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Texts and Studies in Ancient Judaism
Texte und Studien zum Antiken Judentum

Edited by
Martin Hengel and Peter Schäfer

109
 Judith Hauptman

Rereading the Mishnah

A New Approach to Ancient Jewish Texts

Mohr Siebeck
JUDITH HAUPTMAN: b o r n 1943; B A in Economics at B a r n a r d College (Columbia Univer-
sity); B H L , M A , P h D in Talmud and Rabbinics at Jewish Theological Seminary; is
currently E . Billy Ivry Professor of Talmud and Rabbinic Culture, Jewish Theological
Seminary, NY.

978-3-16-158757-3 Unveränderte eBook-Ausgabe 2019

ISBN 3-16-148713-3
ISSN 0721-8753 (Texts and Studies in Ancient Judaism)

Die D e u t s c h e Bibliothek lists this publication in the D e u t s c h e Nationalbibliographie; de-

tailed bibliographic data is available in the Internet at http://dnb.ddb.de.

© 2005 by Judith H a u p t m a n / M o h r Siebeck, Tübingen, Germany.

This book may not be reproduced, in whole or in part, in any f o r m (beyond that permitted
by copyright law) without t h e publisher's written permission. This applies particularly to
reproductions, translations, microfilms and storage and processing in electronic systems.

T h e book was printed by G u i d e - D r u c k in Tiibingen on non-aging p a p e r and b o u n d by

Buchbinderei Spinner in Ottersweier.

Printed in Germany.
 • m m i^DH t n

In memory of my brother, Philip Jonathan Hauptman,

a heroic physician, who died on Rosh Hodesh Nisan 5765
 Contents

Preface IX

Notes to the Reader XII

Abbreviations XIII

Chapter 1: Rethinking the Relationship between the Mishnah and the

Tosefta 1
A. Two Illustrative Sets of Texts 3
B. Theories of the Tosefta's Origins 14
C. New Model 17
D. Challenges and Responses 25
E. This Book 29

Chapter 2: The Tosefta as a Commentary on an Early Mishnah 31

A. The Theory 31
B. Four Illustrative Sets of Texts 34
C. Conclusions 49

Chapter 3: Rewriting Tosefta's Halakic Paragraphs for Inclusion in the

Mishnah 50
A. How Old is the Haggadah? 50
B. Giving Teeth to Tooth: How the Redactor of Mishnah
Reduced Liability for Damages by Tooth 64
C. Compensating Women for Physical Assaults 74
D. Eruvei Tavshilin 86
E. Differing Recollections of Harvesting the Omer 97

Chapter 4: Condensing Aggadah 109

A. The Blessings and Curses at the Mountains 109
B. Boundless Gratitude: Mentioning the Exodus at Night 125
C. Eglah Arufah as a Case of Aggadic Expansion 142
D. A Grand Preparation for a Nighttime Celebration 145
VIII Contents

E. Niqanor's Copper Gates 148

F. Bilgah's Punishment 150
G. Asking for Forgiveness 152

Chapter 5: Editing for Ease of Memory 157

A. The Financial Arrangements of Marriage 157
B. Four Sources of Damage, Two Related Mishnahs 164
C. Five or Six or Eleven Wild Animals 173
D. The Men Who Return Home from War 188
E. Speaking Hebrew, the Holy Tongue 196
F. Numeric Mnemonics 207

Chapter 6: From Tosefta to Mishnah to Talmud 231

A. Children and Fasting 231
B. Testimony Based on Childhood Memory 242

Chapter 7: A New Model of the Mishnah-Tosefta Relationship 255

A. From Tosefta Atiqta to Matnita Hadeta 255
B. Implications for Future Research 259
C. Summary of Textual Analyses 262

Bibliography 265

Source Index 269

Index of Modern Authors 279

Index of Subjects 281

 Preface

— Change is the only constant (anonymous aphorism)

