Teshuvot Bayit Chadash
תשובות בית חדש
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This file contains merged sections from the following text versions:
-Responsum of surrender, trans. Elijah Judah Schochet, 2006
-https://www.nli.org.il/he/books/NNL_ALEPH002545758/NLI
Teshuvot Bayit Chadash
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This concerns the false accusations leveled in the city of Kalish against a Jew who was arrested in the matter regarding (the stealing of) their “savior.” As he was being led away he handed over his purse to some co-religionists, among them his father-in-law and brother-in-law, who were standing amidst a large throng of non-Jews. Now after this Jew had suffered martyrdom his libelers leveled a charge against the Kahal claiming that (the martyr’s) father-in-law who was the Shamash of the Kahal had taken the purse from the prisoner’s hand and that the “savior” was contained within that purse. The officials of the Royal Court handed down the verdict that the elders (of the Jewish community) were responsible for surrendering the Shamash to (stand) trial before the Wojewoda. Should they not surrender him, it would be they who would suffer the punishments (intended for him) meted out by the Royal (Court). In the interim this Shamash had made his escape and was now being hidden by a fellow Jew. There is reason to fear that if, God forbid, he were to be forced to stand trial before them, he would be unjustly subjected to tortures not even in keeping with their own (proper judicial) procedures. (This is evident) from the decree which they have issued against the (Jewish) community, for according to their own rules and regulations the community is under no obligation to stand trial. Since, as we have observed, they do as they please contrary to the rules, it is a matter of life and death should he be forced to stand trial. What is the ruling as regards this man? Is it or is it not permissible to surrender him to stand trial?
Response: Owing to the seriousness of the matter we must amplify, elucidate, and illuminate this case to the full extent of its dimensions. We have learned in the conclusion of the eighth chapter of the tractate of Terumot:
And similarly too in the case of women to whom non-Jews said: ‘Give us one from among you that we may defile her, and, if not, we will defile you all’ let them rather defile all of them, but let them defile not one soul of Israel.”
In the Jerusalem Talmud thereon there is as follows:
“Caravans of men are walking down a road, and they are accosted by non-Jews who say to them: ‘give us one from among you that we may kill him, otherwise we will kill you all.’ Though all may be killed, they may not hand over a single soul of Israel. However, if the demand is for a specified individual like Sheba son of Bichri, they should surrender him rather than be killed. Resh Lakish stated: ‘(he may be surrendered) only if he is deserving of death as Sheba son of Bichri.’ Rabbi Johanan said: ‘even if he is not deserving of death as Sheba son of Bichri.” Thus the Jerusalem Talmud.
However, in the Tosefta it is stated at the conclusion of the sixth chapter of Terumot, as cited in the SeMaG, section 165:
“Non-Jews say to a caravan of (Jewish) men: ‘Give us one from among you that we may kill him, otherwise we shall kill you all.’ Let them all be killed rather than hand over a single soul from Israel. However, if the demand is for a specified individual like Sheba son of Bichri, they may surrender him rather than be killed. Rabbi Judah said: ‘When are these words intended to apply, when he (the individual in question) is inside and they are outside. [The SeMaK, section 79, interprets “outside” to mean “outside of danger”]. But if he is inside and they are inside, since he would be slain and they would be slain, let them surrender him so that all of them will not be slain.’ And so Scripture says: “And the woman came to all the people in her wisdom etc. (which means) She said to them: ‘Since he will be slain and they (you) will be slain, hand him over and you will not be slain.’ Rabbi Simeon said: thus did she say to them: ‘anyone who rebels against the kingship of the House of David is deserving of death.”
Now we must ascertain which case is being referred to by (the phrase) “When are these words intended to apply.” It is inconceivable to interpret, as first appearances might seem to indicate, that this refers to the initial case of “no specified individual” by confining “When are these words intended to apply … that a non-specified person may be handed over … only when he is inside and they are outside, etc.” If this were so, we would be compelled to understand the concluding part: “If he is inside and they are inside” also as referring to a non-specified individual, (which) would be impossible, since the term “let them surrender him” cannot be used if no one is specified!
