Babylonian Talmud: Tractate Sanhedrin

Folio 51a

The Master said: 'I might think that this applies even to the Profanation of the Sabbath.' But if she profaned the Sabbath, must she not be stoned?⁸  — Raba replied: This is taught according to R. Simeon, who regards burning a severer penalty.I might think that since the Divine Law has in general been stricter with the priests [than with the Israelites], giving them an additional number of precepts, therefore the priest's daughter [if she profaned the Sabbath] should be burnt; hence we are taught that this verse applies only to profanation by whoredom. But why should she differ from a priest himself?⁹  — I would think that a priest is punished more leniently, because he is permitted to work on the Sabbath in the sacrificial service;¹⁰  but since a priest's daughter is not so permitted, her punishment should be stoning. We are therefore taught otherwise.

'I might think that this applies even to an unmarried woman. But does not the Writ state: 'by playing the whore'? — This is taught on the view of R. Eliezer, who maintained: If an unmarried man cohabits with an unmarried woman without conjugal intent, he renders her a harlot.¹¹

'But perhaps "her father" is stated in order to exclude others?' — How then would you explain the verse? That she committed adulterous incest with her father! If so, why only a priest's daughter: does not the same apply to an Israelite's daughter? For [did not] Raba say: R. Isaac b. Abudimi said unto me: 'We learn identity of law from the fact that hennah [they] occurs in two related passages, and likewise zimmah [wickedness] in two'?¹²  — The verse [she profaneth] is necessary. For I would think that this whole passage treats of incest with one's father, and the penalty of burning is prescribed here intentionally to obviate Raba's deduction.¹³  Hence the deduction [from she profaneth].

'The daughter of any priest: from this phrase I know the law only if she was married to a priest; if she was married to a Levite, Israelite, heathen, a profaned person, bastard, or a Nathin, whence do I know that the same applies? From the verse: And the daughter of a man who is a priest, which teaches that even if she is married to one who is not a priest the same applies.' But because she is married to one of these, is she no longer considered a priest's daughter? Moreover, does Scripture state … a priest's daughter married to a priest?¹⁴  — I might think that since Scripture states, if she profane herself by playing the whore, the law deals only with one who now profanes herself for the first time;¹⁵  but in these other cases where she was already profaned before [this law should not apply]. For, a Master stated: [The verse,] If the priest's daughter also be married unto a stranger, [she may not eat of an offering of the holy things]¹⁶  teaches that if she cohabits with one who is unfit for her,¹⁷  he disqualifies her [to eat of the holy food] — And [similarly] if she was married to a Levite or an Israelite, since Scripture also states, [But if a priest's daughter be a widow or divorced, and have no child] and is returned unto her father's her house, as in her youth, [she shall eat of father's meat, i.e., of the holy food],¹⁸  it shows that as long as her husband [a Levite or Israelite] is alive, she must not eat of the holy food.¹⁹  Hence I would think that she should not be burnt; therefore the verse teaches otherwise.

Now this ruling [that even if married to a bastard, etc., she is burnt] does not agree with R. Meir's view. For it has been taught: If a priest's daughter, married to an Israelite, ate of terumah,²⁰  she must repay the principals but not the additional fifth.²¹  [If she committed adultery] her penalty is burning. But if she was married to one unfit for her [e.g., a bastard, etc.] she must repay the principal and the added fifth, and her penalty is strangulation: this is the ruling of R. Meir. But the Sages hold that in both cases she must pay the principal but not the fifth, and her penalty is burning.

'R. Eliezer said: If with her father, she is burnt; if with her father-in-law, she is stoned.' What is meant by 'her father' and 'her father-in-law'? If we say 'her father' means [that she committed whoredom] with her father, and 'her father-in-law' [that she did so] with her father-in-law: why speak particularly of a priest's daughter; an Israelite's daughter too is thus punished — a daughter [for incest with her father] by burning, and a daughter-in-law by stoning? — But 'her father' means 'under her father's authority',²²  and 'her father-in-law' indicates 'under her father-in-law's authority'.²³  Whose view is this? If the Rabbis? Do they not maintain that a nesu'ah is excluded [from strangulation and punished] by burning, but not so an arusah [who is stoned]? If R. Simeon's? Does he not maintain that both an arusah and a nesu'ah are burnt? And if R. Ishmael's?²⁴  Does he not maintain that only an arusah is burnt, but not a nesu'ah, and accordingly, [when under the authority of] her father-in-law, she is strangled?²⁵  — Rabin sent a message in the name of R. Jose son of R. Hanina:²⁶  This is the explanation of the teaching.²⁷  Indeed it is in accordance with the Rabbis' views and this is its meaning: Where an adulterous woman's death is more lenient than that of her father for incest [with his daughter], that is in the case of an Israelite's daughter, who is a arusah, her punishment being strangulation;²⁸  then in the case of a priest's daughter, her punishment is the same as her father's, viz., burning; but where an adulterous woman's penalty is greater than her father's, that is in the case of an Israelite's daughter, who is an arusah, her punishment being stoning,²⁹  then in the case of a priest's daughter, her punishment is as that of her father-in-law for incest with her, viz., by stoning.³⁰  R. Jeremiah objected to this explanation: Does then the Baraitha state 'greater' or 'lesser'? But R. Jeremiah explained it thus:

1. The Talmud explains further on why such an assumption should be made.
2. (Read with MSS 'Cuthean', v. Yad Ramah].
3. The issue of a marriage forbidden by priestly law'; cf. Lev. XXI, 7, 14.
4. The issue of adultery or incest forbidden on pain of death or Kareth: e.g., the offspring of a father and his daughter, cp. Yeb. 49a.
5. The Nethinim (Nathin, pl. Nethinim) are regarded in the Talmud as descendants of the Gibeonites, who, having obtained immunity during the Conquest of Canaan by a ruse, were degraded by Joshua to the position of 'hewers of wood and drawers of water' (Yeb. 78b; Josh. IX, 19-23). Actually they are first heard of as returning to Palestine after the Babylonian Exile (Ezra II, 58, VII, 20; Nehem. III, 26, 31). They served under the Levites in the Temple (Ezra VII, 24). Though first mentioned only after the return from the exile, it is stated that they were appointed by David to serve the Levites; hence they must have been well known in Israel long before the Babylonian Exile, in spite of their late mention. In Talmudic times they were placed on a very low level, being forbidden to intermarry with freeborn Israelites.
6. Because 'man' (E.V. 'any') is superfluous; hence it teaches that only her father need be a priest for this law to apply.
7. This is explained further on.
8. Stoning is the penalty for desecrating the Sabbath, and it is surely not commuted to burning for a priest's daughter.
9. If this be taught according to R. Simeon, why should I think that though a priest is stoned for desecrating the Sabbath — since nowhere does the Scripture differentiate between a priest and an Israelite in this respect, — his daughter is punished more severely by being burnt?
10. All Sabbath laws were suspended in favour of the Temple service, for which male priests only were eligible.
11. Whom a priest may not marry (Lev. XXI, 7); hence in his view whoredom includes pre-marriage unchastity.
12. In Lev. XVIII, 10 it is stated: The nakedness of thy son's daughter, or of thy daughter's daughter, even their nakedness thou shalt not uncover: for they ([H] hennah) are thine own nakedness. Further it is written (ibid. XVIII, 17): Thou shalt not uncover the nakedness of a woman and her daughter, neither shalt thou take her son's daughter, or her daughter's daughter, to uncover her nakedness; for they ([H] hennah) are her near kinswomen: it is wickedness ([H] zimmah). Just as in the latter verse, intercourse with one's wife's daughter is treated as with her granddaughter, so in the former case, incest with one's daughter is the same offence as with one's granddaughter. Though this is not explicitly stated, it is deduced from the fact that hennah occurs in both cases. Further, in Lev. XX, 14 it is stated: And If a man take a wife and her mother, it is wickedness ([H] zimmah): they shall be burnt with fire. The use of zimmah in Lev. XX, 14 and in Lev. XVIII, 17 show that burning by fire is the penalty in both cases; and the use of hennah in Lev. XVIII, 17 and Lev. XVIII, 10 shews that in Lev. XVIII, 10 too the penalty is burning (cf. the Euclidean axiom: the equals of equals are equal). Thus we see that incest between a man, even an Israelite, and his daughter is punished by burning. How then could we assume that the verse under discussion, which decrees burning as a penalty for whoredom by a priest's daughter (implying the exclusion of an Israelite's daughter), refers to incest with one's father, and consequently what need is there for the deduction from she profaneth?
13. I.e., to shew that only a priest's daughter committing incest is burnt, but not an Israelite's daughter, who is differently punished. In that case, the identical phrasing of the verses cited by Raba would have to be otherwise interpreted.
14. I.e., on what grounds could we assume at all that the law is applicable only if she married a priest?
15. I.e., through her whoredom.
16. Lev. XXII, 12.
17. E.g., a Nathin or bastard; that is the meaning attached to a stranger.
18. Ibid. 13.
19. This too is regarded as a measure of profanation.
20. Lit., 'that which is separated': the portion of the corn produce due to the priest.
21. Which a non-priest had to pay for eating terumah, ibid. 14.
22. I.e., when one is under the parental roof, viz., an arusah, v. p. 333, n. 3.
23. I.e., when she is to longer under the parental roof, viz., a nesu'ah.
24. His view is explained later.
25. Not stoned; for since he maintains that a nesu'ah, if a priest's daughter, does not differ from an Israelite's daughter, her penalty is strangulation, as in the case of the latter.
26. Here we have an example of a Talmudic responsum. Rabin migrated from Babylonia to Palestine, and wrote many letters from Babylonia to Palestine with the results of his researches. Cf. Keth. 49b; B.M. 114a; B.B. 139a. 'Rabin sent' then will mean from Palestine to Babylonia.
27. I.e., the Baraitha containing the statement of R. Eliezer.
28. Whilst her father's penalty is death by burning.
29. Which, according to the Rabbis, in severer than burning, the father's punishment.
30. Rashi points out that it is unnecessary to liken her punishment to her father-in-law's, since the penalty of every arusah is stoning. But in any case the Talmud refutes this explanation.