I began researching the relationship between the Mishnah and the Tosefta
about fifteen years ago, first reporting on it at the Tenth World Conference of
Jewish Studies in Jerusalem in 1989. My main point was that paragraphs of
Tosefta Gittin served as the basis of paragraphs of Mishnah Gittin. The
presentation was later published in the Proceedings of the Conference (August
1990). From that time on, when reading Mishnah and Tosefta, I would look
first at the Tosefta and only afterwards at the Mishnah. As a result, I was
often able to produce better interpretations of the Mishnah, closer to the
simple meaning of its words. This reading strategy also solved serious
problems regarding the Tosefta. For instance, the fact that Tosefta paragraphs
often did not follow the order of the Mishnah made sense if one assumed that
the Tosefta was earlier than the Mishnah. Growing ever more convinced of
the value of this new approach, I presented my theory at the Annenberg
Conference in May 1990 (Philadephia), published several more articles on it,
and spoke about it again in 1993 at the Eleventh World Congress.
Let me backtrack a bit. My interest in tannaitic materials grew out of my
doctoral research. In investigating the phrase tanya nami hakhi (thus is also
taught in a "baraita"), I discovered a solution to the redundancy associated
with this expression. The problem noted by many was that a baraita intro-
duced by this phrase often repeated the preceding memra (amoraic dictum)
verbatim. Textual comparisons revealed that before the text of the baraita was
modified, the memra did not merely repeat the following baraita but instead
made a comment of significance. In the course of time, however, similar texts
have a tendency to become identical. The innovative point of the memra, I
claimed, was inadvertently copied "down" into the following baraita. This
created the impression of redundant sources.
As I studied case after case of a baraita introduced by this phrase, I began
to notice that in the ancient period a mishnah was typically studied together
with its associated baraitot, many of which are found in the Tosefta. I
suggested in the last chapter of my dissertation, published in 1988 as a book,
that a standard pericope in the Talmud - Bavli and Yerushalmi alike -
contains a tannaitic substratum composed of mishnah and related baraitot. If
so, I had considerably expanded the then regnant two-source theory, which
X Preface

saw only the amoraic and stama degemara layers as defining elements of the
pericope. My three-source theory posited three major components of the
Talmudic sugya: a tannaitic layer of mishnah and baraitot, an amoraic layer
of memrot, and an interpolated, late layer of stama degemara.
It was this study of baraitot that led me to begin comparing M and T Gittin
systematically. I was hoping to discover that the Tosefta's pattern of divorce
legislation was different from the Mishnah's. As I worked my way through M
and T Gittin, comparing the two corpora paragraph by paragraph, not only did
I find that there was a difference in their approach to divorce but also, and
even more important, that many paragraphs of the Tosefta made no sense if
assumed to be a commentary on and supplement to the Mishnah. It then
occurred to me that many problems would be solved if the Tosefta were seen
as the basis of the Mishnah.
After I entered these ideas into the public domain, others adopted them.
The three-source theory has been extensively utilized by S. Friedman in his
Talmud Arukh. As for the theory of Tosefta's priority in regard to specific
paragraphs, it has become a standard feature of recent, critical scholarship.
The difference between my work and that of other investigators of
Mishnah-Tosefta issues is that I have turned my findings of 1989 into a global
theory. I suggest in this volume, and in papers already published, that there
existed a collection called Tosefta even before the Mishnah came into being.
It served both as the basis of some paragraphs of the Mishnah and as a com-
mentary on many others.
Those who peruse this volume are invited to ponder anew the relationship
of the Tosefta and the Mishnah. Many theories have been proposed in the
past. I now add mine to that long list.
Let the readers judge for themselves if the arguments presented in this
book are persuasive.

Many people over the last ten years have assisted me in thinking through the
issues I deal with in this book. I will mention a few by name, but I owe a debt
of gratitude to many others.
I wish to thank Shaye J. D. Cohen, Joseph Davis, Steven D. Fraade,
Shamma Friedman, Alyssa Gray, David Halivni, Christine Hayes, Martin
Jaffee, Elie Kaunfer, David Kraemer, Jacob Neusner, Tzvi Novick, Jay
Rovner, Seth Schwartz and Zvi Steinfeld. Each in his or her way helped me in
my research. Some read chapters and critiqued them, some offered encourage-
ment, and some discussed ideas with me. Special thanks to Richard Kalmin
who did all three.
Special thanks also to Robert Brody for reading and critiquing the entire
ms. and to Shmuel Sandberg for reviewing the entire ms. and improving its
clarity and articulation. Responsibility for the finished product lies with me
alone.
 Preface XI