An additional difficulty (with this interpretation) is that (the individual being handed over could protest) “do you think that your blood is redder than mine etc.?” Furthermore, what then would be the point of employing as a proof-text “And the woman came etc.” This would constitute the citing (of an example) of a “specified” individual for (the benefit of) a “non-specified” individual! It is thus obvious that this (phrase) “When are these words in tended to apply” must refer to a case where one is specified, since we require it to be identical with the Sheba son of Bichri episode in every respect … in that “both he and they are inside danger.” in contradistinction to a case where “they are outside of danger.” For then, if they are able to escape and flee, let them flee and let them not hand him over.
But a difficulty exists. Would it not be preferable to state this in the reverse order … “When are these words intended to apply … when he and they are inside, but if he is inside and they are outside, let them not give him up”? Thus (since the text reads differently) we must interpret “When are these words intended to apply” inferentially, and thus should be their interpretation; “When are these words intended to apply” … when our case is identical to that of Sheba son of Bichri. That is to say (a case wherein) one is specified and is also deserving of death as Sheba son of Bichri. But if the individual is not deserving of death he is not to be handed over, even though he is specified, so long as he is in(side) danger and they are outside of danger. However, if both he and they are inside, then he may be handed over, even though he may not be deserving of death! For it is preferable that he alone be slain rather than have all of them be slain.
Thus he (Rabbi Judah) cites Scriptural proof from the verse “And the woman came to all the people in her wisdom etc.” What is the meaning of (the phrase) “in her wisdom”? She spoke to them as follows: “Even though according to your view he may not be deserving of death, nevertheless, since both he and you are (in danger of being) slain, give him up and all of you need not be slain.” Rabbi Simeon disputes (this view) and says: ,Even though all of them are in danger he may not be given over unless he is deserving of death as Sheba son of Bichri. And this is the meaning of the Scriptural phrase “In her wisdom” … the woman came with the wisdom of the Torah and said: ‘Anyone rebelling against the kingship of the House of David is deserving of death.’ Thus (the view of) Resh Lakish in the Jerusalem Talmud is in accordance with (the view of) Rabbi Simeon of the Tosefta (who says) that: “even though all are in danger one may not be given up unless he is deserving of death as Sheba son of Bichri,” and (the view of) Rabbi Johanan is (in agreement with the view of) Rabbi Judah of the Tosefta. Now at first glance it would appear that (in a dispute between Rabbi Judah and Rabbi Simeon) the Halakha sides with Rabbi Judah, and also (in a dispute between Rabbi Johanan and Resh Lakish) the Halakha sides with Rabbi Johanan. We would thus adopt an accommodating position in a case where all are in danger even when one is not deserving of death. As long as he is specified, he may be handed over so that all are not slain. Such would appear to be the view of the RaN in Yoma, who rules according to Rabbi Johanan, and such appears to be the ruling by the RaSH in his commentary of the Mishna of Terumot. Since he cites the controversy between Rabbi Johanan and Resh Lakish without a comment it may be assumed that in disputes between Rabbi Johanan and Resh Lakish, he accepts the talmudic view (as expressed) in the beginning of the Chapter Haholetz that with three exceptions (the ruling is always according to Rabbi Johanan). A similar inference can be drawn from the words of the SeMaG, section 161 in “Prohibitions” and SeMaG (sic! read SeMaK) section 79.
Rambam, however, in chapter five of the Hilkhot Yesodei HaTorah (the Laws of the Principles of the Torah), held that …
“(only) a specified person who is deserving of death as Sheba son of Bichri may be handed over, and (even) this is not held permissible at the outset. But if the individual is not deserving of death, let all the others be slain rather than hand over a single soul from Israel.”
