Tithes: Supporting the Priests vs. Sustaining the Poor

The Edict of Yochanan Hyrcanus

The Babylonian Talmud relates the following anecdote about Yochanan Hyrcanus the high priest (164-104 BCE), when he learns that people may not be separating out tithes and decrees that it is the purchaser’s responsibility to take care of some of these payments.

^{בבלי סוטה מח.} שלח בכל גבול ישראל וראה שאין מפרישין אלא תרומה גדולה בלבד, ומעשר ראשון ומעשר שני מקצתן מעשרין ומקצתן אין מעשרין,

^{b. Sotah 48a} [Yochanan Hyrcanus] conducted a survey throughout the land of Israel and discovered that the only contribution people were habitually separating from their crops was terumah gedolah [= the priestly due]. But the first tithe and second tithe—some were separating some not.

אמר להם: בני, בואו ואומר לכם: כשם שתרומה גדולה יש בה עון מיתה, כך תרומת מעשר וטבל יש בהן עון מיתה,

He said to them ‘my children, let me inform you that just as a layperson partaking of terumah gedolah is liable to death, so too is a layperson who partakes of the terumah [taken out] of the first tithe or partakes of tevel [i.e. produce from which one or both of the aforementioned dues has not been separated]’.

עמד והתקין להם: הלוקח פירות מעם הארץ – מפריש מהן מעשר ראשון ומעשר שני, מעשר ראשון מפריש ממנה תרומת מעשר ונותנה לכהן, ומעשר שני עולה ואוכלו בירושלים,

Thereupon he issued the following ruling: If one buys produce from an am ha-aretz^[1] one must separate from it the first tithe and the second tithe. From the first tithe, one must then separate terumah of the tithe and give it to the priest. The second tithe must be taken to Jerusalem.

מעשר ראשון ומעשר עני – המוציא מחבירו עליו הראיה!

As for the [nine remaining parts of the] first tithe and the tithe for the poor, the burden of proof is on the claimants [i.e. the Levites and the poor, respectively].

Five Biblical Contributions: According to the Rabbis

This talmudic passage alludes to five distinct contributions that are separated from produce on the authority of scripture:

1. תרומה גדולה (the great contribution) is granted to the priests from the year’s produce (based on Numbers 18:12). The Torah states no specific amount for this gift, but the Sages set it as between one sixtieth and one fortieth of the year’s yield.
2. מעשר ראשון (the first tithe) is given to the Levites (Numbers 18:21).
3. תרומת מעשר (the contribution from the tithe) is the requirement for the Levites to separate out a tenth of their tithe (i.e., a tithe of the tithe) to give to the priests (Numbers 18:26, 32).
4. מעשר שני (the second tithe) is a requirement to use ten percent of one’s produce or the equivalent monetary value in Jerusalem over the pilgrimage festivals (Deuteronomy 14:22-23). This is less a tax and more a mandatory festival expenditure, and applies during the first, second, fourth, and fifth years of every seven year shemitah
5. מעשר עני (the tithe for the poor) is a requirement to give ten percent of one’s produce to the poor (Deuteronomy 14:28-29; 26:12). It applies during the third and sixth years of every seven-year shemitah^[2] (Thus, the מעשר שני and the מעשר עני are complementary.)

Yochanan Hyrcanus specifically requires the people to pay out both types of terumah (תרומה גדולה and תרומת מעשר, both donations to the priests) and the second tithe. Putting aside the מעשר שני , the second tithe, which is not really a tax since the person himself and his family make use of the money, why is it that Yochanan Hyrcanus is so strict about the two priestly gifts, but lenient with regard to the gifts to the Levites and the poor?

Severity of Punishment as a Way of Determining the Hierarchy of Laws

In the story, Yochanan Hyrcanus wants to make absolutely sure that terumah has been taken by pointing to the severity of the punishment in the Torah. He declares that the consumption of terumah (either kind) or even produce from which terumah had not been separated (טבל) is an offense punishable by death. He does not mean a death penalty from a human court, but death by heavenly decree—a divine punishment.

