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Notes from Limmud 2011

Can you hire a hitman? Talmud with the back-story left in

Benjamin Crowne

[Standard disclaimer: All views not in square brackets are those of the speaker, not myself. Accuracy of transcription is not guaranteed. This post is formatted for LiveJournal; if you are reading it on Facebook click on "View original post" for optimal layout.]

Kidushin 43a talks about agency: If you hire someone to do something for you, and that something is in contravention of a commandment, who is liable for it: the person who commissioned them, or the person that carries it out?

Kidushin 43a קידושין מג א

It was taught: If he says to his agent, "Go forth and slay a soul", the latter is liable and his sender is exempt. Shammai the Elder said in the name of Ḥaggai the prophet: His sender is liable, for it is said [with regard to King David] "you have slain him with the sword of the children of Ammon".*

What is Shammai the Elder's reason?

...

What is meant by liable?
1. He is liable by the laws of Heaven. Hence it follows that the original opinion holds him exempt even by the law of Heaven!

2. Rather, they differ in respect to a greater or a lesser penalty.

3. Another alternative: there it is different, because the Divine Law revealed it [thus]: "and you have slain him with the sword of the children of Ammon." And the other [opinion]? It counts to you as "the sword of the children of Ammon": you cannot be punished for the sword of the children of Ammon, so you will not be punished for [the death of] Uriah the Hittite. What is the reason? He was a rebel against sovereignty, for he said to [David], "and my lord Yo'av, and the servants of my lord, are encamped in the open field, [shall I then go into my house, to eat and to drink, and to lie with my wife?]"

דתני האומר לשלוחו צא הרוג את הנפש הוא חייב ושולחיו פטור שמאי הזקן אומר משום חגי הנביא שולחיו חייב שנאמר אותו הרגת בחרב בני עמון

מאי טעמיה דשמאי הזקן

...

ומאי חייב

חייב בדיני שמים׃ מכלל דתנא קמא סבר אפילו מדיני שמים נמי פטור

אלא דינא רבה ודינא זוטא איכא בינייהו׃

ואיבעית אימא שאני התם דגלי רחמנא אותו הרגת בחרב בני עמון׃ ואידך הרי לך כחרב בני עמון מה חרב בני עמון אין אתה נענש עליו אף אוריה החתי אי אתה נענש עליו מאי טעמא מורד במלכות הוה דקאמר ליה ואדוני יואב וכל עבדי אדוני על פני השדה חונים׃

* This is referring to the incident in which David got Bathsheba pregnant, and then had her husband Uriah bumped off in war, but first tried to get him to sleep with her, so nobody would think the son was David's:
2 Samuel 12:9 שמואל ב יב ט
Why have you despised the commandment of the Lord, to do evil in His sight? You have killed Uriah the Hittite with the sword, and have taken his wife as your wife, and have slain him with the sword of the children of Ammon. מַדּוּעַ בָּזִיתָ אֶת־דְּבַר ה׳ לַעֲשׂוֹת הָרַע בְּעֵינַי אֵת אוּרִיָּה הַחִתִּי הִכִּיתָ בַחֶרֶב וְאֶת־אִשְׁתּוֹ לָקַחְתָּ לְּךָ לְאִשָּׁה וְאֹתוֹ הָרַגְתָּ בְּחֶרֶב בְּנֵי עַמּוֹן׃

The Gemara is trying to reconcile these two sources here.

There are a number of odd things here.

First, Shammai the Elder citing in the name of Ḥaggai the prophet. This looks like a typical Talmudic attribution; however, Shammai, who is an early tanna, rarely appears directly himself, and when he does, it's almost always in an argument with Hillel. Moreover, he is quoting in the name of Ḥaggai; the prophets are normally quoted in halachic contexts, and bringing proof texts, however here we are quoting Ḥaggai as a person, rather than from his prophetic book. The speaker does not know of another place where this is done. Both of these speak as people outside of the Hillel-Gamliel-Rabbi Yehudah haNasi line of authority.

Why is the Gemara trying to resolve Shammai's opinion and merge it back into the general opinion?

Kidushin 42a א מב קידושין
If the agent does not act in accordance with his instructoins, he is liable for trespass. If the agent does act in accordance with his instructions, the sender is liable. שליח שלא עשה שליחותו שליח מעל עשה שליחותו בעל הבית מעל

Everyone here agrees that if you send someone to do a sin, you're liable for it, but Beth Hillel and Beth Shammai dispute the Biblical source of this law.

It's not clear which of the two sources is the general case and which the specific, but Beil Hillel and Beis Shammai don't have the dispute here that Hillel and Shammai do.

