1. The Pharisees, interpreting the spirit of the Law, and acting under the elastic rule that “there is a time to serve the Lord by relaxing his law” (Ps. cxix. 126, Hebr.; Yoma 69a), permitted the desecration of the Sabbath in besieging a Gentile city “until it be subdued” (Deut. xx. 20), in accordance with Shammai’s interpretation (Shab. 19a). This definition was not new, as already the Maccabeans had taken advantage of it in fighting the enemy unceasingly, putting aside the observance of the Sabbath for the sake of God and of their national existence (I Macc. ii. 43, 44). Probably for the same reason (to facilitate war with the Gentile enemy), the Rabbis modified the laws of purification so as not to apply when one comes in contact with a corpse or human bones, or when one enters an enclosure containing a dead body. With regard to the text “This is the law when a man dieth in a tent” (Num. xix. 14), they held that only Israelites are men, quoting the prophet, “Ye my flock, the flock of my pasture, are men” (Ezek. xxxiv. 31); Gentiles they classed not as men but as barbarians (B. M. 108b). The Talmudic maxim is, “Whoever has no purification laws can not contaminate” (Naz. 61b). Another reason assigned is that it would have been utterly impossible otherwise to communicate with Gentiles, especially in the postexilic times (Rabinovitz, “Mebo ha-Talmud,” p. 5, Wilna, 1894). Patriotism and a desire to regain a settlement in the Holy Land induced the Rabbis, in order not to delay the consummation of a transfer of property in Palestine from a Gentile to a Jew, to permit the deed to be written on the Sabbath, an act otherwise prohibited (B.K. 80b).
2. The barbarian Gentiles who could not be prevailed upon to observe law and order were not to be benefited by the Jewish civil laws, framed to regulate a stable and orderly society, and based on reciprocity. The passage in Moses’ farewell address: “The Lord came from Sinai, and rose up from Seir unto them; he shined forth from Mount Paran” (Deut. xxxiii, 2), indicates that the Almighty offered the Torah to the Gentile nations also, but, since they refused to accept it, He withdrew His “shining” legal protection from them, and transferred their property rights to Israel, who observed His Law. A passage of Habakkuk is quoted as confirming this claim: “God came from Teman, and the Holy One from Mount Paran … He stood, and measured the earth; he beheld, and drove asunder the nations” (Hab. iii. 3-6); the Talmud adds that He had observed how the Gentile nations steadfastly refused to obey the seven moral Noachian precepts, and hence had decided to outlaw them (B. K. 38a).
It follows that the Gentiles were excepted from the general civil laws of Moses. For example, the Law provides that if a man’s ox gores and kills a neighbor’s ox, the carcass and the surviving ox shall be sold, and the proceeds divided between the respective owners (half-damages). If, however, the goring ox has been known to be dangerous and its owner has not kept watch over it, he shall pay full damages for the dead ox and take the carcass (Ex. xxi. 35-36, Hebr.). Here the Gentile is excepted, as he is not a “neighbor” in the sense of reciprocating and being responsible for damages caused by his negligence; nor does he keep watch over his cattle. Even the best Gentile laws were too crude to admit of reciprocity. The laws of Hammurabi provide: “If the ox has pushed a man, and by pushing has made known his vice, and the owner has not blunted his horn, has not shut up his ox, and that ox has gored a man of gentle birth and caused him to die, the owner shall pay half a mina of silver” (Johns, “Oldest Code of Laws,” § 251, Edinburgh, 1903). This price of a half-mina of silver was also the fixed fine for cutting down a tree (ib. Sec. 59). It appears that only a nominal sum was paid when a man not of gentle birth was killed, and even less when a neighbor’s ox was gored. The Mishnah, bearing such facts in mind, therefore declares that if a Gentile sue an Israelite, the verdict is for the defendant; if the Israelite is the plaintiff, he obtains full damages (B.K. iv. 3). It should be noted that in these tort cases public or sacred property was also an exception, for the reason that both are wanting in individual responsibility and in proper care. The principle was that the public could not be fined since it could not collect in turn. The Gemara’s reliance on the technical term “neighbor” [H] in the text as its justification for excluding both the Gentile and the public, is merely tentative.
