Halakhah sur Les Nombres 35:37

Sometimes the reasons for commandments are similar to negative commandments and are thought of as being included in that which should be counted by itself. And this is like its stating, "Then the first husband who sent her away shall not take her to wife again [...] you must not bring sin upon the land" (Deuteronomy 24:4): Its stating, "you must not bring sin upon the land," is the reason for the prohibition that preceded it. It is as if it is saying that if you do this, you will cause great loss to the land. An it is [also] like its stating, "Do not profane your daughter and make her a harlot, lest the land fall into harlotry" (Leviticus 19:29). For its stating, "lest the land fall into harlotry," is the reason. It as if it said that the reason of this prohibition is so that "the land not fall into harlotry." And so too, its stating, "you shall not make yourselves unclean therewith and become unclean with them" (Leviticus 11:43): After mentioning the prohibition of the various species that are forbidden to eat, it gave a reason for this and said, "you shall not make yourselves unclean" by eating them. It is as if it is saying that which caused this to be prohibited is the making of oneself impure. And to explain that which He, may He be blessed, said after He prefaced not taking ransom from a murderer, "You shall not defile the land" (Numbers 35:34) - they said in the Sifrei (Sifrei Bamidbar 160:13), "The verse is telling us that spilling blood defiles the land." Hence behold it is clear that this negative statement is the reason for the previous negative commandment, not something else. And likewise regarding that which is stated, "He shall not go outside the sanctuary and not profane" (Leviticus 21:12) - if he does go outside, he profanes. And someone besides us already erred about this principle as well, and counted all of these [as] negative commandments, without observation. However whoever counted them will be embarrassed when they ask him and say, "What thing does this negative commandment prohibit?" And he will not have anything to answer at all. So through this, it becomes clear that it is not be counted. And this is what we intended to clarify about this principle.

And also of this type is His, may He be exalted, saying that a betrothed maiden that is promiscuous is [killed] by stoning; but [if she is] the daughter of a priest, by burning - which are the filling out of the details of the law of [adultery with] a married woman. And everyone, who I have heard of already, erred in this - counting a married woman as a commandment, a betrothed maiden as [another] commandment and the daughter of a priest as [yet another] commandment, when the matter is not like this. Rather it is as I shall explain. And that is that His, may He be exalted, saying, "you shall not commit adultery" (Exodus 20:13), is a commandment from the tally of the commandments - and the tradition came that this negative commandment is the prohibition of the married woman. Afterwards, Scripture explained that one who violates this negative commandment is killed; and that is its saying, "they shall surely be killed, the adulterer and the adulteress" (Leviticus 20:10). Afterwards, Scripture filled in this detail and the conditions of this issue and judgement. So it stipulated conditions and said that that which is stated - "they shall surely be killed, the adulterer and the adulteress" - has distinctions: If she was a married woman that was the daughter of a priest, she is burned; if she was a betrothed virgin maiden, she is stoned; and if she was married but was not the daughter of a priest, she is strangled. But it is not that the stipulations of the laws of [its] death penalty expand it into several commandments; for we have not exited the prohibition of the married woman in all of this. And in Sanhedrin (Sanhedrin 51b:10), they said in explanation, "All were included in 'the adulterer and the adulteress': [Then] the verse singled out the daughter of an Israelite for stoning and the daughter of a priest for burning." With this, they meant that regarding the prohibition of a married woman, all are included in that which Scripture said about them, "they shall surely be killed, the adulterer and the adulteress" - however Scripture differentiated about this death, and had some people to be burned and some of them to be stoned. And were it appropriate to count the detail of a commandment when it is written in the Torah, we would have been required to not list one who kills a soul by mistake being exiled as a single commandment, since Scripture has already detailed this commandment (Numbers 35:16-28). So we would have also counted the statement of Scripture, "But if he strikes him with a metal instrument," as one commandment. And the second commandment would have been its saying, "And if he struck him with a stone tool." And the third commandment would have been, "Or struck him with a wooden instrument." And the fourth commandment would have been its saying, "The blood-avenger shall put the killer to death." And the fifth would have been its saying, "Or if he pushed him with hatred." And the sixth would have been its saying, "or hurled something at him on purpose." And the seventh would have been its saying, "Or if he struck him with his hand in enmity." And the eighth would have been its saying, "But if suddenly without enmity." And the ninth would have been its saying, "or hurled any object at him unintentionally." And the tenth would have been, "Or any deadly object of stone without seeing." The eleventh would have been, "and he dropped it upon him and he died, though he was not an enemy of his." The twelfth would have been, "And the congregation shall protect the killer." The thirteenth would have been, "and the congregation shall bring him back to his city of refuge." The fourteenth would have been, "and there he shall remain until the death of the high priest." The fifteenth would have been, "But if the killer surely goes outside." The sixteenth would have been, "and after the death of the high priest, the killer may return." And had we done this with each and every commandment, the number of commandments would have added up to more than two thousand. And the damage [of doing so] is clear, since they are all details of the topic. But the commandment that is counted is the law of one who kills a soul by mistake, and that is the law about which we have been instructed to evaluate the laws and details that are written about it. And likewise did God call them, regulations; and He did not call them, commandments - but said (Numbers 35:24), "And the congregation shall judge between the killer and the blood-avenger according to these regulations."

