THE IMPORTANCE OF CHARITY AND THE SUPPORT OF TORAH SCHOLARS Translator’s note: As noted in the Introduction, the Netziv wrote a second preface to his commentary Ha’amek She’elah entitled Pesah Ha’amek, in which he discusses in depth the history of R. Ahai Gaon and his work, the She’iltos. I have included here a translation of two chapters of Pesah Ha’amek that pertain to the mitzvah of charity and supporting Talmud scholars. The Netziv used these two chapters to express his appreciation of those who enabled him to complete this work and those who supported Yeshivas Etz Hayyim. THE IMPORTANCE OF CHARITY¹, Part 2, os 9. I have omitted two introductory paragraphs of the Netziv, thanking God and his various supporters for enabling him to complete his work, Ha’amek She’elah. Translator’s note: In this chapter the Netziv will be inferring from the laws of zomemim (people who conspire in order to give false testimony in court) the extent to which one is rewarded for assisting others in performing mitzvos. Deut. 19:16–21 states that such people must be punished with the same consequences that they had planned for their intended victim. This reciprocal punishment applies whether the testimony involves capital punishment or monetary payments. The law of reciprocal punishment only applies when the witnesses have been discredited through hazamah, in which a second set of witnesses testifies that the first set of witnesses could not have seen the incident regarding which they testified because they were somewhere else at the time. I WOULD LIKE to provide an incentive² for those who support others in the performance of mitzvos, by proving that their assistance is equal to the one who performs the mitzvah himself, so that they may find the heart to perform [this mitzvah] with much joy and generosity.

footnotes: ¹ From Pesah Ha’amek ² Literally translated as “opening.”

It is taught in the Mishnah in the first chapter of Tractate *Makkos:*³ [Scripture states]: “By the testimony of two witnesses or three witnesses shall the one who deserves to die be put to death.”⁴ If testimony may be established by two witnesses, why does the Torah [also] specify three [witnesses]? [This was done in order] to draw an analogy between three and two [witnesses]. Just as it is obvious that three witnesses can discredit two through hazamah, two witnesses can also discredit three through hazamah. Where in Scripture [do we learn] that [two witnesses can discredit through hazamah even a number as great] as one hundred witnesses? The Torah therefore states ‘witnesses.’”⁵

footnotes: ³ Tractate Makkos 5b. ⁴ Deut. 17:6. ⁵ The word “witnesses” is superfluous as it is stated twice in the verse.

R. Shimeon says, “Just as two witnesses are not executed unless both have been found to be conspiring witnesses, so too three witnesses are not executed unless all three are established as conspiring witnesses. Where in Scripture [do we learn that this rule applies even if a group of witnesses is composed] of one hundred witnesses? The Torah therefore states ‘witnesses.’”

R. Akiva says, “The third witness is not stated so that we should deal more leniently [with the extra witness]. Rather, [this is done so] that we should deal more stringently with him, and make his [the third witness’s] punishment the same as theirs [the other two witnesses]. If this is how the Torah punished one who was merely an accomplice to transgressors, [by treating him] like the transgressors themselves, how much more so will He reward one who lends his aid to those performing a mitzvah [by treating him] like those who actually perform the mitzvah. And just as with [a group of] two witnesses, if one of [the witnesses] was found to have been a relative⁶ or disqualified,⁷ their testimony is invalid, [since only one witness remains], so too with [a group of] three. If one of them was found to be a relative or a disqualified witness, their testimony [i.e., the testimony of the entire group] is invalid. Where in Scripture do we learn [that even one witness of a set can disqualify an entire group consisting of] one hundred? The Torah therefore states ‘witnesses.’”

footnotes: ⁶ A witness related to anyone who is involved in the case. ⁷ For example, the witness is known to commit a certain sin.

