Introduction
At a time when English, French, Spanish, and Dutch pamphleteers and philosophers were hotly contesting the legitimacy of their governments and the role of religious authority in the state, Amsterdam Jews were also engaged in internal debates about the authority of their leaders and the relative preeminence of rabbinic and lay leadership. No lesser figure than Isaac Aboab da Fonseca (1605-1693), the head rabbi of the city’s Spanish and Portuguese Jews, published a treatise in 1680 defending the status quo of the community’s practices regarding the herem (excommunication or ban). Strikingly, Aboab argued that the herem was not his own prerogative as a rabbi, but rather represented the political rule of the community, and thus was rightly wielded by the lay leadership as its government. Aboab’s treatise opens a window onto political differences among the Amsterdam Sephardim at the time of its composition, including sharp disagreement over the validity of the lay government and the role of the rabbi in communal affairs. It thus reveals an ideological dimension of disputes that are already known to have taken place in the community around this time. In addition, Aboab’s formulation of the Mahamad’s authority is unusually authoritarian, as he suggests that the members of the community irrevocably transferred their political authority over to the Mahamad. The arguments Aboab presents seem to mirror contemporary non-Jewish debates about the social contract and the rights of subjects to rebel against illegitimate or ineffective rulers.
Source 1 Translation
Exhortation to those who fear the Lord, not to fall into sin due to lack of understanding of the precepts of his Holy Law.
5440 (1679/80)
Greetings to those who love Torah, may they not stumble.
EXHORTATION
To those who fear the Lord, not to fall into sin due to lack of understanding of the precepts of his Holy Law.
Composed by the learned Senhor Hakham, Morenu ha-Rav Isaac Aboab, Av Bet Din and Rosh Yeshivah of the holy congregation Talmud Torah.
Printed in Amsterdam, in the house of David Tartas, 5440 [1680]
Prologue to the Reader:
I announce and truly affirm that I do not intend to cause a scandal with this treatise, and I was moved to publish it neither by passion, nor by anything other than love for the individuals and generality of this holy community, and zeal for the sanctity of the Holy Law. I write so that they will not listen to the sycophants who wrap themselves in the mantle of the law in order to exploit it, abusing many with their doctrine. They ought to follow the example of those in other congregations, who are afraid to hear the name herem spoken, and who would rather be insulted with the greatest and most ignominious name than be called ‘banned’ or ‘son of an banned one’.1 May the Lord protect us from such a punishment and bless His people with peace.
H[akham] I[saac] Aboab
[3]
Greetings to those who love Torah, may they not stumble.
Exhortation to those who fear the Lord, not to fall into sin due to lack of understanding of the precepts of his Holy Law.
Composed by the learned Senhor Hakham, Morenu ha-Rav Isaac Aboab, Av Bet Din and Rosh Yeshivah of the holy congregation Talmud Torah.
“What ends in deed begins in thought”2: a truly rational statement of the sages, in accordance with which the beginning of this tract must contain its end, which is to disillusion the illusioned, and disabuse the abused. It will show that no power can annul or invalidate the herem that the holy Kahal took upon itself when everyone signed in the presence of the four Hakhamim.3 There is no way to lift the ban on a violator of this herem, aside from the Kahal itself absolving him, which requires at least as many people as the original [4] signers. Even this, though possible, ought not to be done in my opinion, since it goes against the unity and conservation of the Kahal and feeding of the poor.4 We find an example of this in the holy scripture: when six hundred Benjaminites escaped in flight, whereas all the rest perished in the war caused by the concubine of the Levite, Israel repented and tearfully lamented their total extermination of a tribe of Israel (as they thought they had done),5 because they understood the mystery of the number twelve, and feared that the Lord’s divinity would desert them. And they said in Judges 21:7, What will we do for those who remain to give them wives, and to try to rebuild this broken stalwart of the fortress of Israel? Because we swore by the Lord not to give them wives from among our daughters. It then continues, explaining how they condemned the inhabitants of Jabesh-gilead because they violated the herem by not agreeing to enter into that war with the rest.6 Thus they determined to pass all of them through with a sword, without sparing anyone except [5] the young women who were still in a marriageable state. Once they had these four hundred women to give as wives to the surviving Benjaminites, they asked, “what will we do for the other two hundred?” It is difficult to understand how, in such an urgent case, the very people who created the herem could not dissolve it, freeing themselves up to help these two hundred, but this proves our claim: they could have dissolved it, but to do so would have been wrong without first seeing if the problem could be solved another way, without touching the sacred herem. In the end, they managed to find another solution, giving the rest of the Benjaminites permission to go into the fields and hide in the vineyards on the day when the virgins of Israel danced and celebrated as part of a festival (the day we call day of the maidens), and take maidens for their wives. They judged that this considerable violence was a lesser evil than violating their herem, even by dissolving it. If that is the case, then good judgment shows there can be no excuse for failing to uphold the herem of our holy Kahal, or for considering trying to dissolve it. Those who would argue it should not be done in ordinary cases