And also of this type is His, may He be exalted, saying that a betrothed maiden that is promiscuous is [killed] by stoning; but [if she is] the daughter of a priest, by burning - which are the filling out of the details of the law of [adultery with] a married woman. And everyone, who I have heard of already, erred in this - counting a married woman as a commandment, a betrothed maiden as [another] commandment and the daughter of a priest as [yet another] commandment, when the matter is not like this. Rather it is as I shall explain. And that is that His, may He be exalted, saying, "you shall not commit adultery" (Exodus 20:13), is a commandment from the tally of the commandments - and the tradition came that this negative commandment is the prohibition of the married woman. Afterwards, Scripture explained that one who violates this negative commandment is killed; and that is its saying, "they shall surely be killed, the adulterer and the adulteress" (Leviticus 20:10). Afterwards, Scripture filled in this detail and the conditions of this issue and judgement. So it stipulated conditions and said that that which is stated - "they shall surely be killed, the adulterer and the adulteress" - has distinctions: If she was a married woman that was the daughter of a priest, she is burned; if she was a betrothed virgin maiden, she is stoned; and if she was married but was not the daughter of a priest, she is strangled. But it is not that the stipulations of the laws of [its] death penalty expand it into several commandments; for we have not exited the prohibition of the married woman in all of this. And in Sanhedrin (Sanhedrin 51b:10), they said in explanation, "All were included in 'the adulterer and the adulteress': [Then] the verse singled out the daughter of an Israelite for stoning and the daughter of a priest for burning." With this, they meant that regarding the prohibition of a married woman, all are included in that which Scripture said about them, "they shall surely be killed, the adulterer and the adulteress" - however Scripture differentiated about this death, and had some people to be burned and some of them to be stoned. And were it appropriate to count the detail of a commandment when it is written in the Torah, we would have been required to not list one who kills a soul by mistake being exiled as a single commandment, since Scripture has already detailed this commandment (Numbers 35:16-28). So we would have also counted the statement of Scripture, "But if he strikes him with a metal instrument," as one commandment. And the second commandment would have been its saying, "And if he struck him with a stone tool." And the third commandment would have been, "Or struck him with a wooden instrument." And the fourth commandment would have been its saying, "The blood-avenger shall put the killer to death." And the fifth would have been its saying, "Or if he pushed him with hatred." And the sixth would have been its saying, "or hurled something at him on purpose." And the seventh would have been its saying, "Or if he struck him with his hand in enmity." And the eighth would have been its saying, "But if suddenly without enmity." And the ninth would have been its saying, "or hurled any object at him unintentionally." And the tenth would have been, "Or any deadly object of stone without seeing." The eleventh would have been, "and he dropped it upon him and he died, though he was not an enemy of his." The twelfth would have been, "And the congregation shall protect the killer." The thirteenth would have been, "and the congregation shall bring him back to his city of refuge." The fourteenth would have been, "and there he shall remain until the death of the high priest." The fifteenth would have been, "But if the killer surely goes outside." The sixteenth would have been, "and after the death of the high priest, the killer may return." And had we done this with each and every commandment, the number of commandments would have added up to more than two thousand. And the damage [of doing so] is clear, since they are all details of the topic. But the commandment that is counted is the law of one who kills a soul by mistake, and that is the law about which we have been instructed to evaluate the laws and details that are written about it. And likewise did God call them, regulations; and He did not call them, commandments - but said (Numbers 35:24), "And the congregation shall judge between the killer and the blood-avenger according to these regulations."