I wish to express my gratitude to Peter Schäfer for his continuing interest

in and support of this project.
I thank my students over the years for lively and insightful discussions of
the subject matter of this volume.
Thanks to the Jewish Theological Seminary for an Abbell research grant.
This manuscript was prepared in camera-ready copy by Steven Siebert,
using Nota Bene. I wish to thank him for being unfailingly gracious regarding
all matters, large and small.
My thanks to Yael Weinstock for preparing the source index and assisting
me in a variety of ways.
Heartfelt thanks to my husband Milton Adesnik and my three sons Ariel
David, Moshe Jed, and Hillel Azriel Adesnik, for ongoing, sometimes heated
discussion of the topics of this book. As the Bible instructs, we spoke words
of Torah "when staying home, traveling about, lying down, and getting up."
My family also offered me invaluable assistance in reading and critiquing
various chapters of the ms. Their forbearance and patience are beyond
acknowledgment.
I have dedicated this book to my brother, Philip Jonathan Hauptman who,
most regrettably, did not live to see it in print. A kind, compassionate, and
talented psychiatrist, he devoted himself to his geriatric patients far beyond
the call of duty. He was a constant source of encouragement to me.
 Notes to the Reader

In general, the translations of rabbinic texts are my own. Exceptions are

noted. The Tosefta translations are taken, with occasional modifications, from
J. Neusner's The Tosefta. The bracketed words are explanatory insertions.
Rabbinic texts have been downloaded from the Bar Ilan database. They
have been checked against Albeck's edition of the Mishnah and Lieberman's
edition of the Tosefta. Those tractates not included in Lieberman's edition
have been checked against Zuckermandel's edition.
The references to the Talmud Yerushalmi (Palestinian Talmud) are
presented in two ways. The first is by chapter and paragraph (halakhah or
mishnah) and the second by page and folio. The second reference is keyed to
the standard one-volume Leiden/Venice edition of this Talmud.
Ms. variants appear in the notes. The Mishnah manuscripts consulted were
Kaufman, Parma, and Paris. The Tosefta variants are taken from Lieberman's
critical apparatus.
When a reference is to the Mishnah as an entire work, the "M" is
uppercase. When a reference is to one paragraph (mishnah) within the larger
work, the "m" is lowercase. The same is true of ur-Mishnah and ur-mishnah.
God is referred to in the masculine for ease of reference only.
The generations of individual tannaim, indicated as T1-T6, are taken from
Albeck's list in Mavo Lamishnah.
Although this text makes reference to "readers" of Mishnah and Tosefta in
the ancient world and calls the collections "documents," the model throughout
is one of oral texts that are memorized and transmitted from one learned
person to the next. The verb "rewrite" is not to be taken literally. It means to
reformulate.
 Abbreviations

AJS Association for Jewish Studies

BB Baba Batra
BM Baba Mezia
BQ Baba Qamma
BT Talmud Bavli
HTR Harvard Theological Review
JJS Journal of Jewish Studies
JSIJ Jewish Studies Internet Journal
M Mishnah
PT Talmud Yerushalmi
RH Rosh Hashanah
R Rabbi
Rabbi Rabbi Judah ha-Nasi
T Tosefta
 Chapter 1

Rethinking the Relationship

between the Mishnah and the Tosefta

Even the most cursory glance at the Tosefta (T) reveals how similar it is to the
Mishnah (M). The Tosefta's statements are authored by the same spokesmen,
in the same language,1 on the same topics, and are presented in roughly the
same order.
Because of these similarities, many scholars have long thought that the
Tosefta emerged later than the Mishnah and that it was the Mishnah's first
commentary.2 A few have regarded it as a collection of material that remained
after the redactor of Mishnah made his "cut."3 But there is a another pos-
sibility: the Tosefta existed as an ordered collection prior to the time of the