of the herem, or in a case of nidui,7 should avoid it that much more when it is a matter of a mitzvah, imposed for the better observance of the holy law.8 This can be seen in R. Moshe Gerundense’s [6] Treatise on the Herem, 288.9 As I already declared this to be the end of this treatise, it seems appropriate at the beginning to define the herem, how far it extends, if it can be revoked, and how. First, we reprove, as R. Gerundense did, that which some congregations do in order to absolve the herem, that the cantor stands on the tevah and says, “Let the herem be dissolved,” by which they understand this to be accomplished. This is incorrect because only the Hakham can dissolve it, or three people in his place, except if the revocation is made with the consent and in the presence of the whole Kahal. Equally incorrect are those who bind themselves together with a herem that they themselves can dissolve. This is proved by our sages, who say that when the tribes sold Joseph they agreed among themselves with a herem that none of them would reveal it to their father. Judah said it was not possible because without Reuben there were only nine of them, an insufficient number, and so they bound themselves together with the Lord. The Blessed God respects the honor of men, and particularly that of those who fear Him, so much that he agreed to be counted among them to create a herem. Eventually Reuben subjected himself to the same obligation, and it is reasonable to think [7] that this would have freed the Lord, as the royal Psalmist says, reveal his words to Jacob (Psalms 1:47). But he did reveal them out of respect for the herem and the honor of the tribes, and this is why they themselves dissolved the herem when they found Joseph alive. Then the holy text says, and the spirit of Jacob his father was resuscitated (Genesis 46:27). Does this mean that it was somehow dead? Yes, the holy scripture does indeed mean to say that he “resuscitated the spirit of Jacob” since the Lord did not speak to him because of the herem, but restored his prophetic power when it was dissolved. When he was named Israel, the Lord suspended his prophecy, to prevent him from asking about Joseph. This is also the meaning of Genesis 37:35, and his father wept for him: Joseph’s father, Jacob, wept for Joseph in the presence of his father, showing that they presume that it not had been revealed to him that Joseph was alive. The Lord could have told him, but to do so he would have had to dissolve the herem that the Tribes had made among themselves.
The word “herem” can also mean a [8] curse, since saying “these items are a herem” is the same as consecrating them, and they are treated like gifts for absolution, going to support the activities of the holy temple, or being given to the priests.
Thus tradition teaches that when a bet-din decrees that whoever does something will be placed in the herem, it is inviolable, as will be seen below.
The herem is different from an oath, because if a man swears in another, it means nothing unless the party responds by saying ‘amen.’ But if a bet-din or kahal makes an ordinance under punishment of herem, it is valid whether he responds ‘amen’ or not. The same will also be true if he does not accept said herem, or if he is not present, as will be stated below, since the Senate had authority to impose10 a herem as it says in Nehemiah 13:25, And I cursed them…and made them swear by God. Therefore said herem is incumbent on him and it is the same as if he swore it himself.
The same holds true for a city in which all of the inhabitants, or the majority of them, [9] has made an agreement in the presence of the seven deputies:11 if they impose a herem, it obligates the minority to their observance, and such a herem is firm and incontrovertible. Therefore someone from such a city who transgresses it is banned as if he transgressed his own oath, which will penetrate all of his limbs and, as the Prophet Zechariah says in 5:4, _it shall consume them to the last timber and stone._12
Everyone has an obligation to separate himself from this person, and give him only what is necessary for him to live. Whoever does not observe this becomes included in the same herem, and must behave like the banned one, going barefoot like a mourner and all the rest, and no one may profit from the property of the condemned. The least objection to this is cause for ruin, and constitutes a transgression of the letter of the law. This herem is what they claim to be invalid, except in company of ten, which they call a congregation.13 They say that, being fewer, the deputies have no authority to impose a herem, but only to swear, each one for himself. [10] If this herem was decreed by the King or Great Senate of Israel in presence of the majority of Israel, then the King or Senate would be able to impose the death penalty on transgressors if they so desired, since they can impose this penalty as they see fit. Scripture shows this in Joshua 7:13, And the Lord said to Joshua, there is a herem among you Israel, as the famous Captain, Joshua, had the right to condemn the rebel Akhan to death for committing a sacrilege.14 King Saul is another example, as he condemned his son Jonathan for transgressing the herem that he decreed, even though he had achieved such a great and glorious victory when he and his servant alone destroyed the furious Philistine army, as described in the sacred history in I Samuel 14:26.15 The High Priest Eleazar did no less when the inhabitants of Jabesh-gilead were killed in the events related to the Levite’s concubine mentioned above, as it is said in Judges 20:5, For they had made a great oath concerning him who did not come up to the Lord to Mizpah, saying “he shall be put to death.” Thus it is asked in the name of Rabbi [11] Akiva, why does it say “oath”? Precisely so that you will know that the herem is an oath, and an oath is a herem: the inhabitants of Jabesh-gilead were condemned to death because they did not join the rest of the tribes.