Rashi, explaining the reasoning of R. Akiva, states: There would be no need [for the Torah] to teach us the [law stated by the Tanna Kamma that two witnesses can discredit even a hundred], for by logic alone we would know that two can discredit three by hazamah, for two [witnesses] are valid for all [forms of] testimony. [In addition], by logic alone we would know that the [witnesses] are not discredited through hazamah [to receive reciprocal punishment] until the entire set is discredited. For all the witnesses, [regardless of the number,] are treated as one, as Scripture states: “If the witnesses should turn out to be false witnesses,”⁸ [and the word meaning “witnesses” is written in the singular, ed, “a witness”]. [Rather, ‘three witness’ is stated] so that we should deal more stringently with him, [the third witness]. One should not argue that since without him [the third witness], the testimony would still have been established, [and therefore] we would not apply the law of hazamah. [Thus] Scripture teaches us that this [third witness] is also considered as those who have certified this matter [by testimony].

footnotes: ⁸ Deut. 19:18. Rashi comments that any occurrence of the word ed in Scripture should be translated as “witnesses.”

I have not merited understanding [Rashi’s explanation]. Because two witnesses are valid for [all forms] of testimony, would we know that the power of three witnesses is not greater than the power of two? Behold, regarding the field of umedanah, estimations in monetary law,⁹ even though an estimation of two people is sufficient, nevertheless, since we follow the estimations and [if] three others come and estimate that it is not [as the previous two had opined], we listen to [the second group instead,] as stated in Tractate Yoma 83a. Rather, regarding testimony, it must be the reason [that three witnesses are not stronger than two], is because the verse compares two witnesses to three.¹⁰

footnotes: ⁹ For example, where expert witnesses are needed to assess the value of property being used to pay off a loan. ¹⁰ This could not be derived by logic alone.

In addition, I find what Rashi writes difficult, that it would be obvious [that] three [witnesses] are not punished with death until all are disqualified with hazamah, since three witnesses are considered as one [set] of testimony. [One could also use this logic instead of] using R. Akiva’s exegesis from the verse that if we find that one of the witnesses is a relative or disqualified, [it invalidates the entire group of witnesses]; it should also be obvious that the same logic regarding the three witnesses would be comparable to two [because all of the witnesses are considered as one set]! This exegesis [of a single witness invalidating an entire group of three] is also R. Akiva’s, as is evident from Tractate Sanhedrin9a, which states, “R. Yosi and Rabbi differ in applying the opinion of R. Akiva.”¹¹

footnotes: ¹¹ One cannot argue that the Mishnah’s exegesis of a single witness invalidating a group of three, is not R. Akiva’s, for Sanhedrin 9a ties this statement to R. Akiva: “R. Yosi and Rabbi differ in applying the opinion of R. Akiva…. R. Yosi says: ‘These aforementioned limitations apply only to witnesses in capital charges, while in monetary cases, the evidence offered can be established by those remaining. Rabbi says that it is one and the same rule; whether in monetary or capital cases the evidence becomes equally void, i.e., provided the disqualified witnesses took part in the prerequisite warning. But if they were not among those who gave the warning, why should the evidence be affected by disqualified witnesses?”

I am aware of a way to answer and clarify Rashi’s explanation. However, if it were it not for his explanation, it would appear that in reality [R. Akiva’s opinion should be explained as follows]: There are two different verses pertaining to this [comparison of two witnesses to three]. One is from the parasha pertaining to idol worship, “By the testimony of two witnesses or three witnesses shall the condemned person be put to death,”¹² and the other pertains to conspiring witnesses, “By the testimony of two witnesses or three witnesses shall a matter be established.”¹³ These two verses complement one another in [determining] what may be derived. R. Akiva derives from the verse mentioning the phrase “be put to death” that if one of the witnesses was found to be a relative or disqualified, it invalidates an entire group. Yet from the verse containing the phrase regarding “shall a matter be established,” the Gemara derives that Scripture is speaking only of those who establish the facts of the matter.¹⁴

footnotes: ¹² Deut. 17:6. ¹³ Deut. 19:15. ¹⁴ Even though the murderer and sodomizer witness the act and cannot testify against themselves, thus being disqualified witnesses, they do not invalidate the testimony of the other witnesses. They are not defined as witnesses since they are not people through whom “a matter shall be established.”

