the Jewish legal maxim of eminent domain, “The judicial authority can annul the right to the possession of property and declare such property ownerless” (B. B. 9a).
3. Another reason for discrimination was the |
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vile and vicious character of the Gentiles: “I will provoke them to anger with a foolish
nation” ([H]=“vile,”
“contemptible”: Deut. xxxii. 21). The Talmud says that the passage refers to the Gentiles
of Barbary and Mauritania, who walked nude in the streets (Yeb. 63b), and to similar Gentiles, “whose
flesh is as the flesh of asses and whose issue is like the issue of horses” (Ezek. xxiii. 20); who can
not
Excepting the Greeks, no Gentiles, not even the Persians, were particular in shedding blood (B.K. 117a). “Meeting a Gentile on the road armed with a sword [on his left], the Jew shall let him walk on his right [being thus ready to wrench away the weapon if threatened with it]. If the Gentile carries a cane [in his right hand], the Jew shall let him walk at his left [so that he may seize the cane if raised against him]. In ascending or descending the Jew shall always be above, and shall not stoop down for fear of assassination. If the Gentile ask to be shown the way, the Jew shall extend his own journey a point farther and shall not tarry on reaching the stranger’s destination” (‘Ab. Zarah 25b).
Taking these conditions into consideration, the precautions against the employment of Gentile midwives can be easily understood. A Gentile woman was not allowed to suckle a Jewish babe, save in the presence of Jews. Even so it was feared that the Gentile nurse might poison the child (ib. 25a). As a retaliative measure, or for fear of accusation, the Rabbis forbade Jewish midwives and nurses to engage themselves in Gentile families, unless offered a fee for the service or to avoid enmity (ib.). The same rule applied to physicians (Maimonides, “Yad” ‘Akkum, ix. 16). The Roman laws ordained that physicians should be punished for neglect or unskilfulness, and for these causes many were put to death (Montesquieu, “L’Esprit des Lois,” xxix. § 14). In a place where no Jewish physician could be found to perform the rite of circumcision the question arose whether a Gentile or a Samaritan mohel might be chosen to operate. If the Gentile is an expert physician patronized by the public, he may be employed, as it is presumed he would not jeopardize his reputation by purposely injuring a Jewish patient” (‘Ab. Zarah 27a). With such a character as that depicted above, it would naturally be quite unsafe to trust a Gentile as
4.
After the destruction of Jerusalem the
condition of the Gentiles in general was somewhat improved by the establishment
of Roman courts of justice; but the laws of the latter, borrowed from the
Persians and modified by feudalism, never attained the high standard of Jewish
jurisprudence. Even under the Roman supremacy the Jews were permitted to decide
their civil and criminal cases in accordance with their own code of laws, just
as in countries like Turkey, China, and Morocco extra-territorial rights are
granted by treaty to the consular courts of foreign nations. In a mixed trial where the suitors were
respectively Jew and Gentile, the Jew had to abide by the harsh and illogical
laws of the Gentiles; and for this the Jew retaliated whenever occasion arose. [remainder of article not included] |
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