In addition, the herem does apply to future generations, just like Joshua’s decree that is mentioned in the text of the herem.16 It says in Joshua 6:26, At that time Joshua pronounced this oath: “Cursed of the Lord be the man who shall undertake to fortify this city of Jericho”, and this decree continued to be implemented for many years, even until the time of Ahab, as it says in 1 Kings 17:1.17
Now, the main aim of this treatise is exhortation, by which I hope to prevent a great absurdity and reprove a harmful doctrine that has been introduced by malicious souls, and disturbers of the peace. Some subjects who desire liberty follow this man who makes them captive to sin, and brings them to ruin. They do not consider how much they offend God [12] by dividing the Congregation, the glory and happiness of which consists in unity, with the help of His sovereign grace. Since we are directly protected by Him, He may be called our king, and we his beloved vassals, as Moses the prophetic luminary expressed in Deuteronomy 33:5, And he was King in Israel (‘King’ referring to the Lord God, of course) when the heads of the people assembled, the tribes of Israel were together [unified]. What more evidence is required, since experience has also proven the same truth? And yet more is found in the comments of our Sages on the words of the prophet Hosea that are so poorly understood, unified idols Ephraim abandon18 (4:17). They explain in Midrash Rabot (Tractate 41 verse 3) that peace and concord are so beloved by the Lord in His republic that Ephraim should be left alone even though he was full of idolatry, since he was a part of it, and no force or judgment can oppose its unity. Conversely, the same prophet says in 10:2, [13] Now that their heart has been divided, they will be condemned19: now, justice will be carried out and they will be condemned and punished.
This, then, is the crime: some who do not fear God and who presume to know more than they do, argue that when ten individuals separate themselves from the holy congregation, they free themselves from the herem by forming their own congregation. They are blinded by passion, or rather sin, which prevents them from seeing that if this were true (which it isn’t), then the herem would have no value. This does not apply in our case anyway, since our herem stipulates that there cannot be any other synagogue in the city of Amsterdam or its environs, and that no one may assemble a quorum for prayer, except in certain conditions.
Others make another bad argument based on similarly false grounds, preying on the weakness of those who ignore the truth or are ignorant of it. They say that this herem has no value because it was not made with the authority of a Hakham. I deny this, because four Hakhamim were [14] involved in the agreement in question, and also signed. If this argument were true, it would mean that the Kahal does not have enough authority to create a herem on its own, which would invest the Hakham with unchecked authority. King Saul commanded, under pain of herem, that no one eat until the Lord conceded a clear victory to the people of Israel. Jonathan violated the herem without eating, only sucking on a sugar cane and being invigorated by its juice, but his father cast lots over him, and gave the sentence according to the Law, saying in I Samuel 14:45, Shall Jonathan die? But the same Prophet says in verse 26, And the people redeemed Jonathan, and he did not die. Was he by any chance redeemed with money? No. Then with what? With the authority that the Lord granted to the congregation. And the reason it says this is because it is not the king who makes the people, but the people who make the king. Thus Solomon says in his Proverbs (14:28), The larger the people, the greater the glory of its King.20 Thus the authority of the people can do more than the royal decree, when it contradicts the holy Law [15] as a great absurdity and an insupportable error. The greater error would be to not recognize this, since the Lord punishes both sins and errors, and if errors are great, they indicate great sins, and deserve great punishments.
Those who desire to obscure the truth out of passion or convenience will never lack the means; these go around saying that when one Agreement21 is broken, the rest lose their force. For example, they say that one of the constitutional articles of the holy Kahal is that an additional council of six people should be elected for the affairs of the Kahal, and since this was one of the founding articles, and it is no longer observed, the rest of them are invalid.22 They use this to try to remove authority from the Mahamad, but it is the same as the Kahal, and cannot be made or unmade according to the needs of the time. When the rule was instituted, it was to subdue and unify the three congregations, because the Lord must conserve us against the wild winds; but when the cause ends, that which is caused has its end, so it has already been lost from memory, and there are no longer two from each Synagogue. Furthermore, [16] I demonstrate that this agreement is in itself null. It says: ‘…and if at any time the Mahamad sees fit to remove an article from the Agreements, they cannot do it without the six Deputies who are now in place, or those who would then be living, having been called to replace the original six, as those who remain will name replacements for those who have passed away. The Mahamad must obey whatever these six resolve.’ However, they all died and others were not named in their place, so this agreement was undone by its own self. Even if they had continued it, and affairs had not been governed as they should have been (which is not true), bad government cannot remove the value from the herem. Nothing would please the disturbers more than if the breaking of one agreement voided the rest. Let’s move on to break down another absurdity: they all say what they understand, but not everyone understands what they say. They say that they were not present for, did not sign, and did not approve this herem, and thus it seems to them that it does not obligate them; this is a false doctrine. We say to them, ‘do you not see [17] that the herem of Moses extends throughout the generations?’ and then they justify their argument by pointing out that the Sages say that all souls, embodied or to be embodied in the future, were present for Moses’ herem. I do not deny this because it would be to deny the truth, but I perceive that they claim things that they do not believe, and which do not aid their argument anyway. There are four modes of commentary, literal, allegorical or moral, anagogical, and tropological, but no one denies that the literal comes first. The document that Moses left us, entrusted to the future generations, was a herem that includes those present and absent, and those born and those who are yet to be born. Furthermore, the sages said that Jonathan’s life was in danger without a higher power to save him, even though he was not present for the herem and didn’t know about it. As for those of Jabesh-gilead, I will grant that they knew of the decree given by the high Priest Eleazar in the presence of all the people, but they certainly did not approve it, because then they clearly would have come. They did not [18] come, which must have been due to ignorance or malice; if malice, they deserved it. But they also could not use ignorance as an excuse, because the force that the Lord granted to the herem is so great that no excuse has power against it. This is why Jonathan did not excuse himself: he knew the herem to be a great good; and Lord, could not tolerate Jonathan’s ignorance, and ordered lots to be cast.