Eating Terumah is an Offense Punishable by Death

In the Bible, only the Levites, upon whom the primary responsibility of giving the tithe of the tithe to the priests falls, are threatened with death if they do not comply:

^{במדבר יח:לב} וְלֹֽא־תִשְׂא֤וּ עָלָיו֙ חֵ֔טְא בַּהֲרִֽימְכֶ֥ם אֶת־חֶלְבּ֖וֹ מִמֶּ֑נּוּ וְאֶת־קָדְשֵׁ֧י בְנֵי־יִשְׂרָאֵ֛ל לֹ֥א תְחַלְּל֖וּ וְלֹ֥א תָמֽוּתוּ:

^{Num 18:32} You will incur no guilt through it, once you have removed the best part from it; but you must not profane the sacred donations of the Israelites, lest you die.

The extension of this penalty to Israelites who do not give terumah gedolah appears nowhere in the Torah explicitly. It could be implied in Num 18:27, which equates the terumah of the Israelites with the terumah of the Levites (though it never explicitly says that death is the consequence of an Israelite violating this law), but the rabbis extract it from a verse in Leviticus:

^{ויקרא כב:ט} וְשָׁמְר֣וּ אֶת־מִשְׁמַרְתִּ֗י וְלֹֽא־יִשְׂא֤וּ עָלָיו֙ חֵ֔טְא וּמֵ֥תוּ ב֖וֹ כִּ֣י יְחַלְּלֻ֑הוּ…

^{Lev 22:9} Let them keep my charge and let them not incur guilt on its account because they will die for it should they profane it….

In context, this verse refers to the prohibition for priests to eat anything impure (like carcasses), and thereby bring impurity into the sacred precinct. However, the rabbis understand it as a reference to terumah gedolah.^[3] The Rabbis also assume that if an Israelite were not to give the tithe, and consume the entire produce including what should have been the tithe of the tithe, the threat of death which hung over the Levites would transfer to the violating Israelite.

Thus, the rabbis take it as fact that the consumption of terumah by a non-priest is a capital offense, since it profanes the holy.^[4] They do not understand the verse to refer to a court execution, however, but to מיתה בידי שמים, death by the hands of heaven.^[5] (In the Torah, it could very well mean a death penalty carried out by humans.)

The Seriousness of the Offense

Yochanan Hyrcanus, as the protagonist of a rabbinic heuristic tale, points out to others that since eating terumah—even produce from which terumah has not yet been taken—is an infringement that incurs death (at the hand of heaven), it must be the weightiest of the required contributions. Therefore, he insisted that terumah be taken again, just to be sure. As for the contributions to the Levites and the poor, these could be bypassed with the argument that since the farmer may have paid these already, the burden of proof is on the Levites, the widows and the orphans to say that they have not been given their due.

The Ethical Problem with Yochanan Hyrcanus’ Hierarchy

Yochanan Hyrcanus’ reasoning—which reflects the halacha as the rabbis understood it—produces a Torah that cares less for the widow and orphan and landless Levite than for the priest whose entitlements were already abundant (see Num 18: 8-19; Deut 18:3-4). Granted, if the penalty for breaking a law is the surest measure of a law’s rank, then technically Yochanan Hyrcanus’ logic makes sense, but morally not so much.

Why would the cards be stacked in favor of the privileged sacerdotal class and against the indigent groups? This question exercises the conscience of every Talmud student who allows him/herself to ponder the significance of Yochanan Hyrcanus’ enactment.

The perplexity is only intensified on discovering the rabbis have a general principle that fits with Yochanan Hyrcanus’ ranking.

^{בבלי גיטין סג:} ספק דאיסורא לחומרא; ספק דממונא לקולא.

^{Talmud b. Gittin 63b} When in doubt regarding prohibitions,^[6] err on the strict side; when in doubt regarding money, err on the side of leniency.^[7]

Rashi tells us that the reason for treating money (ממונא) leniently is once again because: “the burden of proof is on the claimant.”^[8] This shows that the reasoning behind Yochanan Hyrcanus’ teaching took hold and influenced rabbinic thinking even down to Rashi’s day (and in fact continues to impact some halakhic thinking today).