Assuming that he (Rambam) accepted my explanation, it would be very difficult to explain why he decided in favor of Resh Lakish as against Rabbi Johanan and in favor of Rabbi Simeon in opposition to Rabbi Judah! The Haggahot Maimuni is indeed perplexed by this and he remarks:
“This merits serious attention for he (Rambam) has ruled in favor of Resh Lakish rather than Rabbi Johanan who said: ‘even if one is not deserving of death, etc.’”
In my own humble opinion, therefore, Rambam found difficulties with the interpretation we have given. For (if our interpretation is correct) why then did not he (Rabbi Judah) say “When are these words intended to apply, when he is inside and they are outside, or when he is outside and they are inside.”! It would be pressing (the logic of the argument) to say that he chose (to mention) only one of the cases and rested (his argument) on the (concluding) phrase: “but when both he and they are inside etc.” inferring that “they would not give him up” unless “all of them are in(side) the danger.” It could also be argued, however, that Rabbi Judah (by deleting the alternative phrase) would seek to emphasize a more important element, namely that even when “he is inside and they are outside,” and when he is as good as dead, even then they ought not to give him up. Needless to say that he would not be given up when “they are inside and he is outside.” All this would have pressed Rambam’s logic for (the phrase) “When are these words intended to apply” often emphasizes that (a limitation is implied and) ... it is only under such circumstances. Therefore, he (Rabbi Judah) should have explained (the situation in such a manner): “When are these words intended to apply when he is inside and they are outside, but… as Sheba son of Bichri etc.” Moreover, because he does not simply state ‘but if they specified one of them,’ but (instead) he adds “as Sheba son of Bichri was specified,” he thus infers that we must (have a case) exactly equivalent to that of Sheba son of Bichri.
Now Rabbi Judah and Rabbi Simeon have no dispute (with one another); each man merely emphasizes a different aspect of the case. Rabbi Judah’s view qualifies the phrase of the Tanna Kamma “as Sheba son of Bichri,” and advises us that were this (case) not exactly equivalent to that of Sheba son of Bichri, they would not have the right to hand the man over, even if he were specified … “When are these words intended to apply, that he is not handed over, even when not specified, when he is inside and they are outside.”
Rabbi Simeon emphasizes that the choice of the phrase “as Sheba son of Bichri” teaches us that even when specified, and even when both he and they are inside, he is nevertheless not to be handed over unless he is deserving of death in a case exactly equivalent to that of Sheba son of Bichri … “for whosoever rebells against the kingship of the House of David is deserving of death.”
Now obviously Rabbi Judah also concurs with Rabbi Simeon that the case must involve one who is deserving of death. What Rabbi Judah does not emphasize, Rabbi Simeon does emphasize and vice versa. Both of them, however, are in agreement that the case must be exactly equivalent to that of Sheba son of Bichri in every respect … insofar as the individual must be specified, that he must be deserving of death, and that both he and they must be inside.
Now it is proper that Rabbi Judah did not employ the phrase “when are these words intended to apply, when he is outside and they are inside,” for he speaks of one deserving of death as Sheba son of Bichri, and such a one would not be given up only (in a case) when they are out(side) of danger … even though he is inside. However, when they are in(side) danger, even though he is outside of danger, they may give him up because he is deserving of death and he has been specified. Nor do we say “let him be killed and not transgress” in accordance with the principle of “Do you think that your blood is redder than mine etc.”, for the man described in that episode contained in the chapter of “Ben Sorer U’Moreh” (The Rebellious Son) … “He said to Raba; the governor of my town has ordered me etc.” ... is not deserving of death! But (in our case) when he is deserving of death, even though he is outside of danger (we give him up), and, because he brought his guilt upon his own soul by being responsible for a deed for which the penalty is death according to their laws, we do not invoke (the principle of) “Do you think that your blood is redder etc.” The reverse is true, and we say that the blood of such men is indeed redder (than his blood) for he is (they are) not guilty of having committed any acts which would make him (them) deserving of death.