(16) And sometimes he transgresses also the issur of flattery, which is to many Geonim (e.g., HaRe'em, Baal Hatosfoth, and Hagaon R. Shlomoh ben G'virol) an absolute negative commandment, (viz. Bamidbar 35:33): "And you shall not flatter [the men of] the land." That is, if his intent in speaking lashon hara and rechiluth is to flatter the listener, whom he knows to bear hatred to the one spoken about, and thereby, to find favor in his eyes — an egregious sin — is it not enough that he does not fulfill the mitzvah of reproof (a positive commandment in the Torah), to reprove him for the hatred he bears his friend, that he also strengthens the hatred that already exists among them! And through him [the speaker], he [the listener] will persist in his wrong more and more, so that more quarrels and wrongs will result (G–d forbid)!
And know that this [the following] sin (in our many sins) is widespread. That is, when one speaks demeaningly of his friend, (often,) the listener, knowing that what is being said is unfounded, nevertheless nods his head [in agreement] and he, too, "smoothes over" the thing with his tongue, adding some words of taint. For the speaker is sometimes a man of means, or the like, from whom he receives favors, or who he fears will regard him as unwise, or the like [for remaining silent]. And, therefore, the yetzer will entice him, too, to concur in this. But know, my brother, that this, too, is essentially a transgression of the negative commandment of flattery — even if he adds but a few words — as is explained in the Be'er Mayim Chayim.
And in this regard it is written (Mishlei 23:2): "And put a knife to your throat [against speaking lashon hara] if you are a man of spirit." And one must rather expose himself to danger than bring his soul to such a sin. According to the Torah, every man under such circumstances must, in any event, strengthen himself not to abet him [the speaker] even by so much as one movement which would cause it to appear that he concurs with what he is saying. And in this connection we can understand the words of Chazal (Eiduyoth 5:6): "It is better to be called a fool all of one's days than to be wicked one moment before the Almighty." And this, even if he knows that his words of reproof will not be accepted by the speaker; for, otherwise, he certainly must reprove him for this, too (as will be explained, G–d willing, in Hilchoth Lashon Hara, Principle VI).