Mitigating the Moral Problem with Source Criticism

This is where recognition of discrete law collections within Torah comes to the rescue. Numbers 18, which describes the requirement to give terumah to the priests and a tithe to the Levites in order to support the tabernacle and the sacrificial cult are all part of the Priestly regulations.^[9] The requirement to spend a tenth of the value of one’s produce in Jerusalem as well as the requirement to give a tenth of one’s produce to the poor every third and sixth year, however, are not part of the priestly regulations but instead form part of the Deuteronomic law collection (D).

This source division is recognized by modern academic scholars, but, of course, not by the rabbis of old. And thus, Yochanan Hyrcanus could not have been aware that the laws ofterumah and the laws of the poor man’s tithe came from different law collections, penned by different authors/schools with different modes of expression, and most importantly, a somewhat different system of values.

Had he been aware of this, he would have concluded, as academic scholars do today, that contrasting laws of Deuteronomy with the Priestly laws without acknowledging these documents’ discrete styles and usages, can lead to a distortion of Torah. In fact, once the documents’ individuality is acknowledged, Torah as a whole no longer appears to favor the priests over the wretched and disadvantaged members of society.

Feeding the Poor in Deuteronomy

Indeed, distinguishing between the sources lets us appreciate Deuteronomy’s own method of emphasizing mitzvot. The Deuteronomonic corpus does have a law requiring a contribution to the priest:

^{דברים יח:ד} רֵאשִׁ֨ית דְּגָֽנְךָ֜ תִּֽירֹשְׁךָ֣ וְיִצְהָרֶ֗ךָ וְרֵאשִׁ֛ית גֵּ֥ז צֹאנְךָ֖ תִּתֶּן־לּֽוֹ:

^{Deut 18:4} You shall also give him the first fruits of your new grain and wine and oil, and the first shearing of your sheep.

This law, however, lacks the threatening tone found in the priestly legislation, and certainly has none of the rhetorical flourish that D puts into what seems to be its most important required contribution: the poor man’s tithe.

Deuteronomy highlights and exalts the poor tithe. It does this, in the first place, by calling the third—and by implication the sixth—year “The Year of the Tithe” (26:12), even though the tithe for the poor is not the only tithe in Deuteronomy. In the other years of its septenniel cycle, Deuteronomy requires farmers to set aside a tithe – what the rabbis called the second tithe. Nevertheless, only years when the tithe for the poor is give merit the title “Year of the Tithe.”

If that were not enough, Deuteronomy augments the giving of the poor tithe with a confession – or rather a profession of obedience – to be given upon the delivery of the third year tithe, the like of which is unattested anywhere in Scripture:

^{במדבר כו:יב} כִּ֣י תְכַלֶּ֞ה לַ֠עְשֵׂר אֶת כָּל מַעְשַׂ֧ר תְּבוּאָתְךָ֛ בַּשָּׁנָ֥ה הַשְּׁלִישִׁ֖ת שְׁנַ֣ת הַֽמַּעֲשֵׂ֑ר וְנָתַתָּ֣ה לַלֵּוִ֗י לַגֵּר֙ לַיָּת֣וֹם וְלָֽאַלְמָנָ֔ה וְאָכְל֥וּ בִשְׁעָרֶ֖יךָ וְשָׂבֵֽעוּ: ^כו:יג וְאָמַרְתָּ֡ לִפְנֵי֩ יְ־הֹוָ֨ה אֱלֹהֶ֜יךָ בִּעַ֧רְתִּי הַקֹּ֣דֶשׁ מִן הַבַּ֗יִת וְגַ֨ם נְתַתִּ֤יו לַלֵּוִי֙ וְלַגֵּר֙ לַיָּת֣וֹם וְלָאַלְמָנָ֔ה כְּכָל מִצְוָתְךָ֖ אֲשֶׁ֣ר צִוִּיתָ֑נִי לֹֽא עָבַ֥רְתִּי מִמִּצְוֹתֶ֖יךָ וְלֹ֥א שָׁכָֽחְתִּי…