Therefore, as both Rabbi Judah and Rabbi Simeon rule that one cannot be given up unless he be deserving of death as Sheba son of Bichri, the Halakha should follow Resh Lakish for he has the support of these Tannaim, and the Halakha should not follow the view of Rabbi Johanan because the Tannaim dispute him (and thus render the general rule mentioned above inapplicable).
Now granted that is is possible to follow the first interpretation … namely that Rabbi Judah and Rabbi Simeon engage in a controversy and Rabbi Johanan is supported by Rabbi Judah (in contending) that one may be given over even if he is not deserving of death. Nevertheless, since it is not expressly stated that Rabbi Judah entertains this view … and, on the other hand, Rabbi Simeon’s opinion that “he must be deserving of death” is expressly worded ... it is possible to interpret Rabbi Simeon as adding to Rabbi Judah’s ruling, and not disputing it, and, in addition, the fact that Rabbi Judah may concur with Rabbi Simeon that the case must concern one who is deserving of death … all this prompted Rambam to rule in accordance with Resh Lakish. This helps to settle any doubt as to why Rabbi Judah did not employ (the phrase) “When are these words intended to apply … when he is outside and they are inside.” It is as we have explained it.
There is an objection raised against the view of the Rambam by the SeMaG (sic! read SeMaK), section 79, concerning the case of a specified individual. The SeMaG (read SeMaK) writes: “It would appear that in the case under discussion he is in danger with them … but were he outside of danger, he would not be given up.” However, this objection is unsubstantiated because the SeMaG (read SeMaK) is writing from his own perspective, and he rules in accordance with Rabbi Johanan that a designated man may be given up even if he is not deserving of death. Therefore, according to his view, we surely would not hand him over unless both “he and they are inside,” for better that he alone be slain than have all be slain. We must thus conclude that Rabbi Judah chose to state only (the phrase) “When he is inside and they are outside” within the context of “When are these words intended to apply.” Or, as previously mentioned, this was done intentionally so as to bring to the fore an additional teaching. However, according to Rambam who follows Resh Lakish (in maintaining) that one must be deserving of death, there is no doubt that one may be given up even when he is outside of danger ... as long as they are in(side) danger, as I have explained.
The ReMaKH’s objection to Rambam, cited in Kesef Mishna, can also be answered in keeping with my interpretation. This is the citation …
‘Even though the Tosefta supports his (Rambam’s) view we do not know why it should be so, for the Talmud states that the reason why we say, in a case involving murder, that one should sooner “be slain than transgress” (by slaying another) is because (of the principle) “Do you think that your blood is redder than mine?” But this principle is inapplicable here for all of them will die including himself! Thus better that he alone be slain than to have all of them be slain.”
Now it would appear, at first glance, that this question pertains to a case where no individual has been specified, and in such a way was it understood by the Kesef Mishna who objected to it. However, according to my own humble view, it is obvious that ReMaKH’s interpretation pertains to a case where an individual, not deserving of death, is specified. ReMaKH objected that even though the Tosefta supports Rambam’s view, which he implies to be similar to the view of Rabbi Simeon in the Tosefta, the case must be identical to that of Sheba son of Bichri with the required condition that the individual be deserving of death, for anyone who rebels against the kingship of the House of David is deserving of death, “I (the ReMaKH) do not know why etc. (this need be so.” There is no doubt that this section of the Jerusalem Talmud must have escaped (the notice of) the ReMaKH, for his response is in reality the view of Rabbi Johanan who stated that even if one is not deserving of death, so long as both he and others are to be slain, it is better that he alone be slain than have all be slain. Resh Lakish, however, forbids the handing over of anyone unless he is deserving of death … even if he and the others are to be slain. Thus (ReMaKH) may no longer ask: what is the reason? For the essence of the reason “Do you think that your blood is redder etc.” is, as we have interpreted, that since a transgression is to take place and an Israelite is to be killed, better that you should be slain and a transgression not take place. For if this is not so what then is the sense of “Do you think that your blood is redder etc.?” This (phrase) could be interpreted in the (reverse) sense to infer that your life does have precedence (over the life of another); Rabbi Akiba so taught in the chapter of Eizehu Neshech ״ regarding the container of water; If two will drink from it both of them will die ... Do we then say “Do you think that your own life has precedence?” We are thus forced to conclude that the essence of this principle is that since an Israelite is to be slain and the commandment (of being alive) is to be nullified, why should God desire that this commandment be transgressed? Why should your blood be more beloved to Him than the blood of another? We are forced to conclude that (better) all be slain and the commandment not be transgressed. However, in a case where the individual is deserving of death, the blood is upon his own head because he caused his own soul to be endangered. We thus need not become entrapped in his blood and it is permissible to hand him over. Nor do I regard this as a nullification of the commandment, for he himself negated it by means of the deeds which he committed which (in turn) caused his own death.