Though the Tanna Kamma derives the law regarding conspiring witnesses [that two witnesses can invalidate three] from the verse that contains the phrase “be put to death,” he also [needs to] derive from the verse that contains the phrase “shall a matter be established” [that only those who will be testifying are considered as set of witnesses], words not written in the verse that contains the phrase “be put to death.” R. Akiva argues that one is forced to accept that the verse containing the phrase “be put to death” is not coming to derive these [laws of hazamah, that two witnesses can invalidate three], for this is already inferred from the verse containing the phrase “shall a matter be established.” Rather, why is “three” stated in the parasha pertaining to idol worship, in the “be put to death verse?” “So that we should deal more stringently with him and make his [the third witness’s] sentence the same as theirs,” etc.

Now, from the verse that contains the phrase “shall a matter be established” [alone], which deals with monetary matters, we would not know that the law [of reciprocal punishment] applies to capital punishment [to the extent] that the [third] conspiring witness is also killed since he is [merely] supporting the testimony [of the other two]. It is logical that [reciprocal punishment] applies in monetary cases, for if the three witnesses are discovered to be conspiring witnesses, the payment penalty is divided [equally among them] into three parts. Therefore, we find that the third witness assists in the payment of the penalty resulting from the reciprocal punishment, just as he assisted them in the testimony; thus the verse, “You shall do to him as he conspired to do to his fellow,”¹⁵ is applicable to him. For since he was a factor in the strengthening of the two witnesses’ testimony, he shares in the payment [penalty], so that he should also pay a portion and thus alleviate a portion of what they should pay.

footnotes: ¹⁵ Deut. 19:15.

However, pertaining to capital punishment, even though he wanted to assist [the other two witnesses] with their testimony, it would not enter one’s mind that he should also die if the members of [the entire group] were found to be conspiring witnesses, for he does not assist them [in any way] with his death. All he wanted to do was to assist [them], to strengthen their testimony,¹⁶ and yet we apply morethan “what he conspired to do to his fellow, is done to him” – he is killed. He does not assist them [the other two witnesses], with his death and he is killed only because of his own sin that he performed by himself. Behold, we learn from this verse that the punishment for one joining others in committing sin is the same as if he had committed the sin entirely by himself.

footnotes: ¹⁶ Since valid testimony existed without his evidence.

R. Akiva also inferred that just as when one of two witnesses is found to have been a relative or disqualified their testimony is invalid, [the same applies to three: if one of them was found to be a relative or a disqualified witness, the entire group’s testimony is invalid]. This cannot be inferred from the verse containing the phrase “shall a matter be established,” for one may argue that even when two are testifying and one of the witnesses is disqualified, the second witness is still valid as far as being able to require the accused to take an oath, a law applicable to a single witness.¹⁷ 87b. One could therefore argue similarly that when there are three witnesses, if one of the witnesses is disqualified, the testimony of the remaining two witnesses is valid. Therefore, there is the need for the verse that contains the phrase “the condemned person be put to death.” Certainly in capital cases, if one of the two witnesses was found to be a relative or disqualified, the [effect] of the second witness is nullified, so also with [a group of] three witnesses, even though two witnesses remain, their testimony is rendered invalid. From [this verse] we infer [that the same rule is applicable] to all other testimonies in the Torah, even pertaining to monetary cases.

footnotes: ¹⁷ See Tractate Kesuvos

Returning to the subject [at hand], R. Akiva understood from the manner in which those who assist others [in sin] are punished, that he who supports others [in sinning] is considered as if he had committed that sin himself even though he does not lessen the punishment of the other witnesses at all – his punishment is harsh. R. Akiva extended this concept to those who assist others in performing mitzvos. It goes without saying that if someone’s assistance lessens the amount of work performed by the principal, it should result in decreasing the amount of the principal’s reward, for “according to one’s effort is his reward.”¹⁸ 5:25. Certainly the one who assists should receive a portion of the reward [proportional] to the amount of assistance that he rendered to the principal. However, if the principal performs a mitzvah on his own, not laying aside any of his burden, when his friend comes to assist him in performing this task, I would not imagine that the one who participates would receive a reward equal to the one who performs the mitzvah by himself. It is this that [R. Akiva’s] kal va-homer¹⁹ teaches us: one who joins [others in performing the mitzvah] receives a reward as if he performed the mitzvah himself, even without reducing the amount of reward that the others receive.

footnotes: ¹⁸ Avos ¹⁹ The inference from minor to major.

