Responsa for Sanhedrin 63:2
מה בין דיני ממונות לדיני נפשות דיני ממונות בשלשה ודיני נפשות בעשרים ושלשה דיני ממונות פותחין בין לזכות בין לחובה ודיני נפשות פותחין לזכות ואין פותחין לחובה
WHAT IS THE DIFFERENCE BETWEEN CIVIL AND CAPITAL CASES? — CIVIL SUITS [ARE TRIED] BY THREE; CAPITAL CASES BY TWENTY-THREE<span class="x" onmousemove="('comment',' V. supra 2a; 23a. ');"><sup>3</sup></span> CIVIL SUITS MAY BE OPENED EITHER FOR ACQUITTAL OR CONDEMNATION; CAPITAL CHARGES MUST BE OPENED FOR ACQUITTAL, BUT NOT FOR CONDEMNATION.<span class="x" onmousemove="('comment',' The reference is to the judicial debate on the matter. In civil suits, the points in favour of condemnation may be put first; but in capital charges, the arguments for acquittal must be first marshalled, but v. Krauss, a.l. for another interpretation. But of course, it cannot refer to the actual opening of the case; the indictment and case for the prosecution must obviously be stated before there is a charge to answer. ');"><sup>4</sup></span>
Teshuvot Maharam
Q. Complying with A's request, the ruler of town T gave A the authority to admit as settlers only those persons of whom A would approve. A claims that B asked him for permission to remain in T for one year telling him that he had settling rights in another place, thus admitting that he possessed no settling-rights in T. B claims that he does possess such rights in T, that his father lived there before him, and denies having asked B for permission to stay there. Should both, B and A, be permitted to stay in T, it might lead to grave consequences, even to the spilling of blood, since B's conduct is known to be corrupt. Rabbi Moses asked what course he should take with respect to their claims.
A. If A produces witnesses to the effect that B asked permission to remain in T for a year, B will have to leave the town, since by his asking for permission he admitted that he either possessed no settling rights there, or had foregone any rights he might have had. If A can produce no such witnesses, B has a right to dwell in T. However, because of B's wicked conduct, you, Rabbi Moses, should deprive B of his settling rights in T and require A to pay adequate compensation to B. I have often seen communities deprive one of their members of his settling-rights because of misconduct; your court that has the right to confiscate a person's money, surely has the right to deprive one of his settling-rights. You should force, therefore, A and B to leave the case completely in your hands to be decided either by arbitration or according to strictly legal requirements, and then you will be able to decide as you see fit.
R. Meir adds:
Your opinion that B lost his settling-rights because of the legal principle "the law of the land prevails" is untenable. The ruler of T gave A the authority to pass on new settlers, but he gave A no authority to dislodge old residents. Had the ruler of T granted A the authority even to dislodge old residents, the validity of such a grant would depend on the reasons that prompted the ruler to grant such authority. If A asked the ruler for such authority, then A has no right to exercise his authority since by his request he directly injured B's interests. But, if the ruler of T, on his own accord, said that he does not want any Jew to live in T unless he receive A's permission, then A may dislodge B because of the legal principle: "The law of the land prevails".
The decision of R. Isaac (b. Samuel, the Tosafist) in the case of the Jews who fled from their town and whose real estate the ruler of the town confiscated and, then, sold to other Jews, has nothing to do with our decision. In this latter case, R. Isaac rightly decided that the purchasers must return the property to the original owners (as compensation, the purchasers were entitled to the amount the original owners would have spent to regain their property) for the ruler had no right to confiscate real property that belonged to the Jews for generations. Such an act on the part of the ruler is not considered "law of the land" but is rather outright robbery, and, therefore, illegal. In our case, however, the ruler of T is the owner of T and has a right to admit anyone into his town, and to keep out of it anybody he wants to keep out. We cannot claim for B's benefit that his father bought permanent settling rights from the ruler of T and stipulated that he or his descendants could never be dislodged from T, for such transactions were very rare, even though such a stipulation if made would be binding and would render the act of the ruler dislodging B an illegal act.
