“And in like manner the wise man himself may, on account of his honour, excommunicate an unlearned man who has treated him with contumely, and there is no need of witnesses nor admonition. And the excommunicate person is not to be absolved until he appease the wise man. But if the wise man die, three persons come and absolve him. If, however, the wise man wish to pardon, and not excommunicate him, the power is in his own hand.” (Hilchoth Talmud Torah, c. vi. 12.) From this law we see that the restoration of rabbinic power would be the most oppressive system of government ever devised. Every learned man would be a petty tyrant, constituting both judge and jury in his own person, and able, at his own caprice, to inflict a severe punishment. The most absolute aristocracy of the feudal times never dared to assume or exercise a power so monstrous and so oppressive. No priesthood, even in the darkest times, ever claimed such personal authority as is here given to every individual rabbi. It is true that he may, if he please, forgive the unfortunate offender, but it is much to be feared that such absolute power would in most cases be too strong a temptation to the frail sons of men. And at all events the principle is utterly inconsistent with wise legislation, and most dangerous to the liberty of the poor and unlearned; for the reader will observe that it is only an unlearned man, an “am-haaretz,” who may be dealt with in this summary manner. And this is another proof that the religion of the oral law is a religion devised for the advantage of the rich and learned, but regardless of the spiritual and temporal welfare of the lower classes. For the learned and the great the law is very different:—
חכם זקן בחכמה וכן נשיא או אב ב׳׳ד שסרח אין מנדין אותו בפרהסיא לעקלם אלא אם כן עשה כירבעם בן נבט וחביריו אבל כשחטא שאר חטאות מלקין אותו בצנעה שנאמר וכשלת היום וכשל גם נביא עמך לילה אע׳׳פ שכשל כסהו בלילה , ואומרים לו הכבד ושב בביתך וכן כל ת׳׳ח שנתחייב נידוי אסור לב׳׳ד לקפוץ ולנדותו במהרה ׃
“A wise man, old in wisdom, or a prince, or a president of a tribunal, who has sinned, is never to be excommunicated publicly, unless he have done as Jeroboam, the son of Nebat, and his companions. But when he commits other sins, he is to be flogged in private. For it is said, ‘Therefore shalt thou fall in the day, and the prophet also shall fall with thee in the night,’ (Hos. iv. 5,) i.e., although he fall, cover him as it were with the night. And they say to him, ‘Honour thyself, and abide in thy house.’ (2 Kings xiv. 10.) In like manner, when a disciple of a wise man makes himself guilty of excommunication, it is unlawful for the tribunal to be too quick, and to excommunicate him hastily.” (Ibid. c. vii. 1.) The rabbies have endeavoured to justify this different legislation for the learned and unlearned by a verse of the Bible, but their interpretation of that verse is quite erroneous. When God says, “Therefore shalt thou fall in the day, and the prophet shall also fall with thee in the night,” he is not speaking of the learned and unlearned, nor of the different way in which their sins were to be punished, but of the destruction which was coming upon Israel, as may be seen in Kimchi’s Commentary. He interprets the verse thus—
וכשלת היום אמר כנגד ישראל בעבור מעשיך תכשל ותפול , היום ר׳׳ל חזמן הזה בקרוב תבוא מפלתך , וכן וחרה אפי בו ביום ההוא , ביום ההוא שורש ישי והדומים להם , ענינם עת וזמן , וכשל גם נביא עמך לילה נביא שקר המתעה אותך יכשל עמך כמו האדם נכשל בלילה בחשכה וכן תרגם יונתן ׃
“Therefore shalt thou stumble in the day.” This refers to Israel, and means on account of thy deeds thou shalt stumble and fall. This day; that is, in this time; thy fall shall soon come. And so we read, “Then my anger shall be kindled against them in that day.” (Deut. xxxi. 17.) And again, “In that day there shall be a root of Jesse,” (Isaiah xi. 10,) where day means time and period. And the prophet also shall fall with thee in the night, that is, the false prophet who deceiveth thee shall stumble with thee, as men stumble in the night in darkness; and so the Targum of Jonathan has it. (Kimchi, Comment. in Hos. iv. 2.) Kimchi and Jonathan, then, both testify that the oral law gives a false interpretation of this verse. This is in itself rather awkward for a law that professes to have been given by God, but still more so when it is made the basis of most unjust and partial legislation, to save the learned from the punishment which an unlearned man would have in similar circumstances to suffer. No one can deny that the learned and unlearned are here placed on very unequal terms. If an unlearned man provoke a rabbi, he may be excommunicated by that individual without either judge or jury, or even the form of a trial. But if a learned man makes himself liable to the same punishment, even a court of justice has not the power to pronounce the sentence. Who can doubt that the rabbies made these laws for their own convenience? Can any one believe that God has given this law, which makes the learned a privileged class of persons, who, though guilty of the same offence as the working classes, is to be spared, whilst they are to be punished? God is no respecter of persons, and therefore no such law can be from him.