It would appear that Maharam M’Rothenburg in the Haggahot Maimuni stated that Rambam’s decision is that the Halakha is in accordance with Resh Lakish because of the following episode in the Jerusalem Talmud…
“Ulla bar Qoseb was wanted by the (Non-Jewish) government. He arose and fled to Rabbi Joshua ben Levi at Lydda, (whereupon troops were dispatched). They came, surrounded the city and said: ‘If you do not hand him over to us we will destroy the city.’ Rabbi Joshua ben Levi went up to him, persuaded him to submit and gave him up (to them). Now Elijah, of Blessed Memory, had been in the habit of visiting him (Rabbi Joshua) but he ceased visiting him. He (Rabbi Joshua) fasted several fasts and Elijah appeared and said to him: ‘Shall I reveal myself to informers (betrayers)’? He said: ‘have I not carried out a mishna?’ Said he: ‘is this a mishnat hasidim?’”
But this necessitates investigation for what proof can be derived from here? Perhaps the incident involved one who was not deserving of death, and even so Rabbi Joshua ben Levi surrendered him because he concurs with (the view of) Rabbi Johanan! One is forced to conclude that Maharam is drawing an inference here, for if this individual is not deserving of death how could Rabbi Joshua ben Levi have possibly said, “Have I not carried out a mishna”? Elijah obviously maintains that our mishna deals with (the case of) one who is deserving of death, and even if you were to suggest that Rabbi Joshua ben Levi might have thought that Elijah would concur that our mishna concerns itself with one who is not deserving of death, nevertheless, this is surely not a mishna (teaching) for the pious to hand him over, seeing that he is not deserving of death! The answer is an obvious one from any angle; how then could Rabbi Joshua ben Levi have possibly said ‘‘have I not carried out a valid mishna”? There is no choice but to say that this case also involved one who was deserving of death. Rabbi Joshua ben Levi might have presumed that there was no need for any degree of piety (mercy), seeing that the man is deserving of death, for it would be similar to the episode of Sheba son of Bichri where no one was refrained from killing him on the basis of any degree of piety. However, Elijah, of Blessed Memory, retorted “Is this a mishna for the pious”? That is to say … better that this act be done by another than by Joshua ben Levi. So is it rendered in Genesis Rabbah at the conclusion of chapter 94, and in my own humble view this justifies the proof adduced by Maharam.
What emerges from our discussion is that Rambam’s ruling according to (the view of) Resh Lakish is firmly rooted and securely established. So the Aguda ruled in chapter 8 of Terumot, and so would appear (to be the opinion of) Moses Isserles who cites the two views in the Haggahot but concludes with the view of Rambam. It thus appears that we rule stringently; See Yoreh Deah, 157.
