Babylonian Talmud: Tractate Yebamoth

Folio 79a

the twelve months of the [first] year¹  and it would be unusual to arrange for his mourning now. As to the nethinim,²  however, let them be summoned and we shall pacify them. Immediately³  the king called the Gibeonites, and said unto them … 'What shall I do for you? and wherewith should I make atonement, that ye may bless the inheritance of the Lord'? And the Gibeonites said to him: 'It is no matter of silver or gold between us and Saul, or his house,' neither is it for us [to put] any man etc. … Let seven men of his sons be delivered unto us and we will hang them up unto the Lord etc.'⁴  He tried to pacify them but they would not be pacified. Thereupon he said to them: This nation⁵  is distinguished by three characteristics: They are merciful, bashful and benevolent. 'Merciful', for is is written, And shew thee mercy, and have compassion upon thee, and multiply thee.⁶  'Bashful', for it is written, That His fear may be before you.⁷  'Benevolent', for it is written, That he may command his children and his household etc.⁸  Only he who cultivates these three characteristics is fit to join this nation.⁹

But the king took the two sons of Rizpah the daughter of Aiah, whom she bore into Saul, Armoni and Mephibosheth; and the five sons of Michal the daughter of Saul, whom she bore to Adriel the son of Barzillai the Meholathite.¹⁰  Why just these? — R. Huna replied: They¹¹  were made to pass before the Holy Ark. He whom the Ark retained [was condemned] to death and he whom the Ark did not retain was saved alive.

R. Hana b. Kattina raised an objection: But the king spared Mephibosheth, the son of Jonathan the son of Saul!¹²  — He did not allow him to pass.¹³  Was there favouritism then! — In fact he did let him pass and it retained him, but he invoked on his behalf divine mercy and it released him. But here, too, favouritism is involved!¹⁴  — The fact, however, is that he invoked divine mercy that the Ark should not retain him. But, surely, it is written, The fathers shall not be pit to death for the children etc.!¹⁵  — R. Hiyya b. Abba replied in the name of R. Johanan: It is better that a letter be rooted out of the Torah than that the Divine name shall be publicly profaned.¹⁶

And Rizpah the daughter of Aiah took sackcloth, and spread it for her upon the rock, from the beginning of harvest until water was poured upon them from heaven; and she suffered neither the birds of the air to rest on then by day, nor the beast of the field by night.¹⁷  But, surely, it is written, His body shall not remain all night upon the tree!¹⁸  — R. Johanan replied in the name of R. Simeon b. Jehozadak: It is proper that a letter be rooted out of the Torah so that thereby the heavenly name shall be publicly hallowed. For passers-by were enquiring, 'What kind of men are these?' — 'These are royal princes' — 'And what have they done?' — 'They laid their hands upon unattached¹⁹  strangers' — Then they exclaimed: 'There is no nation in existence which one ought to join as much as this one. If [the punishment of] royal princes was so great. how much more that of common people; and if such [was the justice done for] unattached proselytes, how much more so for Israelites

A hundred and fifty thousand men immediately joined Israel; as it is said, And Solomon had threescore and ten thousand that bore burdens, and fourscore thousand that were hewers in the mountain.²⁰  Might not these have been Israelites? — This cannot be assumed, for it is written, But of the children of Israel did Solomon make no bondservants.²¹  But that²²  might have represented mere public service!²³  — [The deduction,] however, [is made] from the following: And Solomon numbered all the strangers that were in the Land of Israel, etc. And they were found a hundred and fifty thousand etc. And he set threescore and ten thousand of them to bear burdens, and fourscore thousand to be hewers in the mountains.²⁴

Was it David, however, who issued the decree of prohibition against the nethinim? Moses, surely, issued that decree, for it is written, from the hewer of thy wood to the drawer of thy water!²⁵  — Moses issued a decree against that generation only²⁶  while David issued a decree against all generations.

But Joshua, in fact, issued the decree against them, for it is written, And Joshua made them that day hewers of wood and drawers of water for the congregation, and for the altar of the Lord!²⁷  — Joshua made his decree for the period during which the Sanctuary was in existence²⁸  while David made his decree for the time during which the Sanctuary was not in existence.