Similarly, those who support others, enhancing the Torah with their money, even though they do not lessen by one iota the toil of those engaged in waging the battle of Torah – nevertheless, since they join them in this mitzvah, they are equal [in the reward reserved for the scholar’s] toil and pain.

It is written in the parasha of Ki Savo: “Cursed be he who does not uphold the words of the Torah to perform them.”²⁰ The Jerusalem Talmud in Tractate Sotah²¹ and the Vayikra Rabbah on the parasha of Kedoshim states²² that the converse is also [true]: “Blessed be the one who upholds the words of the Torah.” There it explains that “one who has not studied or taught himself, etc., but caused others to study, is included within this blessing.”²³ and the Midrash: “R. Yirmiyah said in the name of R. Hiya ben Abba: ‘If a man did not learn Torah and neither performed, observed nor taught it to others, yet maintained scholars even though he did not have the means to maintain them and protested even though he was not strong enough to protest, for this he is included in the term “blessed” (that is the converse inferred from ‘Cursed be one who does not uphold the words of the Torah to perform them).’”

footnotes: ²⁰ Deut. 27:26. ²¹ Chapter 7, halachah 4. ²² Parashah 25. ²³ To quote both Sotah

(Netziv’s addendum – I will now be able to explain the [following] verses in I Samuel, chapter 30²⁴: Like the share of the one who goes down to do battle, so is the share of the one who stays with the [soldiers’] equipment; they shall share alike. It was from that day u-ma’alah (onward), that he [David] established a statute and an ordinance for Israel unto this day. The phrase “Like the share of the one who goes down to do battle, so is the share of the one who stays with the [soldiers’] equipment” does not read well. It would have been better to state, “As one who goes down to do battle so is one who stays with the [soldier’s] equipment; they shall share alike.” Also, the word u-ma’alah is used for “onward” [which really means “and above”]. It would have better to use the word ve-halah[“onward”], (a [note on this strange wording] is already provided in Bereshis Rabbah, parasha 43). In addition, it is unclear how “that he made a statute and an ordinance for Israel unto this day” relates to the simple understanding in this particular context.

footnotes: ²⁴ Verses 24 and 25.

Rather, it appears that another matter is being alluded to, one unrelated to the context of the parasha, as I wrote in Part 2,²⁵ of the prophetic style. What the verses are alluding to is the battle of Torah, and so it is referred to in Scripture as seen from what the Sages wrote [pertaining to the verses]: “Behold the couch of Solomon, sixty mighty men round about it…. They all handle the sword, skilled in warfare.”²⁶ on verse 7: that the sixty mighty men refer to scholars who are well versed in the sixty tractates of the Talmud. See Rashi (on verse 8) that “skilled in warfare” represents those who are skilled in the battle of Torah. Also see the Sifrei on Ha’azinu, explaining the verse “craftsmen, the gate sentries, one thousand, all mighty men, warriors,”²⁷ [as referring to the battle of Torah].²⁸is discussed by the Netziv in Part 1, chapter 8. To quote the Sifrei: “What war do people bound in fetters and chains wage? Rather, they were mighty men of Torah who waged the war of Torah [through pilpul].”

footnotes: ²⁵ Chapter 6. ²⁶ Song of Songs 3:7–8. See Rinah shel Torah ²⁷ “He [Nebuchadnezzar] exiled all Jerusalem and all the officers and all the mighty warriors, ten thousand exiles, and all the craftsmen and the sentries of the gates” (II Kings 24:16; Jeremiah 52:28). ²⁸ This Sifrei