In sum, I was moved to publish this exhortation in order to disabuse those who let themselves be abused for some accursed reason of state; and in order to help the zealous and God-fearing, and keep them from believing such a harmful doctrine. They must not be deluded in their hopes of divine grace, because He laughs at those who are too confident and ungrateful.
Hopefully everyone can agree on this at least, and we ought not to pay too much heed to the disputes that pass between us, because they are not new. The same has happened in other congregations, even if we differ in that they were easy to subdue, whereas we are hard, and stubborn in obedience. It would be a very long affair, and not very intelligible, if we tried to [19] explain everything the sources say about this subject; we will give only a basic summary of their words, and state what we claim will be verified with their authority.
The famous Rabbenu Moses Gerundense told of a congregation that made some decrees with a herem, and some individuals swore in presence of witnesses that they did not accept it, and thus did not submit to these ordinances or herems. It was asked whether such an oath had the power to counter said herems, and he responds: it is known that all congregations have full authority over their yehidim, to order them in their city as did the Great Senate of Israel, as the Prophet Malachi said in 10:11, He said thus, with the curse, the whole nation is cursed.23 He says that the majority is the same as the whole, so violators certainly incur the curse, as it says in the Gemara of Avodah Zarah.
Rabbenu Moses concludes by saying that those who swore shouldn’t have done it and lacked the authority to do it. Anyone who does not follow the congregation violates [20] the herem that the Kahal places. This source does not even mention the Hakham here, proving what I said above, that the authority of the Kahal is greater than all. An even clearer proof is that the same author says that the herem would be stronger if it were done with the approval of the Hakham: we may infer from this that the herem of the Kahal is valid even if it lacks the authority of the Hakham. From the Rishbah24 it seems that the Mahamad needs the company of the Hakham, because at the end of that which is recounted above, it says in his name: “as long as it is done with the agreement of a respected man.”25 But this does not contradict the above, because it only deals with the Mahamad, and not the generality. Furthermore, it cannot even be concluded that the Mahamad requires the assistance of the Hakham, because that is based on the interpretation of “respected man” as a Hakham, but this has no basis because he knew very well how to say Hakham, but didn’t. In his wisdom he didn’t want to depart from the term of the Gemara, adam hashuv, “respected man.” As I will prove, this term should be understood as a man who is well esteemed by the inhabitants of the city, serving as Parnas or Deputy. Rabbenu Nissim says the same about the Gemara.
[21] Thus there can be a respected man deputized over the Kahal without having to be a Sage, and for even more proof it also says “if such a Parnas did not have license,” so that we understand that the Parnas is the “respected man.” Hakham Caro in his Bet Joseph says the same in the name of the cited Rabbenu Nissim: “respected” must be understood as deputized as a Parnas over the congregation. The Tur26 should also be understood as supporting this interpretation, when he refers to the “great and wise man” and then repeats it, using the phrase “Hakham and governor” to mean the same thing. I agree with this, corroborating it with the following argument: the Gemara only discusses the “respected man” when it gives him the authority to increase the law, saying “man, Hakham or governor”; if this respected man was a Sage27, they would say Sage, and if he was a governor, they would say governor. Others would interpret this to mean that it is necessary for him to have both qualities: that he be a sage, and that this sage also be a governor. We must not fall into this error, because it says “sage, or governor,” so that the name of “respected man” can be applied to either one of them. The Rosh [22] affirms this, as does the Hakham Ribi Levi Ibn Habib at length in his 99th responsum, where he says that the sources all generally agree that everything the Mahamad decrees with the participation of the Hakham is most valid and firm. Note that the Rosh is referring to the Mahamad rather than the Kahal, proving our assertion that the Kahal has full authority to impose and revoke a herem without the participation of a Hakham. The only thing that can be brought against this is the authority of Hakham Ribi Joseph Caro, whom we follow in everything. He says, in his Shulkhan Arukh volume 4 chapter 231 verse 28, that the inhabitants of a city have authority in all matters as they see fit, to arrest and punish whoever transgresses their order, and that by virtue of their office the officials can agree among them, that no one work in the day that belongs to his colleague. This is meant to apply in a city where there is no Hakham, but if there is one, the agreement will be null unless it is made with his approval. This seems to contradict what we maintain, suggesting that even the Kahal [23] requires the authority of a Hakham. With all due respect, he is mistaken, as is anyone who thinks that the name “respected man” can only mean Hakham. Rather, as I have said and proven, it means a man, Hakham or not, who is particularly well respected by the inhabitants of the city, so that he is elected by them and charged with the affairs of his city and Kahal. As for the previous question of whether the Kahal in itself has enough authority, they would necessarily argue that it does, since it says that the decree is valid when there is no Hakham, but not when there is one. In other words, the Hakham brings to them the authority that belongs to him by reason and by right, increasing the authority of the Kahal, but its own authority is not lost on account of his absence. This argument proves our point that the authority of the Kahal is greater when accompanied by that of the Hakham, and also the same author in his famous Bet Joseph cites Rabbenu Nissim’s argument that if no one is harmed they may arrange everything among them as they see fit, meaning without the [24] authority of a Hakham.
