This mishnah is a continuation of the last one about lineage.
Rabbi Tarfon uses the rules in the previous mishnah to find a means by which a mamzer can have a child that is not a mamzer. A mamzer is allowed to marry a slave woman, even though a non-mamzer cannot. If the mamzer owns the slave woman, then he owns the child. If he frees the child the child loses his mamzer status and becomes a regular Israelite.
Rabbi Eliezer, however, holds that such a “trick” does not work. The status of the child is “slave mamzer.” When his father/master frees him, he is no longer a slave but he is still a mamzer.
The question about R. Tarfon is—is his rule something that one can do, meaning he was giving advice, or was it a case of if a mamzer married a slave, then the mamzer can be purified? Is one allowed ab initio to have a child with a slave woman in order to purify one’s line? Or is this only a case of ex post facto—he had a child with a slave woman against the rules but now his lineage is rid of the stigma?
In the baraita the sages say to R. Tarfon that he has found a way to purify male mamzerim but not female mamzerim. This seems to reflect that R. Tarfon’s rule was only ex post facto, for if it were ab initio permitted to do so, he would have said that a mamzeret can also marry a male slave and when the child is freed, the child’s lineage would be non-mamzer.
The problem is that male slaves have no lineage. Meaning that according to halakhah, their children are not even considered theirs. Thus there is no solution for a mamzeret.
R. Simlai seems to have advice he could give his host on how to purify the lineage of his children. This implies that R. Tarfon was giving an ab initio rule—a way for mamzerim to purify their lines intentionally. Not just a way to purify them if they did something unintentionally and against the rules.
Even if the rule was only ex post facto, R. Simlai could have found a way to purify his host’s line. First the host would have to steal something and then be sold in order to recover the debt. Then he could marry a Canaanite slave and if his master frees the children, they would no longer be mamzerim. Yes, you do have a case here where the Talmud imagines a rabbi advising someone to steal.
The problem is that by R. Simlai’s time, there was no such thing as a Hebrew slave. That practice was not observed already by mishnaic times. So the only advice R. Simlai could have given him was to have a child with a slave woman (this is prohibited) and then free the slave. This means that R. Tarfon’s rule is ab initio. He would allow one to have a child with a slave woman in order to get rid of the stigma on his lineage.
And indeed the halakhah follows R. Tarfon. Thus there is actually a way for mamzerim to remove the stigma from their lineage. However, it is a drastic one, one that could not be observed in a time in which slavery has been outlawed.
R. Eliezer rules that the child of a slave and a mamzer is a slave mamzer. When freed, the child remains a mamzer. Our sugya explains his reasoning.
R. Elazar explains that R. Eliezer reads the word “of his” as implying that we follow the mamzer’s lineage forever. There is no way to get rid of that genealogical flaw.
The rabbis read the word “of his” as referring to a case where an Israelite marries a mamzeret. We might have thought that in such a case the lineage follows the father’s house and the child is not a mamzer. They read the word “of his” as excluding such a person from entering the community of Israelites. He does not follow his father’s lineage.
R. Eliezer responds that once we’ve made one exception and said that although we usually follow the father, if the mother is a mamzeret the child is also a mamzeret, so too we can make an exception about the verse concerning who is a slave. Although the child of a female slave is a slave, this does not mean that he is not also a mamzer.
The other rabbis do not think that non-Jewish slaves can be traced after their father, just like it is impossible to determine the father of an animal. So the child of a female slave is a slave, with no genealogical connection to the father. The child is not a mamzer slave and when freed, will not be a mamzer.
That’s it folks—the end of the third chapter of Kiddushin. Get ready for chapter four. It’s a bit of a wild one!
This mishnah introduces a concept that was very important in marital law in the mishnaic/talmudic times and continued to be a prominent factor in the choice of spouse throughout Jewish history: genealogical class. In Hebrew this is called: yichus. There are some genealogical “classes” who may not marry each other (Israelites and mamzerim, priests and converts). As I have stated before, in our modern society it is hard to grasp the importance of such categories in the ancient world. Until recently it was believed that a person is qualitatively reflected in their class; belonging to a social/religious class is an integral part of one’s identity. However, we should realize that in rabbinic halakhah class structure is only legally relevant to choice of marriage, and occasionally to positions of leadership. When it comes to other elements of society, Jews seem to have mingled relatively freely. The rabbis recognized well that a person’s integrity, wisdom and virtue did not depend upon his social class. Nevertheless, it was an important criterion in choosing a spouse.
The mishnah attributes the separation of the Israelites into ten genealogical classes to the return to Zion from the Babylonian exile in the time of Ezra and Nehemiah. It is clear from the book of Ezra that genealogical lineage was an important issue to the authors of the book and to the leaders of that time period. Ezra demands that the men send away their foreign born wives. In the lists of returning exiles lineages are listed and there are verses which show that priests who couldn’t demonstrate their lineage were denied their priestly rights. In other words, although this mishnah may contain what is basically a legend, in may be based on some historical recollections.
According to the mishnah, which is probably legend, lineage was so important to Ezra that when he gathered up the exiles and brought them back to the land of Israel, he separated them into classes. When they returned to Israel, each person would therefore know their proper status.
Most of the classes mentioned in this mishnah should be familiar by now. Natinim are descendants of Temple slaves, and are actually mentioned in the books of Ezra and Nehemiah (see for instance Ezra 8:20 and Nehemiah 7:62). Halalim are the children of disqualified priests. Hushlings and foundlings will be explained in tomorrow’s mishnah.
Here the mishnah lists who may marry whom. Subsequent mishnayot will clarify some of these statements. For now we should note that converts can marry Israelites and can marry mamzerim. Other sages hold that converts may not marry mamzerim. There is also some debate over whether certain types of converts may even marry priests.
A shtuki or a hushling is a kid who knows who his mother is, but doesn’t know who his father is. The word “shtuki” comes from the word for silence. When you ask the kid who his father is he is quiet because he doesn’t know.
An asufi or a foundling is a kid found in the streets who doesn’t know who his parents are. The word “asufi” comes from the word to be gathered, because he is gathered in from the streets.
Abba Shaul would call the shtuki a b’duki (a checked one). The different name reflects a different halakhic position. According to Abba Shaul the child’s mother is believed to testify that the father is so-and-so. This is according to Rabban Gamaliel and Rabbi Eliezer in Ketubot 1:8-9.
Today’s section begins to explicate the mishnah.
The mishnah uses the word “went up” to teach that Eretz Yisrael is higher than all other countries and that the Temple is the highest point in Israel.
Of course, we know today that this is not literally true. But as someone who rides his bike quite a bit around the hills of Jerusalem, I can tell you it’s not flat either. And Jerusalem is pretty high up there, although in reality Hebron is even higher.
Deuteronomy 17:8 uses the phrase “go up” to describe going to the Temple. This demonstrates that the Temple is the highest point in Eretz Yisrael.
Jeremiah uses the phrase brought up to describe people coming to Eretz Yisrael from other countries. From here we can see that Eretz Yisrael is higher than other countries.