' E. Y. Kutscher and M. Moreshet both hold that the Hebrew of the Mishnah and of the
Tosefta is m h l , leshon hakhamim aleph. See E. Y. Kutscher, A History of the Hebrew
Language (Jerusalem and Leiden, 1982), 116, and M. Moreshet, "Habaraitot Ha'ivriyot
Babavli Einan Leshon Hakhamim Aleph," Sefer Hazikkaron Lehanokh Yalon (Ramat Gan,
1975), 275-314. Moreshet further claims that when the Talmud cites a baraita from the
Tosefta, later additions sometimes find their way into the baraita because editors felt they
had a free hand to alter the language. These additions are written in mh2.
2
Y. N. Epstein, Mevo 'ot Lesifrut Hatannaim (Tel Aviv, 1957), 242; H. Albeck, Mehqarim
Bevraita Uvetosefta (Jerusalem, 1944), 184; S. Lieberman, Tashlum Tosefta (Jerusalem,
1970), 21; A. Goldberg, The Literature of the Sages, part 1 (Phildelphia, 1987), 283; J.
Neusner, The Tosefta, Its Structure and Its Sources (Atlanta, 1986), ix. See below. An issue
for many who say that the Tosefta emerged later than the Mishnah is how to explain the
presence in the Tosefta of so much material that clearly predates the publication (in whatever
form) of the Mishnah. They respond that the early Tosefta material was composed before the
Mishnah came into being, did not get selected for inclusion in the Mishnah, and continued to
circulate in bits and pieces until the editor of the Tosefta incorporated them into his
collection. These theorists thus hold that the Tosefta is a later collection containing much
material of early vintage. If the pieces are very small, I find it hard to understand what it
means that they circulated orally on their own. How could so many bits and pieces float about
freely and not get lost? If the bits and pieces are large, then that is not so different from what I
am saying. If the same theorists who hold the "bits and pieces" opinion also hold that
different tannaim produced their own Mishnah collections, then why not also say that these
many bits and pieces circulated in a collection? Epstein makes such an assumption when he
says, basing himself in part on BT Sanhedrin 86a, that the Tosefta of R. Nehemiah followed
the order of the Mishnah of R. Akiba. This suggests an early Mishnah and an early Tosefta.
3
The remaining material is called mtran TH£>. See A. Houtman, Mishnah and Tosefta
(Tübingen, 1996), 9-10, who describes how Samuel ha-Nagid first introduced this idea.
2 Chapter 1: Rethinking the Relationship between the Mishnah and the Tosefta

Mishnah; many of its paragraphs served as building blocks of the Mishnah.

That is, the redactor of Mishnah rewrites, 4 reconceptualizes, and reorders the
Tosefta collection, and other old materials, to produce his own work. 5
If the Tosefta preceded the Mishnah, then the Mishnah can be read against
the background of its sources. This is a little like reading the United States
constitution together with the record of the constitutional convention. We can
gain a deeper and more precise understanding of the Mishnah if we see how
the redactor refashioned earlier material, for what reason, and to what end. 6

Others followed in his footsteps.

4
1 assume throughout this book that transmission of rabbinic texts was oral. See n. 24.
5
1 am not suggesting that the Mishnah was fashioned from the Tosefta alone. But unlike
most other sources that flowed into the Mishnah, the Tosefta is extant today, as are the
halakic midrashim, which contain tannaitic material but may have been redacted in the
amoraic period. As for other sources of the Mishnah, many scholars speak of early Mishnah
collections of specific tannaim. The problem, to my mind, is that these are hypothetical
constructs. If R. Akiba or R. Meir produced a Mishnah, there is no evidence that they did so.
All one can point to are those places in the Mishnah where the view of R. Akiba
predominates for several paragraphs and even chapters. It is also possible to point to
statements in the Talmud that say that R. Akiba played a special role in editing rabbinic
materials. See Epstein, Mevo'ot, 71, who identifies old chapters of the Mishnah. He says that
R. Akiba began a new period in Mishnah production. The tanna produced new halakot by the
hundreds and examined old halakot and corrected and edited them, . . . m n . . . ip,n. But
Epstein cannot produce R. Akiba's Mishnah collection because, Epstein claims, R. Meir
incorporated R. Akiba's collection into his own. And R. Meir's Mishnah was incorporated
into "our" Mishnah. These old collections cannot, therefore, be identified. In his chapters on
each of the prominent tannaim, Epstein demonstrates that anonymous mishnahs can be
attributed to individual tannaim. However, the fact that their views appear in the Mishnah,
and that even whole chapters can be attributed to them, only suggests that the editor of the
Mishnah accepted the views of different people for different topics. It does not prove that
each of these tannaim had a complete Mishnah collection, from Berakhot through Oqzim.
Epstein, Mavo Lenusah Hamishnah (Jerusalem, 1948; 1964), 18, further says that Rabbi
taught the Mishnah to his son R. Simon, and to most of his students, according to the opinion
of one tanna, and to his student Levi according to the opinion of another tanna. The text of the
Mishnah is according to what he taught Levi and the text of the Tosefta is according to the
what he taught his son and his other students. In this way Epstein accounts for those places
where the wording of the rule in the Mishnah differs from the wording of the same rule in the
Tosefta. The problem of different versions of the same rule is real. His theory does not seem
to be substantiated.
6
C. Minkowsky, "Vayiqra Rabbah, Parashah 28, Hapetihta Harishonah . . . ," Tarbiz 71
(2002), writes in praise of the comparative method. He says that investigating parallels is a
principal way of gaining a deeper understanding of rabbinic literature. It can teach how
primary and secondary editors created their works from the material available to them.
Examining small units reveals differences of versions of text. Examining larger units, which
is harder, reveals differences of order and organization. Minkowsky speaks of midrashic
collections. The same holds true, to my mind, for Mishnah and Tosefta comparisons.
 A. Two Illustrative Sets of Texts 3