2 Samuel 11:14-18 שמואל ב יא יד-יח
It came to pass that in the morning David wrote a letter to Yo'av, sending it by the hand of Uriah. He wrote in it: "Set Uriah in the forefront of the hottest battle, and retire from him, so that he will be hit, and die." It came to pass, when Yo'av observed the city, that he assigned Uriah to a place where he knew were valiant men. The men of the city essayed forth and fought with Yo'av, and there fell some of the people of David's servants; and Uriah the Hittite died also. Then Yo'av sent and told David all the things concerning the war; ... The messenger said to David, "See, the men prevailed against us, and came out to us into the field, and we were upon them as far as the opening of the gate. Then marksmen shot at your servants from off the wall; and some of the king's servants died, and your servant Uriah the Hittite died too." וַיְהִי בַבֹּקֶר וַיִּכְתֹּב דָּוִד סֵפֶר אֶל־יוֹאָב וַיִּשְׁלַח בְּיַד אוּרִיָּה׃ וַיִּכְתֹּב בַּסֵּפֶר לֵאמֹר הָבוּ אֶת־אוּרִיָּה אֶל־מוּל פְּנֵי הַמִּלְחָמָה הַחֲזָקָה וְשַׁבְתֶּם מֵאַחֲרָיו וְנִכָּה וָמֵת׃ וַיְהִי בִּשְׁמוֹר יוֹאָב אֶל־הָעִיר וַיִּתֵּן אֶת־אוּרִיָּה אֶל־הַמָּקוֹם אֲשֶׁר יָדַע כִּי אַנְשֵׁי־חַיִל שָׁם׃ וַיֵּצְאוּ אַנְשֵׁי הָעִיר וַיִּלָּחֲמוּ אֶת־יוֹאָב וַיִּפֹּל מִן־הָעָם מֵעַבְדֵי דָוִד וַיָּמָת גַּם אוּרִיָּה הַחִתִּי׃ וַיִּשְׁלַח יוֹאָב וַיַּגֵּד לְדָוִד אֶת־כָּל־דִּבְרֵי הַמִּלְחָמָה׃ ... וַיֹּאמֶר הַמַּלְאָךְ אֶל־דָּוִד כִּי־גָבְרוּ עָלֵינוּ הָאֲנָשִׁים וַיֵּצְאוּ אֵלֵינוּ הַשָּׂדֶה וַנִּהְיֶה עֲלֵיהֶם עַד־פֶּתַח הַשָּׁעַר׃ וַיֹּראוּ הַמּוֹרִאים אֶל־עֲבָדֶיךָ מֵעַל הַחוֹמָה וַיָּמוּתוּ מֵעַבְדֵי הַמֶּלֶךְ וְגַם עַבְדְּךָ אוּרִיָּה הַחִתִּי מֵת׃

So Uriah was killed not in the heat of the battle by a sword, but by an arrow! There's a little ambiguity as to whether David's instructions were precisely carried out, but Nathan holds him responsible.

There is an opinion that the sage being referred to above is not Shammai but Shemaya, one generation earlier:

Avot 1:1 אבות א א

Moses received the Torah from Sinai and transmitted it to Joshua; Joshua to the elders; the elders to the prophets; and the prophets [the last of whom were Habbakuk, Malachi and Ḥaggai] handed it down to the men of the Great Assembly.

...

Shemayah and Avtalyon received the Torah from them. Shemayah said: Love work, hate domination, and seek not undue intimacy with the government.

...

Hillel and Shammai received the Torah from them.

משה קבל תורה מסיני ומסרה ליהושע ויהושע לזקנים וזקנים לנביאים ונביאים מסרוה לאנשי כנסת הגדולה׃

...

שמעיה ואבטליון קבלו מהם׃ שמעיה אומר, אהוב את המלאכה, ושנא את הרבנות, ואל תתודע לרשות׃

...

הלל ושמאי קבלו מהם׃

There's no specific verse in Ḥaggai that is being referred to; he generally exhorts people in the rebuilding of the Temple:

Ḥaggai 1:12-1:14 חגיי א יב-יד
Then Zerubbabel ben Shealtiel, and Yehoshua` ben Yehoṣadaq the high priest, and all the remnant of the people, obeyed the voice of the Lord their God, and the words of Ḥaggai the prophet, as the Lord their God had sent him, and the people feared before the Lord. Then Ḥaggai the Lord's messenger, in the messaging of the Lord said to the people, "I am with you, says the Lord." Then the Lord stirred up the spirit of Zerubbabel ben Shealtiel, governor of Judah, and the spirit of Yehoshua` ben Yehoṣadaq the high priest, and the spirit of all the remnant of the people; and they came and wrought work in the house of the Lord of hosts, their God. וַיִּשְׁמַע זְרֻבָּבֶל בֶּן־שַׁלְתִּיאֵל וִיהוֹשֻׁעַ בֶּן־יְהוֹצָדָק הַכֹּהֵן הַגָּדוֹל וְכֹל שְׁאֵרִית הָעָם בְּקוֹל ה׳ אֱלֹהֵיהֶם וְעַל־דִּבְרֵי חַגַּי הַנָּבִיא כַּאֲשֶׁר שְׁלָחוֹ ה׳ אֱלֹהֵיהֶם וַיִּירְאוּ הָעָם מִפְּנֵי ה׳׃ וַיֹּאמֶר חַגַּי מַלְאַךְ ה׳ בְּמַלְאֲכוּת ה׳ לָעָם לֵאמֹר אֲנִי אִתְּכֶם נְאֻם־ה׳׃ וַיָּעַר ה׳ אֶת־רוּחַ זְרֻבָּבֶל בֶּן־שַׁלְתִּיאֵל פַּחַת יְהוּדָה וְאֶת־רוּחַ יְהוֹשֻׁעַ בֶּן־יְהוֹצָדָק הַכֹּהֵן הַגָּדוֹל וְאֶת־רוּחַ כֹּל שְׁאֵרִית הָעָם וַיָּבֹאוּ וַיַּעֲשׂוּ מְלָאכָה בְּבֵית־ה׳ צְבָאוֹת אֱלֹהֵיהֶם׃