The decision arrived at in the Talmud (B.B. 54b) accepting as binding the Persian law that if the owner of a field defaults in the taxes for that field, anyone who pays the taxes becomes owner of the field, also, has nothing to do with our case; for taxes on real property accumulate even when the owners are away, while Jews are not required to pay taxes to their overlord, unless they actually live in the domain of these overlords. For Jews are not subjugated to their overlords as the Gentiles are, in the sense that they have to pay taxes to a particular overlord even when they do not live in his domain. The status of the Jew, in this land, is that of a free land owner who lost his land but did not lose his personal liberty. This definition of the status of the Jews is followed by the government in its customary relations with the Jews.
SOURCES: Cr. 6; Pr. 101, 1001; L. 313; Mord. B. B. 559; Mordecai Hagadol, p. 253b. Cf. Agudah, B. K. 144; ibid. B. B. 74; Maharil, Responsa 62; ibid. 77; Terumat Hadeshen 351.
A. If A produces witnesses to the effect that B asked permission to remain in T for a year, B will have to leave the town, since by his asking for permission he admitted that he either possessed no settling rights there, or had foregone any rights he might have had. If A can produce no such witnesses, B has a right to dwell in T. However, because of B's wicked conduct, you, Rabbi Moses, should deprive B of his settling rights in T and require A to pay adequate compensation to B. I have often seen communities deprive one of their members of his settling-rights because of misconduct; your court that has the right to confiscate a person's money, surely has the right to deprive one of his settling-rights. You should force, therefore, A and B to leave the case completely in your hands to be decided either by arbitration or according to strictly legal requirements, and then you will be able to decide as you see fit.
R. Meir adds:
Your opinion that B lost his settling-rights because of the legal principle "the law of the land prevails" is untenable. The ruler of T gave A the authority to pass on new settlers, but he gave A no authority to dislodge old residents. Had the ruler of T granted A the authority even to dislodge old residents, the validity of such a grant would depend on the reasons that prompted the ruler to grant such authority. If A asked the ruler for such authority, then A has no right to exercise his authority since by his request he directly injured B's interests. But, if the ruler of T, on his own accord, said that he does not want any Jew to live in T unless he receive A's permission, then A may dislodge B because of the legal principle: "The law of the land prevails".
The decision of R. Isaac (b. Samuel, the Tosafist) in the case of the Jews who fled from their town and whose real estate the ruler of the town confiscated and, then, sold to other Jews, has nothing to do with our decision. In this latter case, R. Isaac rightly decided that the purchasers must return the property to the original owners (as compensation, the purchasers were entitled to the amount the original owners would have spent to regain their property) for the ruler had no right to confiscate real property that belonged to the Jews for generations. Such an act on the part of the ruler is not considered "law of the land" but is rather outright robbery, and, therefore, illegal. In our case, however, the ruler of T is the owner of T and has a right to admit anyone into his town, and to keep out of it anybody he wants to keep out. We cannot claim for B's benefit that his father bought permanent settling rights from the ruler of T and stipulated that he or his descendants could never be dislodged from T, for such transactions were very rare, even though such a stipulation if made would be binding and would render the act of the ruler dislodging B an illegal act.
The decision arrived at in the Talmud (B.B. 54b) accepting as binding the Persian law that if the owner of a field defaults in the taxes for that field, anyone who pays the taxes becomes owner of the field, also, has nothing to do with our case; for taxes on real property accumulate even when the owners are away, while Jews are not required to pay taxes to their overlord, unless they actually live in the domain of these overlords. For Jews are not subjugated to their overlords as the Gentiles are, in the sense that they have to pay taxes to a particular overlord even when they do not live in his domain. The status of the Jew, in this land, is that of a free land owner who lost his land but did not lose his personal liberty. This definition of the status of the Jews is followed by the government in its customary relations with the Jews.
SOURCES: Cr. 6; Pr. 101, 1001; L. 313; Mord. B. B. 559; Mordecai Hagadol, p. 253b. Cf. Agudah, B. K. 144; ibid. B. B. 74; Maharil, Responsa 62; ibid. 77; Terumat Hadeshen 351.
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