A. Two Illustrative Sets of Texts

The best way to grasp the significance of this approach is to consider a num-
ber of examples. Below is a short and clear one.

1. How to Pray on the Road

n n i r a i pnD m m n m i r a
n o n x TTrr 7 t V *7i:r i r x dxt 7 t n a n n bv b a n r r n
.N^unpn t n p r r n i i w ID1? n x lis 1 n o n x Tmn 1 ? ^•D1 i r x n x i

IT RO^N J PID RRO-A xnooiri

Y^onn IK1? nxi ^ s r n rraa1? I T m a n n m x ^ ' a i1? iff1 a s n a n n ^y r a n n^n
laipan
. f i n a -a1? x r r w i r ^ n i l a i p o n V ^ n a i d r m ID t o 'IN

M Berakhot 4:5
One who was riding on an ass, he should dismount [and pray]. But if he cannot
dismount, he should turn his face.
But if he cannot turn his face, he should direct his heart to the chamber of the holy of
holies.

T Berakhot 3:18
One who was riding on an ass: if there is someone who can hold the ass, he should
dismount and pray; but if not, he should pray in his place [on the ass].
Rabbi says: In either case [whether he does or does not have someone to hold the ass],
he should pray in his place as long as his heart directs. 8

M Berakhot 4:5 speaks about praying on the road. It says that if a traveler is
unable to dismount from his ass, then turning his face or body when praying,
or even just directing his heart to the holy of holies, is sufficient. The parallel
passage in the Tosefta deals with the same subject, in similar words, but
presents a dispute. The first tanna says that one should dismount if possible; if
not, one should pray in place. Rabbi (Judah haNasi), a late tanna, dissents and
says that there is no need to dismount. A person may pray in place as long as
he directs his heart.
Which of these two, closely related texts is older? 9 It would be hard to
argue in this case that the Tosefta responds to the Mishnah. It is improbable
that Rabbi and another tanna would take the Mishnah's rule about prayer and

7
Kaufman MS (of the Mishnah) reads 3131. Erfurt MS (of the Tosefta) also reads aim.
8
The expression "to direct the heart" derives from Psalm 10:17. The rabbis understood
the verse to be saying that if a person directs his heart, God inclines his ear. See T Berakhot
3:4.
9
Orality theory denies the validity of such a question. See below for a discussion of this
matter.
4 Chapter 1: Rethinking the Relationship between the Mishnah and the Tosefta

