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Eighteen Treatises from the Mishna, by D. A. Sola and M. J. Raphall, [1843], at sacred-texts.com
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The commandments on which these precepts are founded, or from which they are derived, are contained in various places of the Pentateuch. The fourth commandment of the Decalogue enacts:—"Remember the Sabbath-day to keep it holy. Six days shalt thou labour and do all thy work, but the seventh day is the Sabbath of the Lord thy God; in it thou shalt not do any work, thou, nor thy son, nor thy daughter, nor thy man-servant, nor thy maid-servant, nor thy cattle, nor thy stranger that is within thy gates. For in six days, the Lord made heaven and earth, the sea, and all that is therein, and rested the seventh day; wherefore the Lord blessed the Sabbath-day and hallowed it." (Exod. xx. 8–11.) And again: "Keep the Sabbath-day to sanctify it, as the Lord thy God hath commanded thee: Six days thou shalt labour, and do all thy work; but the seventh is the Sabbath of the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, nor thy man-servant, nor thy maid-servant, nor thine ox, nor thine ass, nor any of thy cattle, nor thy stranger who is within thy gates; that thy man-servant and thy maid-servant may rest as well as thyself: and remember that thou wast a servant in the land of Egypt, and that the Lord thy God brought thee out thence, through a mighty hand, and by a stretched-out arm; therefore the Lord thy God commanded thee to keep the Sabbath-day" (Deut. v. 12–15.)
[paragraph continues] In various other parts of the Pentateuch the due observance of the Sabbath is again and again enforced; sometimes briefly mentioning the day as one to be kept inviolate and holy: and sometimes with greater emphasis, referring to the history of creation, and establishing the observance as a sign and covenant between the Lord and Israel. Such texts are Exod. xiii. 12; xvi. 15; xxxi. 13–17; xxxiv. 21; xxxv. 1–3: Lev. xix. 29; xxiii. 32: Num. xv. 9, &c. But while the general principle is thus frequently inculcated, its special application, and specific enactments as to what constitutes a violation of the Sabbath, are nowhere carried out fully in the Pentateuch, so that there are but few texts of the law which serve as a direct basis for the minute and numerous enactments of the oral law.
The Mishna enumerates 39 aboth, or principal occupations, the carrying on of either of which constitutes a violation of the Sabbath. Every other kind of work becomes illegal, only when it can be ranged under one or other of these principal occupations. Thus, for instance, under the principal occupation of ploughing, every analogous kind of work, such as digging, delving, weeding, dunging, &c. must be ranged. In addition to these thirty-nine principal occupations, and their accessaries and derivatives, there are certain other acts which are especially prohibited in the oral law, as tending to violate the Sabbath-rest [שְׁבוּת]. In the violation itself various degrees of culpability are established, and of punishment awarded. All these subjects relating to the due observance of the Sabbath, and pointing out its violation in every possible way, form the contents of the Treatise Sabbath.
In order properly to understand this Mishna, and to avoid tedious repetitions, it is necessary to begin by noticing certain general principles, and technical expressions, which predominate in the text,
Wherever, throughout the Mishna, the expression הַיָיב guilty or פָּטוּר absolved, is used, the meaning is:—of the first [guilty] that the wanton transgressor forfeits his life: if there be evidence sufficient to convict him, he is stoned to death: in the absence of proper evidence, should the offender, after having been cautioned, repeat his guilt, he is liable to be "cut off from his people" [כָּרוֹת]: 1 and that he who unwittingly or inadvertently offends, must bring the sin-offering prescribed in the law. The second expression [absolved] means that the accused is absolved from either of these extreme
punishments, but not from the stripes which the Beth-Din has the power to inflict. So that (with some few exceptions only) the deed he has been charged with is in no instance sanctioned, or declared to be permitted.
If through the doing of something not prohibited, some other (prohibited) occupation is inadvertently entered upon, it constitutes no offence. But this must not be done intentionally, nor the lawful occupation be entered upon, with the covert purpose of making it serve as a cloak to do that which is prohibited.
In the degrees of violation, the nature of the occupation is to be considered, as various kinds of work may be required to carry out and complete one occupation; so that the offender becomes amenable to several punishments. On the other hand, the rule is laid down, that such occupations as only destroy, but do not produce, do not constitute guilt, (in the rigorous sense of the word); nor yet does such work, of which an imperfect or incomplete part only has been done.
The prohibition to carry or convey any object from one place to another, which, in Chap. I, § 1, of this treatise, is called יְצִיאַת הַשַּׁבָּת and forms the thirty-ninth of the principal occupations, requires particular attention and explanation, from the complexity of cases to which it gives rise. All space was, by the Tanaim, divided into four classes:—1st, רְשׁוּת הָרַבִּים, public or common property, to which all men have an equal right: as a highway; any street not less than sixteen amoth wide, uncovered and open at top and bottom; every market-place, &c. 2nd, רְשׁוּת הַיָּהִיד, private property: any place surrounded or inclosed by a wall or a ditch ten hands wide and four deep; also the ditch itself; any city encompassed by walls with gates that are closed at night, &c. 3rd, כַּרְמֵלִית, (derived either from the Hebrew Carmel, forest or lonely spot, or from the Greek κηραμις keramis, a corner, or hollow way), that which does not belong to either of the other two; because it lies entirely open, like the sea or a plain; or because it is enclosed on three sides only, and open on the fourth, &c. 4th, מָקוֹם פָּטוּר, a free place, one which. is more than three hands deep or high, but not more than four hands square in width, such as a column or small cavity, &c. When in the text of the Mishna the question is about carrying and conveying from one place to another, it does not apply to the "free place," as that is not subject to any legal enactments. Moreover, the open air above private property has no legal limitation, whereas that over public property, or carmelith, only belongs thereto to the height of
ten hands. The carrying or conveying from one reshuth to another does not constitute a complete or perfect action, unless the same person who takes a thing from the place it occupies, deposits it in another place.
These preliminary remarks, so much more extended than those prefixed to any other treatise, are absolutely required to obtain a correct and comprehensive view of general principles, and will serve as references, to avoid frequent and tedious repetitions.
35:1 By the act of God.