1. Of mourning. A year is regarded as the maximum period for mourning after the dead. Cf. M.K. 21b.
2. Pl. of nathin. V. Glos.
3. V. BaH.
4. II Sam. XXI, 2-4, 6.
5. Israel.
6. Deut. XIII, 18.
7. Ex. XX, 17.
8. To be benevolent, [H] lit. 'to practise charity' (E.V. righteousness) Gen. XVIII. 19.
9. Israel. As the Gibeonites displayed a spirit of revenge and vindictiveness they were excluded from, and forbidden even to enter, the assembly of Israel.
10. II Sam. XXI, 8.
11. All the surviving descendants of Saul.
12. Ibid. 7. Had the selection been made by the Ark, what need was there for David to spare him?
13. To avoid the risk of being retained.
14. If he who was retained was released another would have to die in his place!
15. Neither shall the children be put to death for the fathers (Deut. XXIV, 16). Why then were Saul's descendants made to suffer for the sin of Saul?
16. Which would have been the case had the crime against the Gibeonites been allowed to go unpunished.
17. II Sam. XXI, 10.
18. Deut. XXI, 23.
19. [H] lit., 'dragged in'; proselytes who have not been admitted into the congregation, [or, 'self-made proselytes', a class of converts who Judaize in mass under the impulsion of fear. V. Moore, G. F. Judaism I, 337].
20. I Kings V, 29.
21. Ibid. IX. 22.
22. The labour spoken of in I Kings V, 29.
23. Not the labour of slaves. [H] perhaps a corruption of the Persian [H] 'day labourer'. Cf. Golds. a.l. and Jast. s.v. [H].
24. II Chron. II, 16f.
25. Deut. XXIX, 10. Since these were specially singled out they obviously did not form a part of the congregation of Israel, while their services were exactly those which were peculiar to the nethinim or the Gibeonites.
26. Of his own time.
27. Josh. IX, 27.
28. As it was specifically stated, For the altar (ibid.).

In the days of Rabbi there was a desire to permit the nethinim.¹  Said Rabbi to them, 'We could very well surrender our portion; who could surrender the portion of the altar?'²  He³  is thus in disagreement with R. Hiyya b. Abba. For R. Hiyya b. Abba stated in the name of R. Johanan: The portion of the congregation is forbidden for ever,⁴  and the portion of the altar is forbidden only when the Sanctuary is in existence, but when the Sanctuary is not in existence it is permitted.

MISHNAH. R. JOSHUA STATED: I HAVE HEARD⁵  THAT A SARIS⁶  SUBMITS TO HALIZAH⁶  AND THAT HALIZAH IS ARRANGED FOR HIS WIFE, AND ALSO THAT A SARIS⁶  DOES NOT SUBMIT TO HALIZAH AND THAT NO HALIZAH IS TO BE ARRANGED FOR HIS WIFE, AND I AM UNABLE TO EXPLAIN THIS.⁷  R. AKIBA SAID, I WILL EXPLAIN IT: A MAN-MADE SARIS⁸  SUBMITS TO HALIZAH AND HALIZAH IS ALSO ARRANGED FOR HIS WIFE, BECAUSE THERE WAS A TIME WHEN HE WAS IN A STATE OF FITNESS. A SARIS BY NATURE⁹  NEITHER SUBMITS TO HALIZAH NOR IS HALIZAH ARRANGED FOR HIS WIFE, SINCE THERE NEVER WAS A TIME WHEN HE WAS FIT. R. ELIEZER SAID: NOT SO, BUT A SARIS BY NATURE⁹  SUBMITS TO HALIZAH AND HALIZAH IS ALSO ARRANGED FOR HIS WIFE, BECAUSE HE MAY BE CURED. A MAN-MADE SARIS¹⁰  NEITHER SUBMITS TO HALIZAH NOR IS HALIZAH ARRANGED FOR HIS WIFE, SINCE HE CANNOT BE CURED. R. JOSHUA B. BATHYRA TESTIFIED CONCERNING BEN MEGOSATH, WHO WAS A MAN-MADE SARIS LIVING IN JERUSALEM. THAT HIS WIFE WAS ALLOWED TO BE MARRIED BY THE LEVIR, THUS CONFIRMING THE OPINION OF R. AKIBA.

THE SARIS NEITHER SUBMITS TO HALIZAH NOR CONTRACTS THE LEVIRATE MARRIAGE, AND SO ALSO A WOMAN WHO IS INCAPABLE OF PROCREATION MUST NEITHER PERFORM HALIZAH NOR BE TAKEN IN LEVIRATE MARRIAGE.