Now let us proceed to our own case. It would appear that (as regards) all the demands of the libelers against the (Jewish) community, namely their designating a specific individual and saying; “give over to us that one and we will deal with him accordingly or else you shall be liable to punishment in his stead,” whether the penalty involved is one of death, or of punishment or torture, or merely one of monetary fine, if that particular Jew is deserving of punishment because of the deeds he perpetrated in the presence of the gentiles, then they may hand him over to the gentiles. This is in keeping with the opinion of Rambam according to the view of Resh Lakish, for since he brought it all upon his own soul by virtue of his deeds, we are not responsible for him.
Therefore in our case, if the Jew who is the Shamash of the community took the pocketbook into his possession in the presence of the gentiles, it makes no difference whether he received the pocketbook directly from the owner or indirectly, whatever the case may be, we may state without doubt that we are permitted to surrender him over for judgment at their hands. For he brought it all upon himself when he accepted the pocketbook from the Jew against whom the accusation was leveled, fearing not that he would be similarly libeled. Therefore he brought himself into peril by causing them to decree that he stand trial according to their laws for the offense of accepting the pocketbook. We may thus surrender him to them for trial. True, his life may be in danger, but since he was specified and was indeed liable according to their laws, we are not responsible for his blood … rather, his blood is upon his own head for he brought it (all) upon himself.
Now even though Rambam wrote that we do not rule so from the outset, it would appear that this would be the case only when it is expressly stated that the individual will be put to death, as in the case of Rabbi Joshua ben Levi, to whom Elijah said; “This is not a mishna for the pious”, meaning, interpreting the Rambam (to have proposed) that it would have been preferable had this been done at the hands of another and not by Rabbi Joshua ben Levi, as I have interpreted it. That is to say … since Rabbi Joshua ben Levi was the decisor (a judge), his action (in this case) is tantamount to his teaching a precedent law from the outset, and others would surely follow this precedent. But were this (done) by another there would have been no precedent from which to infer that such may be indeed done from the outset. For it could be maintained that we do not act accordingly only when the demand specifically implies (the) death (penalty). But when the demand is an undefined one and there is quite possibly no intent on their part to kill him, or, as in our case, where the intent of the officers is perhaps (only) to clarify and determine the truth of the matter, and they have thus decreed that the Jew who received the purse should stand in judgment so that they can interrogate and cross-examine him to determine whether he can be trapped in his testimony ... or perhaps the reasoning of the officers is as follows: the true test of the matter is that a guilty man will not appear to stand trial lest he be convicted, while one who is innocent will not be afraid to appear to stand before the court … thus as capital punishment is most likely not an issue in this case, it is surely permissible to hand him over, and there is no violation of a “teaching for the pious.”
Genesis Rabbah, chapter 94 supplies clear proof for this:
“It was taught … when Nebuchadnezzar went up to subjugate Jehoiakim, he went up and sat in Daphne of Antioch. The Great Sanhedrin went down to greet him and asked him, ‘Has the time come for the Temple to be destroyed?’ ‘No’, he replied, ‘but Jehoiakim king of Judah has rebelled against me. Surrender him to me and I will depart.’ So they returned and told Jehoiakim, ‘Nebuchadnezzar demands your surrender.’ ‘And is it right to act thusly,’ he exclaimed, ‘can you push aside a soul for a soul? Is it not written, ‘Thou shalt not deliver a fugitive slave unto his master’. ‘Did not your old one do thus to Sheba son of Bichri?’ they replied, (when they said to Joab) “Behold his head shall be thrown to you over the wall”. As he would not listen to them, they arose, seized him, and lowered him (down over the wall) and he cut him in pieces.”