Sanhedrin 51b

R. Nahman said in the name of Rabbah b. Abbuha in the name of Rab: The halachah is in accordance with the message sent by Rabin in the name of R. Jose b. Hanina. R. Joseph queried: [Do we need] to fix a halachah for [the days of] the Messiah?⁶  — Abaye answered: If so, we should not study the laws of sacrifices, as they are also only for the Messianic era. But we say: Study and receive reward;⁷  so in this case too, study and receive reward: [He replied:] This is what I mean: Why state a halachah? In the course of the discussion, was there given a ruling at all?⁸

Now, what statement of R. Ishmael was referred to?⁹  — It has been taught: And the daughter of any priest, If she profanes herself by playing the whore:¹⁰  Scripture here speaks of a maiden [na'arah] who is an arusah. You say so, but perhaps it also refers to a nesu'ah? — The Writ sayeth: And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall be put to death.¹¹  Now all are included in the terms 'adulterer' and 'adulteress', but the Writ excluded the daughter of an Israelite, teaching that she is stoned,¹²  and the daughter of a priest, teaching that she is burnt. Just as the exception made for an Israelite's daughter refers to an arusah, but not a nesu'ah;¹³  so also, when a priest's daughter was excepted, an arusah was so excepted, but not a nesu'ah. Further, false witnesses [in respect of the charge of adultery] and the paramour [of an adulterous woman] were [originally] included in the verse: [If a false witness rise up against any man to testify against him that which is wrong …] then ye shall do unto him, as he had thought to hove done unto his brother.¹⁴  — Now, how can the words, as he had thought apply to a Paramour!¹⁵  — But say thus: The punishment of her false witnesses Is included in the text referring to the death of her paramour,¹⁶  because Scripture states: then ye shall do unto him, as he had thought to have done unto his brother; implying, but not unto his sister.¹⁷  This is R. Ishmael's opinion. R. Akiba said: [A priest's daughter], whether an arusah or a nesu'ah, is excepted [from the punishment of strangulation,] but is punished with fire. I might think that this applies even to an unmarried woman: but her father is mentioned in this passage, and her father is also mentioned elsewhere:¹⁸  just as elsewhere the reference is to whoredom by one who is bound to a husband, so here too. Thereupon R. Ishmael said unto him: If so, just as the second passage refers to a maiden [na'arah] who is an arusah, so this verse [treating of a priest's daughter] should be taken to refer to a maiden who is an arusah; [but if a nesu'ah, her punishment should be different]. R. Akiba replied: My brother, I interpret the and the daughter etc., when it would have been sufficient to say the daughter etc., as teaching the inclusion of a nesu'ah.¹⁹  R. Ishmael said to him: Shall we except this woman [i.e., a nesu'ah from the punishment of strangulation] and impose [the severer penalty of] death by fire, because you interpret the superfluous 'waw' ['and']; if this superfluous wow indicates the inclusion of a nesu'ah, then include an unmarried woman too;²⁰  whilst if it implies the exclusion of an unmarried woman [since the Deuteronomic passage explicitly relates to a married woman], then exclude a nesu'ah too. And R. Akiba?²¹  — [He holds that] the gezerah shawah serves the purpose to exclude an unmarried woman, whilst the superfluous 'waw' serves to indicate the inclusion of a nesu'ah. And R. Ishmael? — In raising the foregoing [objection] he thought that since R. Akiba had replied. 'I interpret the superfluous waw', it proved that he had withdrawn his deduction front the gezerah shawah.²²  Now, how does R. Ishmael interpret this superfluous waw? — As shewing that which was taught by the father of Samuel b. Abin: Since we find Scripture differentiating in male [priests] between the [physically] unblemished and the blemished,²³  I would think that a distinction must also be drawn in their daughters:²⁴  therefore Scripture writes a pleonastic 'waw' [to teach the inclusion of the daughter of a physically blemished priest].²⁵  And R. Akiba?²⁶  — He deduces this from the verse: [for the offerings of the Lord made by fire, and the bread of their God,] they [i.e. the priests] do offer: therefore they shall be holy.²⁷  And R. Ishmael? — He maintains that that verse could apply only to priests themselves,²⁸  but not to their daughters. Hence the necessity of the pleonastic 'waw'.