The Talmud relates in this connection that the Roman government once commissioned two officers to question the Rabbis and obtain information regarding the Jewish laws. After a careful study, they said: “We have scrutinized your laws and found them just, save the clause relating to a Gentile’s ox, which we can not comprehend. If, as you say, you are justified by the term ‘neighbor,’ the Gentile should be quit when defendant as well as when plaintiff.” The Rabbis, however, feared to disclose the true reason for outlawing the Gentiles, as barbarians, and rested on the textual technicality in the Mosaic law, in accordance with which they had authority to act in all cases coming within their jurisdiction (B. K. 38a).
The Mosaic law provides for the restoration of a lost article to its owner if a “brother” and neighbor” (Deut. xxii. 1-3), but not if a Gentile (B. K. 113b), not only because the latter would not reciprocate, but also because such restoration would be a hazardous undertaking. The laws of Hammurabi made certain acts connected with “articles lost and found” a ground of capital punishment. “If the owner of the lost property has not brought witnesses identifying his lost property; if he has lied, or has stirred up strife, he shall be put to death” (Johns, l.c., § 11). The loser, the finder, or an intermediate person was put to death in certain stages of the search for the missing article (ib. §§ 9-13). The Persian law commanded the surrender of all finds to the king (B. K. 28b). As an illustration of the Gentile law and of Jewish magnanimity, the following is related in the Talmud: “Queen Helen lost her jewelry, and R. Samuel, who had just arrived in Rome, found it. A proclamation was posted throughout the city offering a certain sum of money as a reward for the restoration of the jewels within thirty days. If restored after thirty days, the finder was to lose his head. Samuel waited and restored the jewels after thirty days. Said the queen: ‘Hast thou not heard of the proclamation?’ ‘Yes,‘ answered Samuel, ‘but I would show that I fear not thee. I fear only the Merciful.’ Then she blessed the God of the Jews” (Yer. B. M. ii. 5).
Similarly, the mandate concerning the oppression of or withholding wages from a hireling brother or neighbor, or a domiciled alien (Deut. xxiv. 14-15) who observes the Noachian laws, is not applicable in the case of a Gentile. That is to say, a Gentile may be employed at reduced wages, which need not be paid promptly on the same day, but may be paid in accordance with the usual custom of the place. The question arose whether a Jew might share in the spoils gained by a Gentile through robbery. One Talmudic authority reasoned that the Gentile exerted himself to obtain the ill-gotten property much less than in earning his wages, to which the Mosaic law is not applicable; hence property seized by a Gentile, if otherwise unclaimed, is public property and may be used by any person. Another authority decided that a Jew might not profit by it (B. M. 111b).
R. Ashi decided that a Jew who sells a Gentile landed property bordering on the land of another Jew shall be excommunicated, not only on the ground that the Gentile laws do not provide for neighbors’ “boundary privileges” [H] but also because the Jewish neighbor may claim “thou hast caused a lion to lie on my border.” The ban shall not be raised unless the seller stipulates to keep the
[page 621] Jew free from all possible damage arising from any act of the Gentile (B. K. 114a). The same Ashi noticed in a vineyard a broken vine-branch bearing a bunch of grapes, and instructed his attendant, if he found that it belonged to a Gentile, to fetch it; if to a Jew, to leave it. The Gentile owner overheard the order, and asked: “Is it right to take from a Gentile?” Ashi replied: “Yes, because a Gentile would demand money, but a Jew would not” (ib., 118b). This was an adroit and sarcastic answer. In truth, Ashi coincided with the opinion of the authority stated above: namely, that, as the presumption is that the Gentile obtained possession by seizure, the property is considered public property, like unclaimed land in the desert (B. B. 54b). The consensus of opinion, however, was against this authority. R. Simeon the Pious quotes to show that legal possession was required even in dealing with the Seven Nations: And thou shalt consume [“eat the spoils”] all the people which the Lord thy God shall deliver thee” (Deut. vii. 6. Hebr.), meaning that Israel could claim the land only as conquerors, not otherwise (B. K. 113b).
In one instance a Gentile had the benefit of the technical term “neighbor,” and it was declared that his property was private. The Law provides that an Israelite employed in his neighbor’s vineyard or grainfield is allowed to pick there as much as he can eat while working (Deut. xxiii. 25-26). But since the employer in this case was a Gentile (i.e., not a “neighbor”), the Israelite was forbidden to eat anything without permission (B. M. 87b). As regards the property of this Gentile perhaps his title to it was not disputed, and it was therefore considered just as sacred as that of a Jew.