IF A SARIS SUBMITTED TO HALIZAH FROM HIS SISTER-IN-LAW, HE DOES NOT THEREBY CAUSE HER TO BE DISQUALIFIED.¹⁰  IF, HOWEVER, HE COHABITED WITH HER HE CAUSES HER TO BE DISQUALIFIED.¹¹  SINCE HIS ACT IS SHEER PROSTITUTION.¹²  SIMILARLY, WHERE BROTHERS SUBMITTED TO HALIZAH FROM A WOMAN INCAPABLE OF PROCREATION, THEY DO NOT THEREBY CAUSE HER TO BE DISQUALIFIED.¹¹  IF, HOWEVER, THEY COHABITED WITH HER, THEY CAUSE HER TO BE DISQUALIFIED.¹¹  SINCE COHABITATION WITH HER IS AN ACT OF PROSTITUTION.¹³

GEMARA. Observe! R. Akiba was heard to state that 'Those who are subject to the penalty of negative precepts¹⁴  are on a par with those who are subject to the penalties of kareth';¹⁵  but those who are subject to the penalty of kareth are not eligible for halizah or levirate marriage!¹⁶  — R. Ammi replied: 'What we are dealing with here is with a case, for instance, where his brother¹⁷  had married a proselyte; and R. Akiba is of the same opinion as R. Jose, who stated that an assembly of proselytes is not regarded as an assembly.'¹⁸  If so,¹⁹  he should also be permitted to contract levirate marriage!²⁰  — The law is so indeed; only because R. Joshua used the expression 'SUBMITS TO HALIZAH'²¹  he [R. Akiba] also used the expression 'SUBMITS TO HALIZAH'. This²²  may also be proved by inference; for it was stated, R. JOSHUA B. BATHYRA TESTIFIED CONCERNING BEN MEGOSATH, WHO WAS A MAN-MADE SARIS LIVING IN JERUSALEM, THAT HIS WIFE WAS ALLOWED TO BE MARRIED BY THE LEVIR,²³  THUS CONFIRMING THE OPINION OF R. AKIBA. This proves it.²²

Rabbah raised an objection: He who is wounded in the stones or has his privy member cut off, a man-made saris, and an old man, may either participate in halizah or contract levirate marriage. How?²⁴  If these died²⁵  and were survived by wives and brothers, and those brothers addressed a ma'amar to the wives, or gave them letters of divorce, or participated with them in halizah, their actions are legally valid;²⁶  if they cohabited with them, the widows become their lawful wives.²⁷  If the brothers died and they²⁸  addressed a ma'amar to their²⁹  wives, or gave them divorce, or participated with them in halizah, their actions are valid;³⁰  and if they cohabited with them the widows become their lawful wives, but they³¹  may not retain them, because it is said in Scripture. He that is wounded in the stones or hath his privy member cut off shall not enter into the assembly of the Lord.³²  This clearly proves that we are dealing³³  with members of the assembly!³⁴  — The fact is, said Rabbah, that this³⁵  is a case where the widow became subject to him³⁶  first and he was subsequently maimed.³⁷  Said Abaye to him: Let the prohibition against the maimed man override the positive precept of the levirate marriage! Did we not learn [of a similar case]: R. Gamaliel said, If she³⁸  made a declaration of refusal³⁹  well and good;⁴⁰  and if not, let [the elder sister] wait until the minor grows up and she will then be exempt as his wife's sister.⁴¹  Thus it follows that the prohibition against a wife's sister has the force of overriding [that of the levirate marriage]; here also, then, let the prohibition against the maimed man have the force of overriding it! — But, said R. Joseph. this Tanna⁴²  represents the view of the Tanna of the school of R. Akiba, who maintains that [the issue] of a union which is subject to the penalty of negative precepts owing to consanguinity⁴³  is regarded as a bastard, but [the issue] of a union that is merely subject to the penalty of negative precepts is not a bastard.⁴⁴

The text, 'To raise up unto his brother a name'⁴⁵  should be applicable to this case⁴⁶  also, but he,⁴⁷  surely, is incapable of raising it!⁴⁸  — Raba replied: If so,⁴⁹  there exists no woman who is eligible for the levirate marriage whose husband was not a saris by nature⁵⁰  for a short time, at least, prior to his death.⁵¹

Against R. Eliezer,⁵²  however, Raba's reply⁵³  presents a [valid] objection! — There⁵⁴  it is only a general state of debility⁵⁵  that had set in.⁵⁶