create two opinions, neither of which matches the Mishnah. 10 The Mishnah
says that one has to get down off the ass to pray, if possible, but Rabbi says
that one may stay "in the saddle" and pray, even if it were possible to dis-
mount. The Mishnah says that if a person cannot turn his body to Jerusalem,
then in addition to praying, he has to direct his heart to the holy of holies. But
the first tanna in the Tosefta says that if one cannot dismount, he should pray
in his place on the ass.
It appears likely that the Mishnah was produced in response to the Tosefta
and is the more recent of the two texts. The redactor of Mishnah seems to
have known the Tosefta paragraph and have resolved the dispute, creating a
hybrid view that reflects his own thinking and maybe even his own theology.
He takes the idea of dismounting for prayer, when possible, from the first
tanna, and the notion of directing one's heart from Rabbi." But the redactor
of Mishnah adds that the heart must also be directed toward the holy of holies.
He lifts this extra phrase from the immediately preceding Tosefta paragraphs
(T 3:15, 16) which say that all Jews, depending on where they are, must face
either Israel or Jerusalem or the temple or the holy of holies for prayer. The
phrase "direct his heart to the holy of holies," as it appears in the Mishnah,
does not apply only to Jews who find themselves in the temple, as it does in
the Tosefta, but to Jews who cannot turn their bodies in the desired direction.
The Mishnah uses this phrase to indicate that even Jews far away from the
temple, who are not able to face Jerusalem, should direct their hearts, not their
bodies, to the holy of holies. This is a new idea. 12

10
I am not raising, at this point, the issue of tannaitic statements in the Tosefta that,
perforce, are older than the Mishnah. If attributions are reliable, there is much "old" material
in the Tosefta. I am defining "old" as earlier than the redaction of the Mishnah.
' 1 Note that the redactor of Mishnah knows the views of Rabbi, a tanna of the fifth
generation (T5). This difference between the view of the redactor and that of Rabbi casts
doubt on Rabbi as the redactor of Mishnah, unless we also assume that when editing he
modifies his own opinion. The difference also suggests that the redactor of Mishnah accepts
(in part) views of T5 tannaim but sometimes deletes their names.
12
It is repeated in the next mishnah (M Berakhot 4:6) which says that those traveling by
boat or wagon should direct their heart to the chamber of the holy of holies. The phrase
"direct the heart" in the Tosefta varies in meaning depending on where the traveler is. U.
Ehrlich, "Meqom Hashehinah Betoda'at Hamitpallel," Tarbiz 65 (5756), 315-329, writes that
the notion of prayer towards the Shekinah in the temple was widespread in the period of the
temple. The expression "towards the chamber of the holy of holies" is found only in very old
mishnahs. The rule of turning one's face to the temple is attributed to early tannaim. As time
passed, other approaches came to the fore, such as praying toward the Shekinah that is
present in the synagogue. Ehrlich's views support the one presented here, that the Tosefta's
notion of facing the holy of holies is older than the view of the corresponding mishnah which
suggests directing only the heart to the holy of holies, when turning the body is not possible.
 A. Two Illustrative Sets of Texts 5

Note also that the Mishnah introduces the phrase, lehahazir panim, to turn
the face, 13 to denote physical turning, and then employs the phrase, lekhaven
et halev, to direct the heart, to denote spiritual turning only. The Tosefta uses
the expression lekhaven et halev to denote both.14 This differentiation of terms
also points to the newness of the Mishnah's formulation relative to the
Tosefta's. 15

2. How Many New Years?

The following textual analysis is long and complex. It is worth following
because the results are suggestive. 16 Comparative analysis will demonstrate
that the redactor of Mishnah knows the Tosefta material on the various new
years and rewrites it to make several points of his own.
n p i s m w n w i n ruwa

:nn one? w i n¡nix

D ^ n 1 ? ! n ' ^ a 1 ? ruwn w t n i c ^ n 7n>a
' - u i r a 7nxa a n n i x iiynw - a n i r y ^ x -an n n r a -wya 1 ? n]tt>n c x n ^ ¡ a 7nia
nip-r^ nrm1? mVrn^i r c r a ^ i tnw1? mwn win n ^ r a in»a
.13 -mi nwam annix bbn rra ira nmri tyxb ruiz^n Win 7nxa
n mwa
nn'j n'ron crp-is mnixn
n x i a n n bv noD3
f r x n mTD mxjn17(i)