Hakham Ribi Moshe Alascar, in responsum 49, treats the entire Tosefta that deals with officials, and explains that when it says that a decree is valid with a “respected man” and void without him, it only refers to officials in particular, and not to the inhabitants of the city, because they can order everything as they see fit, with or without a Hakham. He continues, saying that both Rabbenu Moshe and Bar Cessat agree, and concludes saying that the inhabitants of a city can make their ordinances without requiring a “respected man,” although if they are approved by a bet din it is stronger, empowering them to confiscate the property of transgressors, as the Gemara states, based on Ezra 10:7, and they issued a proclamation in Judah and Jerusalem, to all the sons of the captivity to come together in Jerusalem, and all who did not come in three days according to the decision of the Princes and elders would have [25] his property confiscated and would be removed from the congregation of the captivity, Similarly, the Gemara of Gittim fol. 36, repeated in the Gemara of Yebamoth fol. 89, and more extensively in the Gemara of Mo’ed Katan fol. 16, says, Rabbi Isaac said, that the confiscation of the Senate is a (valid) confiscation: because it says, and he who did not come in three days etc. Anyone who wants to know more can check the cited author. I offer a distinction to resolve all this, namely that if the Hakham is elected by the Kahal, than the Mahamad requires his company. This resolution has two advantages: first, it could be the intention of those who say “Hakham and governor,” meaning one man who is both Hakham and governor, which is the same as saying the Hakham of the Kahal. Second, it will close the mouths of those who want to obscure the truth, and ground those who desire to observe it with airy and false reasons, since this distinction can also be understood as applying to the Kahal, as was proven.
Now we will address the principal matter, which is most important for the conservation of the holy congregation, augmentation of the holy law, and feeding of the poor, and [26] to be favored by the Lord God with the harmony and unity that He so loves (since it is an occult quality of Israel that He can make them immortal individually, and also as a group, as the Prophet Malachi says in 3:8, _Because I am the LORD, I have not changed, nor have you ceased to be the sons of Jacob_28). Some things that seem insolent are actually grounded in some reason of state, but others, like the case we are dealing with here, lack it completely.
From the beginning of this kahal, it was instituted with the punishment of the herem, which everyone accepted and signed, that there could be no other synagogue in this city or its environs, and men could not assemble to pray in a separate minyan except in the house of a mourner or newlyweds, or by accident. Some, not considering the evil of their actions and the disruption caused by their example, but obstinately persisting in their bad choice because of personal feelings, separate themselves from the community. They should clearly see their error, with the authority of the most famous sources, [27] like a ray of the shining sun of truth breaking apart the fog.
The wise Medina sums it up in the 37th of his oft-consulted responsa, beginning with some words from the questioner, and perhaps his manner of speaking will work to subdue some hearts. The Lord God says that we are durable because we are so constant, and likewise this questioner seems tearful without showing any tears, as he says: “I am a disgraced and unhappy man, seeing the affliction of an illustrious congregation, that enjoys glory among the rest of the congregations, a congregation with great charity and authorities of incorruptible justice, eminent sages, who feed the hungry and quench the thirst of the thirsty, as the prophet Amos said in 8:1[1], Not hungry for bread, nor thirsty for water, but rather for hearing the word of the Lord. Nor does the congregation lack noble subjects from illustrious families, perfect in virtue, and crowned with the crown of the law as well as science, fame, and glory. Now my eyes are seeing a thing [28] that they never wanted to see: some subjects are raising themselves up, profaning the sacred temple, and forming a group, saying, ‘let us make an altar’ (which is a great sin, and thus appropriate for those who separate themselves from the generality). They do this without regard for the pious subjects, who try to persuade them not to, nor for the herem and curses, et cetera. Some change their minds, as it is not dishonorable to recognize one’s error; others, more sinful, persist in their impertinence. Some of those who have returned regret their own to maintain the accord, seeing that it was nothing but discord.”
The author responds by first proving that their oath to separate themselves from the congregation was not valid. It is stated in the Gemara of Shevu’ot that a man who swore not to observe a certain mitzvah29, and then broke his vow in observing it, is free (deserves no punishment), because his oath cannot replace the first one made on Mount Sinai. On that basis, the author says that in this case there can be no greater mitzvah than to maintain the first oath, which obligated subjects to observe the original agreement made with the herem, which is the same as an oath. Therefore the second [29] oath is equivalent to swearing not to do a mitzvah, and thus it is not valid. The author gives other effective proofs, but they do not fit with our case and only in the preceding does he deal with what could happen when someone tries to make oaths like this.
In his conclusion, our author says that the same thing happened in the Kahal of Geruz, and the Kahal of Lisbon, and congregations in the city of Constantinople. In all of these cases the illustrious Hakhamim agreed with him and his answer, that the separatists must return to congregate in their Kahal. Like those who give up bad behavior out of fear of punishment, they were obligated to return to congregate with their brothers, even though they had sworn not to, because such an oath is not valid. The author says that if they persisted in their rebellion and would not return, they would be banned (for more reasons than they try to give, which are all false), and with their return they would be cured.