It is known that it is impossible to fight the battle of Torah without the support of those who provide supplies. This is comparable to those who guard the equipment [required] for a war involving hand-to-hand combat. [This verse] would not be needed to teach us how a good reward is provided in this world to those who support others with kindness in this world, [as we already know] of the reward of those who are charitable: that they eat the fruit [that is, they receive the reward] in this world.²⁹ 40a, that this is known from Prov. 21:21, “He who pursues charity and brotherly love shall find life, prosperity and honor.” “Life” refers to the reward in the World to Come, while “prosperity and honor” refer to the reward received in this world. Rather, our sages of blessed memory taught us in Tractate Pesahim 53, “Whoever puts merchandise into the Torah scholars’ purses merits to sit in the heavenly academy, as Scripture states, ‘For to sit in the shelter of wisdom is to sit in the shelter of money.’³⁰ “Behold, we see that he receives reward together with the possessors of Torah.

footnotes: ²⁹ See Tractate Kiddushin ³⁰ Eccl. 7:12.

According to this [line of reasoning], the reward of the one who stays with the equipment [i.e., the supporters of those who wage the battle of Torah] is greater than the one who actually studies, for [the supporter] receives a reward both for being charitable and for [being considered] as studying Torah. Therefore, the proper interpretation [of the verse in Samuel] is that the share of reward for the one who is immersed in the battle [of Torah] is the same as for the one who sits with the equipment [provides support]. This one according to his toil, and this one according to his kindness; together they shall receive the [reward]. “For that day and beyond,” meaning [for that moment of supporting Torah study], is more lofty than those involved in hand-to-hand combat – the battle of Torah. And “he made it a hok [statute] and a mishpat [ordinance]” – this rule [of receiving a greater reward is when one supports those who produce] hok and mishpat, resulting from the battle of Torah.³¹ [In other words, pilpul is applied to formulate rules, represented by hok, and to use those rules to derive laws of practice, as represented by mishpat]– end of Netziv’s addendum).³² and mishpat are explained in Part 3, chapter 8.

footnotes: ³¹ This great reward for the support of Torah study is reserved for those supporting others involved in pilpul to determine Halachah. ³² See how hok

Truly, if the supporters [of Torah] would only realize the greatness produced by their acts, they would find the heart to perform them with more joy and generosity, enhancing their blessing even more.

This is stated in the Midrash [Rabbah] on the Book of Ruth: R. Yitzhak ben Merion said: “Scripture teaches us that if a person performs a mitzvah, he should perform it with a full heart. If Reuven had known that the Holy One, blessed be He, would write of him, ‘Reuven heard and saved him [Joseph] from their hand,’³³ he would have carried him on his shoulders and brought him to his father. And if Aharon had known that that the Holy One, blessed be He, would write of him, ‘Behold, he [Aharon] is going out to meet you [Moshe], and when he sees you he will rejoice in his heart,’³⁴ he [Aharon] would have gone out to greet him with drums and cymbals. Had Boaz known that the Holy One blessed be He would record of him, ‘He handed [Ruth] parched grain, and she ate and was satisfied and had some left over,’³⁵ he would have fed her fattened calves. R. Kohen and R. Yehoshua of Sichnin said in the name of R. Levi, “In the past, when a person performed a mitzvah, the prophets would record it. However, now when a person performs a mitzvah, who will record it? Eliyahu will record it, and it will be sealed by the hands of the Messiah and the Holy One, blessed be He. This is what Scripture states: ‘Then those who fear the Lord spoke to one another,³⁶ and the Lord listened and heard, and a book of remembrance was written before Him for those who fear the Lord and those who give thought to His Name.’”³⁷

footnotes: ³³ Gen. 37:21. ³⁴ Ex. 4:14. ³⁵ Ruth 2:14. ³⁶ That is, Eliyahu speaks with the Messiah. ³⁷ Mal. 3:16.

May each and every one of His nation be blessed. May they experience His World during their lifetime, and may the Lord rest upon them, becoming their splendid power,³⁸ as befitting one who is laden with great service, blessed [with His] love.

footnotes: ³⁸ See Psalms 89:18.