The reason for all of these things is one traumatic experience, which had a lasting effect on halacha:

Josephus, Antiquities of the Jews XIV.9:

[Herod's father Antipater] committed Galilee to Herod, his next son, who was then a very young man, for he was but fifteen years of age. But that youth of his was no impediment to him; but as he was a youth of great mind, he presently met with an opportunity of signalising his courage; for finding that there was one Hezekiah, a captain of a band of robbers, who overran the neighboring parts of Syria with a great troop of them, he seized him and slew him, as well as a great number of the other robbers that were with him; for which action he was greatly beloved by the Syrians; for when they were very desirous to have their country freed from this nest of robbers, he purged it of them...

The connection: Herod hired a hitman to kill Ḥezekiah. (This is not in the text; but if you're the governor of a province, you don't do assassinations yourself! It's what David did too; and it's how the ultra-Orthodox in the 1990s applied the law of רודף to Rabin and justified his assassination.)

But now the principal men among the Jews, when they saw Antipater and his sons to grow so much in the good-will the nation bare to them, and in the revenues which they received out of Judaea, and out of Hyrcanus's own wealth, they became ill-disposed to him; for indeed Antipater had contracted a friendship with the Roman emperors; and when he had prevailed with Hyrcanus to send them money, he took it to himself, and purloined the present intended, and sent it as if it were his own, and not Hyrcanus's gift to them. Hyrcanus heard of this his management, but took no care about it; nay, he rather was very glad of it. But the chief men of the Jews were therefore in fear, because they saw that Herod was a violent and bold man, and very desirous of acting tyrannically; so they came to Hyrcanus, and now accused Antipater openly, and said to him, "... Herod, Antipater's son, hath slain Hezekiah, and those that were with him, and hath thereby transgressed our law, which hath forbidden to slay any man, even though he were a wicked man, unless he had been first condemned to suffer death by the Sanhedrin yet hath he been so insolent as to do this, and that without any authority from thee."...

[Hyrcanus] summoned Herod to come to his trial for what was charged upon him. Accordingly he came; but his father had persuaded him to come not like a private man, but with a guard... [so that] when Herod stood before the Sanhedrin, with his body of men about him, he affrighted them all, and no one of his former accusers durst after that bring any charge against him, but there was a deep silence, and nobody knew what was to be done.

When affairs stood thus, one whose name was Sameas, a righteous man he was, and for that reason above all fear, rose up, and said, "O you that are assessors with me, and O thou that art our king, I neither have ever myself known such a case, nor do I suppose that any one of you can name its parallel, that one who is called to take his trial by us ever stood in such a manner before us; but every one, whosoever he be, that comes to be tried by this Sanhedrin, presents himself in a submissive manner, and like one that is in fear of himself, and that endeavors to move us to compassion, with his hair dishevelled, and in a black and mourning garment: but this admirable man Herod, who is accused of murder, and called to answer so heavy an accusation, stands here clothed in purple, and with the hair of his head finely trimmed, and with his armed men about him, that if we shall condemn him by our law, he may slay us, and by overbearing justice may himself escape death. Yet do not I make this complaint against Herod himself; he is to be sure more concerned for himself than for the laws; but my complaint is against yourselves, and your king, who gave him a licence so to do. However, take you notice, that God is great, and that this very man, whom you are going to absolve and dismiss, for the sake of Hyrcanus, will one day punish both you and your king himself also."...

But when Hyrcanus saw that the members of the Sanhedrin were ready to pronounce the sentence of death upon Herod, he put off the trial to another day, and sent privately to Herod, and advised him to fly out of the city, for that by this means he might escape.

Sameas was probably Shemaya; the dates fit, but it could be Shammai.

Herod escapes, goes into exile, and a few years later comes back and kills everyone in the Sanhedrin apart from Sameas, crippling the structure of proto-rabbinic authority: not just people who sat in yeshiva, but also judges and so forth:

Babylonian Talmud, Bava Batra 3b בבא בתרא ג א
[Herod asked] who are they who teach "Appoint a king from among yourselves?" [Deut. 17:15] The rabbis! Therefore he arose and killed them all. אמר מאן דריש מקרב אחיך תשים עליך מלך רבנן קם קטלינהו לכולהו רבנן

In the Gemara the sole member of the Sanhedrin who survives is Shimon ben Shetach; Herod lets him off because he's married to the last of the Hasmoneans. In Josephus it's Sameas, who survives because of his stature. This is why Shemaya said "seek not undue intimacy with the government."

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