They30 tell me that the herem only includes praying outside of the synagogue with a [30] minyan, and that they obey, but they want to do it at home (alone). They may well do this, but they should know that it will be to their detriment, since prayer in the congregation has great strength and valor, and prayer alone poses great risk, as they say in the Gemara of Berachot on Psalms 102:18, He turned toward the prayer of the solitary, and did not disapprove of their prayer, noting that this word פנה turned is the same as speculated on: when the Lord God hears a single voice he says, ‘who is this impertinent person who separates himself from my congregation, who runs to cheekiness? Let us see on what his boldness is founded.’ But the Lord never disapproves of the prayer of the general congregation, as the Gemara of Berachot says, every one who has a synagogue in his city, and does not go to pray in it, is considered a bad neighbor. They prove this by the Prophet Jeremiah,31 who says it in the following manner: Thus saith the Lord, as for all my evil neighbors, who touch the inheritance which I have caused my people Israel to inherit… It is inferred from the words of the author that those who are bad neighbors, to the detriment of the house of the Lord, not paying it due regard and not honoring it, they [31] and their sons suffer the captivity. The same prophet continues and corroborates what the Gemara of Berachot says, that the prayer of a man is not heard except in synagogue, understanding nog’im as causing a defect.
Hakham Adraby writes in responsum 39 that they sent a question to him from Salonika, when they suffered various disturbances. The same thing happened among them as among us: they told of some who separated themselves from the kahal, and their great Hakhamim ordered, among other things, that no one might separate from his kahal, nor make a new synagogue beyond those that they already had in that city of Salonika, and they enforced their decree with all the curses and herems. When they consulted the aforementioned author, he responded (in summary) that if they had sworn with greater curses that they had to separate, and if (though it is not the case) this oath were valid, he would differentiate between the oath and the herem, because they would be obligated to observe the oath, but this would not free them from the herem mentioned in the agreement, because it was still in existence. Thus they were still condemned, banned and disgraced before the Lord God, and therefore the [32] congregants in question had to revoke the oath they had made, and return to their congregation, which they did without any scruple.
In responsum 254 he affirms the same, and also in responsum 113, where he draws from Hakham Ribi Moshe Tranyma’s responsum 84. Thus, we enlighten those who do not know the force of the herem, which, as we have said, is so great that in the time of our happiness, and when we possess the kingdom, he who has transgressed it will deserve death—whether it was imposed by the King, or the great Senate of Israel. The arrival of the events we desire is in the hands of the Lord God, even though it may tarry and not come yet. And thus we leave our assertions resolved and proven, with the following conclusions:
First, we have shown the force of the herem, and its stipulations, and that only the Hakham, or three men in his place, can revoke it when imposed on an individual.
Second, the authority of the Kahal is so great that it needs no other addition.
Third, the Mahamad has the same authority whether it was elected juridically, that is, elected by the Kahal or by the majority [33] of it according to the custom; or when the Kahal has given the authority it possesses to the first elected officials, who then pass it on to their successors, electing those they find worthy and irreproachable.
Fourth, when there is a Hakham salaried or elected by the Kahal, whether elected by the Kahal or the Mahamad, his participation is required.
Fifth, the herem has the same value as all those since that of Moshe Rabbenu, which applies to all the generations present and future, without being able to claim absence or ignorance, because a quality of the subjects does not affect a herem or the virtue that the Lord God gave it.
Sixth, that all who deal with violators of a herem are in the same category, and the same stipulations apply to them.
Seventh, the overall point is to prove our assertion, with cases and examples of similar events, that since the unity of our Holy Kahal was constituted with the approval of all and signed by all in the presence of its Hakhamim under pain of herem, those who want to [34] violate this agreement by separating themselves cannot do it, and no one in the world can free them from the punishment they incur through this violation.
Eighth, as an aside, those who fear the Lord should stop praying at home because they are doing themselves harm even if they are not violating the herem. I hope to close this weak exhortation by saying we must keep our eyes on the prize and protect the common good, for the conservation of the holy kahal, the honor of the Lord God, and the glory of His holy law, by which we may be saved and thereby deserve and attain the promised era, as the Prophet Isaiah says in 59:20, _He shall come as redeemer, to those who repent says the Lord,_32 may it be in our days, Amen.
Today, 4 Elul 5480 [sic]33
Kaplan, Yosef. “Bans in the Sephardi Community of Amsterdam in the Late Seventeenth Century.” In Galut ahar golah: mehkarim be-toldot ‘Am Yisrael mugashim lel-Professor Haim Beinart li-melot lo shiv’im shanah, edited by Aaron Mirsky, Avraham Grossman and Yosef Kaplan, 517-40. Jerusalem: Mekhon Ben-Tsvi, 1988. Kasher, Asa, and Shlomo Biderman. “Why Was Baruch de Spinoza Excommunicated?” In Sceptics, Millenarians and Jews, edited by David S. Katz and Jonathan I. Israel. Leiden: Brill, 1990.
Lorberbaum, Menachem. Politics and the Limits of Law: Secularizing the Political in Medieval Jewish Thought. Stanford, California: Stanford University Press, 2001.
Endnotes
1 Aboab adapts the Hebrew word ‘herem’ into Portuguese as ‘enhermado’ and ‘filho de hum enhermado’. This could be translated as ‘enheremed’ in English but it will be rendered as ‘banned’ here and below.