If a Seifer Torah is found to be defective due to an error, if the error is a serious one we are not permitted to read from it, and another Seifer Torah must be taken out [of the ark] (see Chapter 79: 10). What constitutes a serious error? For example, [if there is] one letter too many, or one missing, or even if one letter is exchanged [with another] and as a result the pronunciation is changed, for example [if the word] tomim (twins)¹Genesis 25:24, 38:27. [is written with an added aleph, and would now be read] te'omim, or the word migresheihen²Numbers 35:3, 35:7. [with a nun at the end] [would be written] migresheihem [ending in a mem], even though the meaning of the word is the same, [i. e., their ground], nevertheless, since the pronunciation is not the same, it is considered a serious error. Likewise, if the error is such that the word could be pronounced, as though it were written correctly, but it was written in a way that changes its meaning; for instance, in the [weekly] portion Terumah³Exodus 25:10. [in the phrase] amah vacheitzi rochbo, the word rochbo (with a vav at the end) was instead written rochbah (with a hei at the end) although (even with the erroneous spelling) the beis can be pronounced with a cholam -o- (vocalized rochbo) nevertheless, since, as it is written [now] it is an error, because the meaning of the word is changed, it is also considered a serious mistake. And if the error is of the kind that it changes neither the pronunciation nor the meaning [of the word],⁴If massoretic rules regarding exceptions in the size or shape of certain letters are not complied with in the writing, no other Seifer Torah has to be taken out. (Mishnah Berurah 143:27) for example, if instead of the correct [spelling] of the word avosam with a vav after the beis, it is found [written] without a vav, or vice versa, or, if instead of the correct [spelling of a word] with an auxiliary yud [to indicate the plural], as for instance, if the word avoseichem is found written without a yud, or vice versa, or any similar case, we do not take out another Seifer Torah, (because [nowadays] our Sifrei Torah are not so exact that we can say [with certainty] that the other one will be more fit.) But if a Yud is missing that is part of the root [of the word], if, for instance, [in the verse] mah lach Hagar al tire'i,⁵Genesis 21:17. [what's the matter Hagar? Do not fear]. the word (tire'i) [would be written] without a yud after the tav, or if [in the verse] al tira Avraham [do not fear, Avraham]⁶Genesis 15:1. the word tira would be written [without a Yud], then another Seifer Torah should be taken out.

And that is that He commanded us to give cities to the Levites to dwell, since they do not have a portion and inheritance in the Land. And that is His, may He be blessed, saying, "And they shall give to the Levites [...] cities to dwell" (Numbers 35:1). And these cities of the Levites are cities of refuge that provide a shelter according to the description specified in Tractate Makkot. (See Parashat Masei; Mishneh Torah, Sabbatical Year and the Jubilee 13.)

He prohibited the taking of ransom from an unintentional killer, so as to exempt him from exile. Rather he must be exiled under any circumstances. And that is His saying, "And you shall not take ransom for him who fled to the city of his refuge" (Numbers 35:32). And the regulations of this commandment have been explained in Makkot. (See Parashat Masei; Mishneh Torah, Murderer and the Preservation of Life 1.)

He prohibited the taking of ransom from an intentional murderer. Rather he must be killed under any circumstances. And that is His saying, "And you shall not take ransom for the soul of a murderer who is liable for death" (Numbers 35:31). And the regulations of this commandment have already been explained in Makkot. (See Parashat Masei; Mishneh Torah, Murderer and the Preservation of Life 5.)

To not change the open areas of the Levites: Not to change the open areas of the cities of the Levites and their fields - meaning to say, that a city may not be made into an open area, nor an open area into a city, a field into an open area, nor an open area into a field. And the law is the same about an open area (another textual variant: field) into a city and a city into an open area (another textual variant: field) - that one may not change anything about their content. And this matter is well-known, as the Torah commanded (Numbers 35:2-7) that the other tribes cede certain cities to the tribe of Levi; and these are forty-eight cities, with the six cities of refuge that were among them. And it also commanded that there be in these cities a thousand ells of open area - meaning a place open for space and beauty for the city; and two thousand ells beyond that for the sake of fields and vineyards, and this is also of the beauty of the city and from that which it needs, as it is explained in Sotah 27b. And this prevention comes about this, that these matters never be changed. And concerning this it states (Leviticus 25:34), "And the fields of open areas of their cities shall not be sold" - meaning, shall not be changed. As it is not speaking about actual selling, since it is explicitly written in Scripture (Leviticus 25:32), "a perpetual redemption shall there be for the Levites" - which implies that they are permitted to sell them.

From the laws of the commandment is that which, they, may their memory be blessed, said (Makkot 12a) [that] beyond these three thousand ells that we said above that is of open space, fields and vineyards, we give to each city a cemetery, as it is stated (Numbers 35:3), "and their open spaces shall be for their beasts and their property and all their animals (chayatam)" - and the explanation came about this, that it was was given for the living (chayim), and not for burial. And that which they also said (Arakhin 33b) [about] priests or Levites that sold one of their fields or a house even in a walled city, [it can] always be redeemed, even from the hand of what is consecrated, as it is stated (Leviticus 25:33), "a perpetual redemption shall there be for the Levites." And [in the case of] an Israelite who inherits [property] from his mother's father who was a Levite, behold he may redeem like the Levites. And the rest of its details are elucidated at the end of Arakhin.