The extreme injustice of this mode of legislation will appear still more from considering the nature of the punishment:—
מהו המנהג שינהג המנודה בעצמו ושנוהגין עמו , מנודה אסור לספר ולכבס כאבל כל ימי נידויו , ואין מזמנין עליו , ולא כוללין אותו בעשרה לכל דבר שצריך עשרה , ולא יושבין עמו בארבע אמות , אבל שונה הוא לאחרים ושונין לו , ונשכר ושוכר , ואם מת בנדויו בית דין שולחין ומניחין אבן על ארונו , כלומר שחן רוגמין אותו , לפי שהוא מובדל מן הציבור ואין צריך לומר שאין מספידין אותו ואין מלוין את מטתו ... מי שישב בנידויו שלשים יום ולא בקש להתירו מנדין אותו שנייה ישב שלשים יום אחרים ולא בקש להתירו מחרימין אותו ׃
“How is an excommunicate person to conduct himself, and how are others to conduct themselves towards him? It is unlawful for an excommunicate person, as for a mourner, to trim his heard or hair, or to wash all the days of his excommunication; neither is he to be associated in pronouncing the benedictions; neither is he to be reckoned as one of ten, wherever ten persons are required; neither may any one sit within four ells of him. He may however teach others and be taught. He may hire and be hired. But if he die in his excommunication, the tribunal send and lay a stone upon his coffin to signify that they stone him because he is separated from the congregation. And it is unnecessary to say that he is not to be mourned for, and that his funeral is not to be attended.... Whosoever remains thirty days in his excommunication without seeking to be absolved, is to be excommunicated a second time. If he abide thirty days more without seeking absolution, he is then to be anathematized.” (Hilchoth Talmud Torah, ibid.) This, then, is the punishment which a learned man has it in his power to inflict at will. He may deprive him of the comforts of cleanliness and perhaps injure his health. He may hold him up to the public scorn by separating him by four ells from all decent people. He may heap obloquy upon his death and deprive him of a respectful burial, or if the man survive under the public contempt, and refuse to give the rabbi satisfaction, he will be anathematized, and his prospects for this world, at least, irretrievably ruined. The law respecting the anathematized person is this:—
אינו שונה לאחרים ואין שונין לו אבל שונה הוא לעצמו שלא ישכח תלמודו ואינו נשכר ואין נשכרין לו , ואין נושאין ונותנין עמו , ואין מתעסקין עמו אלא מעט עסק כדי פרנסתו ׃
“He is not to teach others nor to be taught, but may learn by himself that he may not forget the learning. He is not to be hired, nor to hire. Men may have no dealings with him, nor any business except a little that he may get a livelihood.” Now then suppose that an unlearned man does or says something, which a rabbi interprets as contempt, he is first excommunicated. If, in the consciousness of innocence, he refuses to ask for the rabbi’s forgiveness, he is at last anathematized, and all his business stopped, and all this is done to him because he is an unlearned man. He is himself to be dishonoured, his business ruined, and he himself to die of a broken heart, not because he has committed some grievous crime, but because he has been wanting in respect either to the rabbi’s person or his words. The most absolute autocrat never made a law more despotic.