Now one can raise a valid question; is it then possible for the Great Sanhedrin to proceed contrary to that which Elijah of Blessed Memory said to Rabbi Joshua ben Levi … “Is this a mishna for the pious”? And even though Rabbi Joshua ben Levi lived (in a) later (period of time), this view was nevertheless surely not unknown to the Sanhedrin. Moreover, a stronger objection (can be raised); why did Rabbi Joshua ben Levi not answer Elijah (by saying) 'I base (my actions) on the Great Sanhedrin which acted similarly toward Jehoiakim.’ Now in the special case of Sheba ben Bichri it was proper to rule (that he may be handed over) immediately, for he was deserving of death according to the Torah ... as it is written ‘Whoever rebels against the kingship of the House of David is deserving of death,’ but (the verdict in) the case of Rabbi Joshua ben Levi is surely open to question, for he (Ulla) was not deserving of death according to the Torah but according to the laws of the (gentile) authorities, and this is similar to the episode involving Jehoiakim and Nebuchadnezzar. What then is the difference between the case where the Sanhedrin acts in such a manner immediately and the case of Rabbi Joshua ben Levi who is told ‘Is this a teaching for the pious’?
Now in my humble opinion the Great Sanhedrin was not certain that Nebuchadnezzar intended to execute Jehoiakim (but thought) perhaps he only wished to imprison him. Jehoiakim’s exclamation ‘And is it right to act thusly … is it not written “Thou shalt not deliver … etc.” is now most understandable. Otherwise it could be rightly asked; what has (the argument of) “thou shalt not deliver” to do here? Rather, there are two separate replies … one, assuming that Nebuchadnezzar’s intention was to indeed execute him, and since ‘we do not push aside a soul for a soul,’ therefore one is compelled to state ‘We do not rule so from the outset. 'Another (explanation) … even if you would maintain that Nebuchadnezzar’s sole intention is to imprison me as his eternal slave, nevertheless, since you are violating (the principle of) “Thou shalt not deliver”, you have no right to hand me over to him. To which the Great Sanhedrin replied: ‘Even though he intends to kill you, we are not responsible (for your safety) for you are deserving of death according to the law of Nebuchadnezzar, and this is similar to the case of Sheba son of Bichri. Nevertheless, we would not rule so from the outset, for you are not deserving of death according to the law of the Torah. However, as his intentions as to whether or not to kill you are unknown, when you exclaim ‘behold, we are violating “a teaching for the pious”, (we respond) since you brought it all upon yourself by violating his decrees, your blood is upon your own head! However, in the case involving Rabbi Joshua ben Levi, where the authorities sought to kill him (Ulla), see Genesis Rabbah, chapter 94 ... “Rabbi Joshua ben Levi entered into a disputation with him, tried to appease him, and said to him ‘It is better that that man (you) should be slain than that the community should be punished on his (your) account”, it was not, therefore, a teaching for the pious, for even though he was deserving of death according to their laws, he was not deserving of death according to the law of the Torah!
There are three categories in the matter:
A. If he is deserving of death according to the law of the Torah, as was Sheba son of Bichri, it is permissible (to hand him over) from the outset.
B. If he is not deserving of death according to the law of the Torah but only according to their laws, and they ask for him with the intent to kill him ... it is not a “teaching for the pious” and we do not rule (that we may hand him over) from the outset.
C. If they demand that he be handed over to them, and it is not known whether or not they intend to kill him, if according to their laws he is to be handed over to them, then we may hand him over … and we rule thusly from the outset.
Now (let us apply these principles) in the case before us. They are not demanding the Shamash from the community in order to kill him, but rather that he be handed over so that he may stand trial. Therefore, as he brought it all upon his own person by accepting the pocketbook, this resulting in their demand that he stand trial, we are not violating a ‘teaching of the pious’ if we prevail upon him and attempt to persuade him (to surrender himself) so that the community should not be punished for his deeds. Should he refuse to give in to persuasion, we are even permitted to hand him over to stand judgment before them, and there is no consequence of sin involved (on our part) in the matter. Furthermore, it appears that Rambam’s statement to the effect that ‘we do not teach so from the outset’ is a statement without precedent. For the plain meaning of the comment ‘Is this a mishna for the pious?’ is, that it is indeed a law and it is taught accordingly in the academy. However, the ways of piety demand that such a thing be done, not by him (Rabbi Joshua ben Levi), but rather be done at the hands of others. So have we explained it.