The commandment on Israel to give cities within which the Levites may dwell, and they shelter: That Israel was commanded to give cities to the Tribe of Levi to dwell therein, since they do not have a portion in the Land, as it is stated (Numbers 35:2), "Command the Children of Israel, and they shall give to the Levites from the inheritance of their holding, cities to dwell." And it is stated at the end of the section (Numbers 35:7). "All of the cities that you shall give to the Levites are forty-eight cities." And from these forty-eight cities of the Levites, there were cities that were specified to be a refuge for the killer. However, all of them would shelter him. And with God's help, we will write in the Order of Shoftim in the commandment of the cities of refuge (Sefer HaChinukh 520), what is [the difference] between those specified for this and the others. And they would shelter him in well-known ways, as is explained in Scripture. And it is elucidated in Tractate Makkot 10a.

The commandment on Israel to give cities within which the Levites may dwell, and they shelter: That Israel was commanded to give cities to the Tribe of Levi to dwell therein, since they do not have a portion in the Land, as it is stated (Numbers 35:2), "Command the Children of Israel, and they shall give to the Levites from the inheritance of their holding, cities to dwell." And it is stated at the end of the section (Numbers 35:7). "All of the cities that you shall give to the Levites are forty-eight cities." And from these forty-eight cities of the Levites, there were cities that were specified to be a refuge for the killer. However, all of them would shelter him. And with God's help, we will write in the Order of Shoftim in the commandment of the cities of refuge (Sefer HaChinukh 520), what is [the difference] between those specified for this and the others. And they would shelter him in well-known ways, as is explained in Scripture. And it is elucidated in Tractate Makkot 10a.

To not kill someone liable before he is brought to justice: That we were prevented not to kill the sinner when we see him doing a sinful act for which he is liable the death penalty, before we bring him to court. Rather, we are obligated to bring him before the court and we bring witnesses in front of [the judges] and they sentence him to what he is liable, as it is stated (Numbers 35:12), "and the killer shall not die before his standing, etc." And the language of the Mekhilta (Sifrei Zuta on Numbers 35:12) is \'Perhaps they should kill him from when he killed or was adulterous? [Hence] we learn to say, 'and the killer shall not die before his standing, etc.'" And even if the Great Court saw him kill, they would all be witnesses and take their testimony to another court to judge him. And they also said in Mekhilta (Sifrei Zuta on Numbers 35:12), "Behold, a community that saw one kill a soul, perhaps they should kill him before he stands in court? [Hence] we learn to say, 'and the killer shall not die before his standing.'"

It is from the roots of the commandment [that] since the matter of capital punishment is a very weighty thing (Rosh Hashanah 26a) which requires the greatest of precision, and the community has been commanded to save the accused with everything that is fit to save him for his sake - not that they pervert the judgement in order to save him, God forbid, and like they, may their memory be blessed, expounded (Rosh Hashanah 26a, connecting the two phrases in Numbers 35:24-25), "And the community shall judge, And the community shall save," meaning to say that they need to search for his merit and if he has a merit, they should save him, and if not, he should be killed - therefore, we were warned that the judgement should at the very least be brought before the court. And the witnesses that saw the thing with their eyes should never judge him, as maybe from their seeing the matter, they will not be able to search for his merit, as their hearts will arouse them to render him guilty no matter what.

The commandment on the court to send one who smites a soul inadvertently from his city to the cities of refuge and upon the killer himself to go there: That the courts of Israel were commanded to send one who smites a soul inadvertently from his city and restore him in the cities of refuge, as it is stated (Numbers 35:25), "and the community shall restore him to his city of refuge, etc. and there he shall remain until the death of the high priest." And also the smiter, he too, is included in this positive commandment, as it is stated about him (Numbers 35:28), "For he shall dwell in his city of refuge until the death of the high priest."