^{Num 26:12} When you finish tithing the tithe of all your produce in the third year the Year of the Tithe you shall give it to the Levite, to the stranger, to the orphan and to the widow and they shall eat it in your gates and be satisfied. ^26:13 Then you shall declare before YHWH your God ‘I have cleared out the holy [tithe] from my house and have also given it to the Levite and to the stranger to the orphan and to the widow in full accordance with your commandment…

^כו:טו הַשְׁקִיפָה֩ מִמְּע֨וֹן קָדְשְׁךָ֜ מִן הַשָּׁמַ֗יִם וּבָרֵ֤ךְ אֶֽת עַמְּךָ֙ אֶת יִשְׂרָאֵ֔ל….

^26:15 Look down from your holy habitation from heaven and bless your people Israel….”

The Place of the Poor in Priestly Legislation

The Priestly regulations do include provisions for the poor (Lev 19:9-10). Nevertheless, interested in increasing Priestly power, the Priestly regulation lavishes its tithes and other contributions on the Temple personnel.^[10] Moreover, the charity regulations have none of the severe penalties, including threats of death or excision (כרת), that we find with ritual laws or violations of the holy.

Thus, while the realization that terumah and the stiff punishments for the violation of priestly sanctity belong exclusively to P, rescues the Torah’s reputation from Yochanan Hyrcanus’ straightjacket, it does not explain why the Priestly legislation seems much less concerned about protecting the poor than it does protecting the priests.

The Priestly legislation demands to be understood on its own terms; it emphasizes the sanctity of the Tabernacle and the priesthood. The incest laws aside, it is predominantly cultic/ritual infringements that carry the penalties of death and excision (כרת). In Deuteronomy, however, the rabbis found no trace of a threat of death for violation of any of the tithes.

Could it be that the Priestly legislation, composed during the early Second Temple period, wanted to elevate the newly-found concern with ritual in general, ritual purity and defilement in particular? The latter certainly appears to acquire an almost hypostatic or dynamic potency in Priestly texts.

Some go so far as to explain the Priestly legislation’s minatory texts as warnings meant to protect people from the inevitable malevolence inherent in the forces of impurity that can prove fatal if trifled with. (Traditionalists – foremost among them the sages – reject any idea of Torah harboring such magical, perchance paganesque, notions and are obliged to come up with alternative ways of understanding these supernatural punishments.)

An entirely different approach is to view all of the Priestly legislation’s threats of heavenly punishment as rhetorical. Either way, an honest look at the Priestly text cannot evade the old question as to why such ominous rhetoric would attach disproportionately to ritual injunctions.

Whatever the reason, we may at least observe that the Priestly authors did not abandon the poor entirely. As a corrective to the emphasis on contributions to the Temple officials, we find this law:

^{ויקרא יט:ט} וּֽבְקֻצְרְכֶם֙ אֶת קְצִ֣יר אַרְצְכֶ֔ם לֹ֧א תְכַלֶּ֛ה פְּאַ֥ת שָׂדְךָ֖ לִקְצֹ֑ר וְלֶ֥קֶט קְצִֽירְךָ֖ לֹ֥א תְלַקֵּֽט: ^יט:י וְכַרְמְךָ֙ לֹ֣א תְעוֹלֵ֔ל וּפֶ֥רֶט כַּרְמְךָ֖ לֹ֣א תְלַקֵּ֑ט לֶֽעָנִ֤י וְלַגֵּר֙ תַּעֲזֹ֣ב אֹתָ֔ם אֲנִ֖י יְ־הֹוָ֥ה אֱלֹהֵיכֶֽם:

^{Lev 19:9} When you reap the harvest of your land, you shall not reap all the way to the edges of your field, or gather the gleanings of your harvest. ^19:10 You shall not pick your vineyard bare, or gather the fallen fruit of your vineyard; you shall leave them for the poor and the stranger: I YHWH am your God.^[11]