Now how does R. Ishmael interpret

1. I.e., incest with her father, or with her father-in-law.
2. I.e., under her father's authority, viz., an arusah; under her father-in-law's authority, viz., a nesu'ah.
3. And 'with her father', 'with her father-in-law', refer to status, under whose authority she is.
4. Why is such a roundabout expression used instead of simply 'arusah' and 'nesu'ah'?
5. This is in accordance with the printed text. Rashi, apparently on the basis of a slightly different reading, renders 'He is influenced by the phraseology of the first Tanna', who quotes from Lev. XXI, 9, in which 'her father' is mentioned. Tosaf., however, points out, that in many versions the text reads: why does he say, (if with) her father she is burnt? According to this, the question is: how did such an error arise in the text? To which the answer is: he is influenced by the Biblical phraseology: And the daughter of any priest … she shall be burnt with fire. Lev. XXI, 9.
6. Since the Sanhedrin no longer had jurisdiction in capital offences, there is no practical utility in this ruling, which can become effective only in the days of the Messiah.
7. [Learning has its own merit, quite apart from any practical utility that may be derived therefrom].
8. Surely not! Since Rabin and Rabina agree on the point of law, and differ only on the interpretation of R. Eliezer's statement.
9. This reverts to the former discussion, when it was said, this is according to R. Ishmael.
10. Ibid.
11. Ibid. XX, 10. Wherever the manner of death is unspecified, strangulation is meant.
12. Deut. XXII, 23f. referring to adultery by an arusah.
13. Ibid. This explicitly treats of an arusah: if it be applied to a nesu'ah too, there is none to which Lev. XX, 10 can refer.
14. Deut. XIX, 16, 19.
15. This is an interjection.
16. That is, they are punished by the same death which they intended to have brought about on the paramour.
17. Where the penalties differ; e.g.. when a priest's daughter commits adultery, she is burned, but her paramour is stoned; hence, if witnesses testified falsely on such a charge, they are to be stoned, not burned.
18. Ibid. XXII, 21f.
19. I.e., the deduction from the verbal identity (Gezerah Shawah, v. Glos.) of 'her father' does in fact apply only to an arusah: but the superfluous copulative wow (u) extends the law to embrace a nesu'ah too.
20. So the commentary of Hananel; Rashi interprets: if the gezerah shawah (identical use of 'her father' in both passages) indicates the inclusion of a nesu'ah, etc. This interpretation is rather difficult, as R. Akiba did not include nesu'ah through the gezerah shawah.
21. How would he meet this objection?
22. For mere identity of phraseology is insufficient to deduce similarity of law. There must be a tradition from one's teacher, and supposedly handed down from scholar to scholar, going right back to Moses. (Pes. 66a: so Rashi's interpretation of the rule: No one may draw conclusions from identical phraseology on his own authority). Thus R. Ishmael thought that R. Akiba had abandoned this gezerah shawah, being doubtful of the authenticity of its tradition.
23. Lev. XXI, 17, forbidding priests with a physical blemish to perform the sacrificial service.
24. With respect to adultery. viz., that only the daughter of a physically perfect priest is burnt.
25. Weiss, Dor, Vol. II, p. 105, quotes R. Ishmael's remark in this connection 'shall we exclude a nesu'ah because thou interpretest a superfluous 'waw' as being a protest against R. Akiba's method of interpretation? From the whole passage, however, we see that R. Ishmael was not fundamentally opposed to this at all, but merely disagreed on the actual application of the extension and apparent inconsistency in R. Akiba's distinction between a nesu'ah and an unmarried woman.
26. Whence does he derive this latter deduction?
27. Ibid. XXI, 6. Therefore they shall be holy is an emphatic assertion of their holiness, implying that they do not lose it even if blemished.
28. Teaching that they retain their holiness even if blemished, e.g that they may not be defiled by the dead.