The commandment on the court to send one who smites a soul inadvertently from his city to the cities of refuge and upon the killer himself to go there: That the courts of Israel were commanded to send one who smites a soul inadvertently from his city and restore him in the cities of refuge, as it is stated (Numbers 35:25), "and the community shall restore him to his city of refuge, etc. and there he shall remain until the death of the high priest." And also the smiter, he too, is included in this positive commandment, as it is stated about him (Numbers 35:28), "For he shall dwell in his city of refuge until the death of the high priest."

That the witness not issue a ruling in the case that he is testifying about in capital punishments: That the witness not speak about the case that he is testifying about in capital punishments, except for his saying his testimony alone - and even though he is educated and wise; as the witness is not made into a judge in capital punishments, as it is stated (Numbers 35:30), "and a single witness should not respond about a soul for death." And Rambam, may his memory be blessed, wrote (Sefer HaMitzvot LaRambam, Mitzvot Lo Taase 291), "And the negative commandment about this matter is repeated, as it is stated (Deuteronomy 17:6), 'he shall not be killed by the mouth of one witness' - meaning to say, he shall not be killed by the ruling of the witness. And they said in Sanhedrin 33b-34a, '"And a [...] witness should not respond about a soul," whether for innocence or whether for guilt.' And they explained that the reason for this is that it appears as if he is biased in his testimony. And this matter that he cannot respond - whether for innocence or whether for guilt - is only with capital punishments."

Not to take ransom to save the murderer from the death penalty: Not to take ransom, meaning to say, redemption [money] - and even all the money in the world - to save the soul of a murderer, such as not to kill him, as it is stated (Numbers 35:31), "You shall not take ransom for the soul of a murderer who is guilty for death."

Not to take ransom from one liable for exile to exempt him from exile: Not to take ransom from one liable for exile because he killed inadvertently, to exempt him form exile, as it is stated (Numbers 35:32), "And you shall not take ransom from the one who fled to his city of refuge to return to dwell in the land." And according to this literal meaning, it appears that 'the one who fled' is [in the past], meaning to say, do not take ransom, from one who has fled to his city of refuge, to return to dwell in the land of his ancestors' dwelling.

From the laws of the commandment is that which they, may their memory be blessed, said (see Mishneh Torah, Laws of Murderer and the Preservation of Life 8:2, 4) [regarding] these six cities that Moshe separated three of them in Transjordan and Yehoshua separated three of them in the Land of Canaan, but the ones of Moshe did not shelter until the three of Yehoshua were separated. And if so, why did Moshe separate them? He said, "[If] a commandment comes to my hand, I will fulfill it." And at the time of the King Messiah, we will add another three, as it is stated (Deuteronomy 19:9), "and you shall further add for yourself three cities upon these three, etc." And they, may their memory be blessed, said (Mishneh Torah, Laws of Murderer and the Preservation of Life 8:10) that all of the cities of the Levites would shelter, as it is stated (Numbers 35:6-7), "and upon them you shall give forty-two cities. All of the cities that you shall give to the Levites, etc." - Scripture compared all of them (the six cities of refuge and the forty-two additional ones). But there is this difference between them - that the cities of refuge shelter, whether knowingly (when the inadvertent killer is seeking refuge there) or not knowingly; whereas the cities of the Levites only shelter knowingly. [Also] a murderer that lives in a city of refuge does not [pay] rent; whereas in the other cities, he [pays] rent. And [also that which] they, may their memory be blessed, said (Bava Batra 100b) that the width of the path [to the] city of refuge is thirty-two ells; and that on the fifteenth of Adar, the court would send agents to fix the paths - and if they were negligent in the matter, it is as if they spilled blood. And [also that which] they, may their memory be blessed, said (Makkot 11b) that the perimeter of any city that shelters, [also] shelters. And the rest of the details of the commandment are in Sanhedrin, in Makkot, in Shekalim and in Sotah.