What are we to understand by A SARIS BY NATURE? — R. Isaac b. Joseph replied in the name of R. Johanan: Any man

1. To enter into the congregation.
2. Both the congregation and the altar have shares in them (cf. Josh. ibid.).
3. Rabbi, who forbade the portion of the altar in his time though the Sanctuary was no more in existence.
4. Until a properly constituted authority should allow it.
5. A tradition from his teachers.
6. V. Glos.
7. In what case of saris halizah is, and what case it is not applicable.
8. [H] lit., a 'eunuch of man', one whose emasculation was the result of human action. (Cf. infra n. 12).
9. [H] lit., a 'eunuch of the sun', one who was a eunuch from the time he first saw the sun, i.e., a congenital eunuch.
10. V. p. 538, n. 10.
11. To marry a priest.
12. The woman being forbidden to him as 'his brother's wife'.
13. Cf. supra n. 3.
14. A man-made saris is one of these, since cohabitation with him is forbidden by a negative precept in Deut. XXIII, 2.
15. V. supra 49a.
16. How then could R. Akiba maintain in our Mishnah that A MAN-MADE SARIS SUBMITS TO HALIZAH.
17. The deceased brother of the saris.
18. A proselyte, not being included in the term assembly (v. Deut. XXIII. 2) she is permitted to the saris. Hence he submits to her halizah.
19. V. supra n. 1.
20. Why then was only halizah mentioned?
21. According to R. Joshua, who regards an assembly of proselytes as a congregation, marriage is in fact forbidden. Only halizah is permitted because in his opinion it is applicable in the case of those a union between whom is subject to the penalty of a negative precept.
22. That according to R. Akiba even the levirate marriage is permitted.
23. Levirate marriage. V. supra n. 5.
24. I.e., in what connection is this law applicable?
25. Without issue.
26. Lit., 'what they did they have done'; after their ma'amar, a divorce is required; after their divorce, no marriage may take place; and their halizah is valid.
27. Lit., 'they acquired'.
28. The maimed mentioned or the old man.
29. Brothers'.
30. V. supra note 9.
31. Those that are maimed. The old man is excluded. V. infra.
32. Deut. XXIII, 2. V. Tosef. XI.
33. In regarding the halizah and marriage with an impotent person as valid.
34. How then could it be suggested that R. Akiba speaks of women proselytes who are not included in the term 'assembly?'
35. R. Akiba's statement in our Mishnah.
36. As his deceased brother's wife.
37. Since the obligation arose while the man was still in a state of potency, halizah with him is both necessary and valid.
38. A minor who was given away in marriage by her mother or brothers after the death of her father and whose elder sister has now become subject to the levirate marriage of her husband.
39. Mi'un (v. Glos.). No divorce is needed in the case of such a minor's marriage.
40. Lit., 'she refused'. Her marriage becomes null and void retrospectively, and, as she has thus never been the legal wife of the levir, her sister (who is now no more the levir's wife's sister) may well contract with him the levirate marriage.
41. Supra 18a, infra 109a.
42. Who, in fact, deals with a case where the impotency had set in prior to the obligation and yet permits the halizah.
43. Of the contracting parties.
44. This Tanna, like the Tanna of our Mishnah, thus draws a distinction between two classes of trespass that are subject to the penalty of negative precepts: (a) cases due to consanguinity and (b) other cases. While the former are subject to the restrictions of those who are liable to kareth, the latter are not. Maimed persons belong to the latter class and are consequently subject to the levirate law. Cf. supra 49a.
45. Deut. XXV, 7.
46. The maimed levir.
47. Owing to his impotency at the time of the halizah.
48. Though at some earlier period he might have been; why then should he be subject to halizah?
49. If his former potency is not to be taken into consideration.
50. Approaching death deprives a person of his generating powers, and he may then be regarded virtually as a saris.
51. The widow of such a saris should consequently be exempt from halizah (v. our Mishnah). How, then, would a widow ever be subject to halizah? It must, therefore, be admitted that a person's former capacity for propagation is taken into consideration even though that capacity was subsequently lost.
52. Who maintains that a manmade saris does not submit to halizah, though prior to his incapacitation he was capable of propagation.
53. Which proves the contrary of R. Eliezer's statement (cf. supra n. 6).
54. Where the power of propagation is lost on approaching death.
55. Which precedes death.
56. And this cannot at all be compared with the case of an actual saris whose incapacity is due to a definite defect in his generative organs.