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Babylonian Talmud: Tractate Sanhedrin
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?
Sanhedrin 85b— It is the same as after death.1 What is our final decision? — Rabbah son of R. Huna said, and a Tanna of the school R. Ishmael
[taught] likewise; For no offence may a son be appointed an agent to smite or curse his father, excepting if he be a mesith, since it is written, neither shalt thou spare nor conceal him.2
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].
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.
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