Since it (Rambam’s statement that ‘we do not rule so from the outset’) is a statement without precedent let us not add (difficulty) to it. It surely applies only in a case where they seek to kill him. But when they say ‘give him over to us’ and there is reason to believe that their intention is merely to imprison him, then we do rule so, even from the outset.
This may be gathered from the writings of Rabbi Moses Isserles who did not record the stringent rule ‘we do not rule so from the outset’ in his annotations. Obviously, he too does not rule as stringently as Rambam in this case. His ruling is correct, as we have written.
Now in the case before us, even though the Shamash has fled the scene and escaped, thus being outside of danger while the entire community is in(side) danger, and the SeMaK has ruled that it is forbidden to hand him over under such circumstances ... we have written that this is correct only according to the view of Rabbi Johanan who rules that a specified individual may be handed over even though he may not be deserving of death. Now, according to his line of reasoning, one would conclude that this leniency is in effect only because he and they are all to be slain if he is not handed over. For should this not be so, a contradiction could be raised from Raba’s statement ‘Do you think that your blood is redder?’ and what real difference is there between actually putting one to death with his own hands or handing one over to be slain at the hands of a murderer? We are compelled to conclude, however, that this case is different, for, in any event, he too will be slain. Better, therefore, that he alone should be slain than be killed along with the others.
But according to Resh Lakish (who rules) that it is forbidden to hand one over unless that one is deserving of death, even if that one deserving death is outside of danger and the Jews are told ‘Give us that one who is hiding amidst you, and, if not, we will slay you’, it is permissible to hand him over to be killed. Let not one undeserving of death be slain. Rabbi Johanan, too, would surely concur in this case.
Now the phrase we have learned in the Jerusalem Talmud; ‘or we will slay all of you (plural)’ does not refer to the second clause where he (the specified individual) is deserving of death. For there would surely be no need to state ‘all of you (plural)’, for, according to Resh Lakish, it would be permissible to hand him over even if the text read ‘and if not we will kill you (singular)’. The choice of the phrase ‘all of you’ is meant to emphasize the extraordinary teaching in the first clause, namely, that when an unspecified man is demanded, even if all the others will be slain, we do not surrender a single soul from Israel.
Isserles, therefore, when recording this view in accordance with Rambam’s stringent ruling, did not mention that this applies (only) when they say ‘and if not we will kill all of you’. For it is obvious that a man deserving of death would be handed over to them even if their demand was ‘and if not we will kill you alone’. To be sure this is a difficult matter, for in the first logical argument one ruling according to the opinion of Rabbi Johanan would interpret this to mean that it is only permissible to hand a man over if (the threat specifies) ‘and if not we will kill all of you’! But this can be refuted, because, in the essence of the case, he rules stringently, as does Rambam. He therefore wrote the first logical argument in an imprecise manner, and comments that, in the opinion of some, only one deserving of death as Sheba son of Bichri can be handed over, even in this case. He thus emphasizes that, when one is deserving of death, it is permissible to hand him over even if the demand is not ‘and if not we will kill all of you’, but rather ‘and if not we will kill you (singular)’.
The basic principle in the case before us is as follows… if the Shamash took possession of the pocketbook in the presence of the non-Jews, he brought the responsibility of standing in judgment according to their laws upon his own soul and we are permitted to hand him over to them. But if the Shamash did not accept (the pocketbook) but another one took it, then it is forbidden for us to attempt to persuade or to coerce the Shamash to appear for trial, for he, in no way, brought upon himself the obligation to stand before them in judgment.
So it appears according to my humble opinion.
I have written and signed my name, Joel of small stature, on the twenty-first day, (of the counting of the Omer) according to the chronology of the Children of Israel, (5)380, here in the holy community of Cracow.
HaChadashot
Kuntres Acharon