13
Also found in M Pesahim 7:13 and T Pisha 6:11.
14
The Tosefta (T Berakhot 3:15, 16) says that those outside the land must face Israel
when praying, those inside the land must face Jerusalem, those inside Jerusalem must face the
temple, and those in the temple must face the holy of holies. In this way, the Tosefta
continues, all of Israel will pray to one and the same place. The expression used throughout is
D31? rat T^TOa. It denotes turning the body in a specific direction. In T 3:18, Rabbi uses this
same expression to denote turning of the heart but not the body. He does not require turning
the body to the holy of holies, just turning the heart.
15
M Berakhot 5:1 says that the early pious men used to spend time before prayer so that
they could direct their hearts to the Maqom, the Place, cnptt1? Da1? nx iid 1 ® 'ID. I think God is
called Place in this mishnah because the phrase "to direct one's heart" locates God in a place
and it is to that place that one prays. Or maybe Maqom in this mishnah means holy of holies,
as it does in M 4:5, 6 and not God per se. See Bereshit Rabbah 68:9, "Why is God called
Maqom? Because He is the world's Place. But the world is not his place," meaning he is
more extensive.
16
Several years ago I heard a lecturer say that if there ever were a clear case of the
Tosefta commenting on the Mishnah, it is M and T Rosh Hashanah 1. One can easily see, he
continued, that the Tosefta quotes the Mishnah and then explains it, section after section.
Q.E.D. Upon examining the materials carefully, I arrived at the opposite conclusion.
17
Parentheses indicate that the "vav" appears in some MSS but not others.
6 Chapter I: Rethinking the Relationship between the Mishnah and the Tosefta

-ism D ^ n n ) -iaiuw i n a 'HD I^D1? r m i y a ' r o n ' i a ho n w n w s - n ( i )

. . . nn1? i n 1
. • ' a n h>y T a i n i r o i

K piD XnDDin
x nr^n
•to 'ix tin n ^ p w n m i r i ^ i D'cnn 1 ? no^a 1 ? r u c n ti>xn i t n
" D O W 7!T3
3 nshn
. . . ."crhri 1 ?"
i n3h>n
. . . ."¡runn 1 ?" i s o
7 n3h>n
"a^pw n a n n y i x o
n n3"?n
. . . ."•'nn 1 3 ^ " 7 s o
i nsVn
• n w m 7nxn 'aix •pyattf ' n nry"? 'n n a n 3 -wya 1 ? mi^n ran hn^ia 7nx3
. . . ."ty in ' I 'ax
T HDb'n
cp-m 1 ?! n r w y a V i nip-rVi n y o ^ mhor 1 ?! r o a ^ i mwn iran niffn
"m^nv 1 ?! r o a ^ 1 ? D ^ V ' i s o
n n3"7n
?"nylB3,7" 7SO
3 o n a n 7nxi i , _ i 3 a n 7nxi ytmn i n x
,
. ' s m y3T nxi n ^ i v nhny nx anwn i m n m n i v •p-nox it n y m niTDi
0 n3h>n
?"mpi , 1 7" 7SO
wat£>n xnwa u p ^ i u r n wawn xn xhw i v ruwn E>xn m s n p-p op11?
H^1 nn c n n nra? n s a ht h>y nra Tnawai f a u n y x
t^a^n xnwa op11?! -irm ti>ai£>n X3 xhw TO tnm imnmn3iy3 n m x op11?
. . . . l i r nn unn n r o n s a nt Vy nra i n w y a yxi f a n n y x
1
n3h>n
, 1
. . . ." -m 7" 7 x o
X1 nsbn
1 1 1
w r m iypn 'ixi 'in D3 ? i r r n s v n 'iw i n a u mo ? rnms? tf?iy X3 "73 mtz>n w k - q
' m sin l?xni','l7 pn o 'ixi 'in
3-1 n3^n
- p n n n w H3 t h w pno intff noD3 t h i j w i a i y X3n m m m a x x:rpy 'n 'ax . . .
nxi3n as1?
,l 18
f r x j i i t d i ?y iznnrrw n s f r x pno xmw m s y 3 n m 3 3 nron X3n

18
The phrase "wheat first fruits" (hittim bikkurim) may seem awkward but it is based on
Exodus 34:22, bikkurei qezir hittim.
 A. Two Illustrative Sets of Texts 7