2 From Lekhah Dodi, a sixteenth-century poem by Rabbi Shlomo Halevi Alkabetz, commonly sung on Shabbat.
3 Aboab is referring to the founding document of the community, the Ascamot, which established that the governing council, or Mahamad, would have the power to impose the herem. This document was signed by all qualifying members of the community when three congregations became one in 1638-9.
4 The “feeding of the poor” is often used as shorthand for the common good of the community.
5 See Judges 19-21 for the whole story, in which “all the children of Israel” find revenge on members of the tribe of Benjamin for a gruesome rape and murder. They vow to shun the Benjaminites, refusing to intermarry with them, and attack the city where the abuse took place. The Benjaminites are routed, losing all of their population except six hundred men who manage to flee. After the battle, the rest of the Israelites panic when they realize that they’ve nearly destroyed an entire tribe: there are only men left, and the other eleven tribes have sworn not to give any of their daughters to Benjaminites as wives. Instead of annulling the oath they themselves had taken, the Israelites resort to extreme and violent measures: they realize that one town, Jabesh-gilead, had not sent any representatives to the gathering where the oath was taken, and therefore was exempt from it. They send a force to murder all of the inhabitants except for the women in a marriageable state (virgins), who turned out to number 400. These they offer as wives to the Benjaminites, but there still remain 200 men without wives to rebuild the tribe. Finally, they hatch an elaborate scheme to kidnap 200 more maidens from Shiloh at the time of a spring festival, getting around the oath by neither offering their own daughters, nor having the maidens’ fathers offer their daughters willingly.
6 This is in Judges 21:8, but the verse does not contain reference to a herem. It only says that no man from Jabesh-gilead had come up to Mizpah when everyone else had come. But, see 21:1, “Now the men of Israel had sworn in Mizpah, saying: ‘There shall not any of us give his daughter unto Benjamin to wife.’” Below, Aboab makes the connection between a herem and an oath explicit.
7 Apparently he is referring to the rabbinic nidui, which is a sort of lower-level temporary herem, the practice of which had gone out of favor by his time.
8 Aboab seems to be referring to whatever communal dispute led to the writing of the treatise. The 1670s and early 1680s were an extremely contentious time in the Amsterdam Sephardi community, with a number of open conflicts where the herem was imposed, including some where the herem itself was the focus of the disagreement. The evidence from Aboab’s treatise is not enough to identify which particular dispute he was responding to.
9 Nahmanides, _Mishpat ha-Herem
_10 deitar—literally translated as throw, give, or extend, in the sense of ‘lay down.’ I will translate it as ‘impose’ to match normal English usage.
11 The city Aboab refers to is his own, as the Mahamad that was empowered by the Ascamot consisted of seven officers. Aboab may be intentionally ambiguous in the next sentence as to whether “they” means the inhabitants or the deputies. Later in the treatise, he contradicts other rabbinic sources to suggest that the people lose this authority when they transfer it to a government.
12 Paraphrased from Nahmanides, Mishpat ha-Herem. This passage is quoted in translation in Menachem Lorberbaum, Politics and the Limits of Law: Secularizing the Political in Medieval Jewish Thought (Stanford, California: Stanford University Press, 2001), p. 107.
13 “They” are apparently congregants who are trying to create their own community by forming a quorum of their own. The rule they cite is given by Nahmanides (in Mishpat ha-Herem, quoted in Lorberbaum p. 108), and Aboab’s contradiction of it is striking considering his explicit reliance on Nahmanides elsewhere in the passage. Some such incidents actually took place around the time of the treatise’s composition, and records survive of the Mahamad’s attempts to force them back into the community by means of the herem and the external support of the Dutch authorities. See the incidents involving Abraham Barboza and especially Isaac Coutinho described in Yosef Kaplan, “Bans in the Sephardi Community of Amsterdam in the Late Seventeenth Century,” in Galut ahar golah: mehkarim be-toldot ‘Am Yisrael mugashim lel-Professor Haim Beinart li-melot lo shiv’im shanah, ed. Aaron Mirsky, Avraham Grossman, and Yosef Kaplan (Jerusalem: Mekhon Ben-Tsvi, 1988)
14 Again, following Nahmanides in Mishpat ha-Herem, quoted in Lorberbaum p. 108.
15 When the troops came to the beehives and found the flow of honey there, no one put his hand to his mouth, for the troops feared the oath. The passage does not use the word “herem.” The actual condemnation is in I Samuel 14:44.
16 See the text of Spinoza’s herem, “…cursing him with the herem with which Joshua banned Jericho…,” recorded in Portuguese in the Mahamad’s minutebook. A translation has been published in Asa Kasher and Shlomo Biderman, “Why Was Baruch de Spinoza Excommunicated?,” in Sceptics, Millenarians and Jews, ed. David S. Katz and Jonathan I. Israel (Leiden: Brill, 1990), pp. 98-9.
17 This is in the end of 1 Kings 16, at verse 34, not in chapter 17. During his reign, Hiel the Bethelite fortified Jericho. He laid its foundations at the cost of Abiram his first-born, and set its gates in place at the cost of Segub his youngest, in accordance with the words that the Lord had spoken through Joshua son of Nun.
18 This is a direct translation of the difficult Hebrew. JPS interprets it as _Ephraim is addicted to images—let him be.
_19 JPS:_Now that his boughs are broken up, he feels his guilt.
_20 JPS: A numerous people is the glory of a king: Without a nation a ruler is ruined. 21 Referring to the Ascamot
22 This refers to Article 42 of the Ascamot, which establishes a board of six representatives that must be consulted when major changes are made to the Ascamot. It was to consist of two deputies from each of the former congregations, to ensure that all three receive fair treatment going forward.
23 This is actually Malachi 3:9, which JPS has as _You are suffering under a curse, yet you go on defrauding Me—the whole nation of you.
_24 I assume he means the Rashba, Rabbi Shlomo ben Aderet, a disciple of Nahmanides. 25 Homem estimado—Aboab’s direct Portuguese translation of the Hebrew term adam hashuv, which is mentioned in BT Bava Batra 9a (and elsewhere) as a figure whose approval is necessary to validate a communal enactment.
26 Rabbi Jacob ben Asher (1270-1340), the author of the Arba’ah Turim.
27 Aboab shifts from “Hakham” to “Sabio” here, and in the next sentence, to “sage.” I have preserved the distinctions, in case he means to distinguish between the office of Hakham, the status of a Rabbi, and the quality of being wise or learned.
28 Actually Malachi 3:6
29 Or, “commandment.”
30 Now apparently referring again to the rebels of Amsterdam
31 Jeremiah 12:14
32 JPS: _He shall come as redeemer to Zion, to those in Jacob who turn back from sin—declares the Lord.
_33 It should be 5440, the date given at the beginning of the treatise, which must be the correct one Aboab died in 5453. Perhaps the error crept in because the Gregorian date was 1680.
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Source 1 Original Text
Exortaçaõ, Paraque os tementes do Senhor na observança dos preceitos de sua Sancta Ley, naõ cayaõ em peccado por falta da conviniente inteligencia.
( 5440)1679/80
שלום רב לאוהבי תורתיך ואין למו מכשול
EXORTACAO,
Paraque os tementes do Senhor
na observança dos preceitos de sua Sancta Ley,
naõ cayaõ em peccado por falta da conviniente inteligencia.
Feito pello docto Senhor Haham Moreno A-Rab R. Yshac Aboab Ab-Bet-Din, & Ros-Yesibá do Kahal Kados de Talmud Torah.
Estampado
Em Amsterdam. Em Caza de DAVID TARTAS ANNO 5440.
Prologo a o Lector.
A os que lerem este Tratado advirto, & afirmo com verdade, que nem paxaõ nem nemh ̃ua outra cauza me moveu á tirallo á luz, nem menos escandalisar a ninguem, senaõ o zelo do Sagrado da Ley Sancta, & o affecto amoroso que devo em particular, & em geral á todo Sancto Kahal, possa ser naõ deym ouvidos a Aduladores, que com capa da Ley vendem á mesma Ley; y com sua doutrina tem abuzado a muytos, com que naõ fazem caso do que tanto deviaõ fazer, tomando exemplo das demais Congregas que temem de ouvir nomear o nome de Herem, & antes quizeraõ ser afrontados com o mayor, & mais ignominoso nomem, que chamarle enhermado, ou filho de hum enhermado de que o Señor nos livre de encorrer em semelhante pena: & .A. bendiga a seu povo com paz.
H. Y. ABUAB.
[3]
שלום רב לאוהבי תורתיך ואין למו מכשול
Exortaçaõ, paraque os tementes do Senhor na observança dos preceitos de sua Sancta Ley naõ cayaõ em peccado, por falta da conviniente inteligencia.
Feito pello doctissimo Senhor Haham Moreno A-Rab R. Yshac Aboab, Ab-Bet-Din, & Ros-Yesibá do Kahal Kados de Talmud Torah.
Sentença de nossos Sabios realmente racional סוף המעשה במחשבה תחילה_O fim de qualquer acçaõ primeiro precedeu no pensamento._ Assi deste papel o branco a que se derige, he o fim seu mesmo fim, & assi deve preceder no principio, qeu he, desenganar a os enganados, & desabuzar a os abuzados; que o Herem que o Sancto Kahal tomou sobre si em companhia dos quatro Hahamim, por todos firmado, naõ pode haver poder que o possa desfazer nem anullar, & todo o que o transgirir, nemhum remedio tem para deixar de ficar enhermado, eseito quando o Kahal pello menos com otro tanto nu- [4] mero dos que firmaraõ, o quizerem absolver, & na minha opiniaõ bem podem, mas naõ o devem fazer, a hua por ser contra a Uniaõ, conservaçaõ do Kahal, & alimento dos pobres, quanto pello exemplar que acho na Sagrada Escritura. Livraose fogindo de Binyamin, seis centos homems, por onde parece, qeu tudo o demais pereceu, quando na guerra causada por a Concobina do Levita, arependese Ysrael, & com lagrimas lamenta o haver extreminado de todo (segundo julgaraõ) hum tribu de Ysrael; como aquelles que bem entendiaõ o misterio de quanto montava o numero de doze, paraque a Divindade do Senhor jamais os desamparase: & dizem assi em Iuezes capit. 21. vers מה נעשה להם .7 .