D W J ^ T 1 ™ i r r a r r w HD N ^ n ITD^ ¡ o n
n n s u r n HIITDT n r s 1 ? » n s 1 ? n a x
r nr^n
-I 1 «» 'n n m s D n o r n n n m i n m i n3tr?n w i r o r n 1
] ^n
n a n n n m irixi i n x ho i n m i n ^ n WN-Q T ^ I T J hon 19
'mt< r r n r r ' i
DTO n n m m s bw i n m i n ' a n bv i n n f r ^ n n r v s b v r r a y n n x i n n n bv nosri
nniDDn
. n n p n 1 ? i n p s n i 'miv ur hon i n n m x ' a i x n o v ' i

M R o s h Hashanah (RH) 1:1

There are four new years:
On 1 Nisan the new year for kings and festival,
On 1 Elul the new year for tithing cattle; R. Eleazar and R. Simeon say on 1 Tishri,
On 1 Tishri the new year for [reckoning] years and sabbaticals and jubilees, for
planting [trees] and for vegetables.
On 1 Shebat the new year for trees, according to Bet Shammai; Bet Hillel says, on 15
[Shebat],
M 1:2
At four seasons the world is judged:
At Pesah for grain,
At Azeret for fruit of the tree,
At Rosh Hashanah all who have entered the world pass before him like troops, 20 as it
says. . .

And at Hag for rain.

T Rosh Hashanah 1:1

Nisan is the new year for kings and festival, for months, and for the offering of
shekels, and some say, even for the rent of houses.
How so "for kings"? . . .
T 1:2
How so "for festival"? . . .
T 1:3
How so "for months"? . . .
T 1:4
How so "for the offering of shekels"? . . . [=T Sheqalim 2:7]
T 1:5
How so "for the rent of houses"? . . .
T 1:6
On 1 Elul, the new year for tithing cattle; R. Eleazar and R. Simeon say on 1 Tishri.
Said R. Simeon b. A z z a i . . . . [=T Bekhorot 7:9]
T 1:7
Tishri is the new year for [reckoning] years, and sabbaticals, and jubilees, for planting
19
Some MSS (Erfurt, London) say that R. Judah said this in the name of R. Akiba. See
below.
20
Kaufman MS reads i n a i j a ; , meaning troops. See Lieberman, Tosefta Ki-fshutah, Moed
(New York, 1955-1988), 1022; Albeck, Shishah Sidrei Mishnah (Jerusalem, 1955-1958),
Moed, 486.
8 Chapter I: Rethinking the Relationship between the Mishnah and the Tosefta

(trees), and for vegetables, and for tithes, and for vows.
How so "for y e a r s , . . . " ?
T 1:8
How so "for planting [trees]"? 21
All the same are the ones who plant a tree, plant a shoot, and graft a branch. . . .
And the fruit of such a sapling are forbidden until 15 Shebat; if orlah, orlah;22 if fourth
year planting, fourth year planting. [=T Shevi'it 2:3]
T 1:9
How so "for vegetables"?
If one picked a vegetable on the eve of Rosh Hashanah before sunset. . . and went and
picked another one after sunset,
They do not take heave-offering or give tithes from this [gathered before sunset] for
that [gathered afterward]. . . .
If one picked a citron on the eve of 75 Shebat before sunset and went and picked
another after sunset,
They do not take heave-offering or give tithes from this [gathered before sunset] for
that [gathered afterward]. . . . [=T Terumot 2:6]
T 1:10
How so "for vows"? . . .
T 1:11
On Rosh Hashanah all who have entered the world pass before him like troops, as it
says... .
T 1:12
. . . Said R. Akiba: the Torah says, bring a measure of barley on Pesah, the barley
season, so that you are blessed with grain,
Bring wheat [and] first fruits on Azeret, the fruit season, so that you are blessed with
fruit,
Bring a water libation on Hag so that you are blessed with rainwater, 23
Say before him malkhiyot [verses], zikhronot [verses], and shofarot [verses]. . . .
T 1:13
All are judged on Rosh Hashanah and the decree is sealed on the Day of Atonement
(Yom Kippur), the opinion of R. Meir.
R. Judah says, all are judged on Rosh Hashanah but each decree is sealed in its own
time;
On Pesah for grain, on Azeret for fruit of the tree, and on Hag for water. And the
decree of humans is sealed on Yom Kippur.
R. Yoseh says: humans are judged every single day, as it says. . . .

21
The word neti'ah suggests a young tree, as opposed to zeqenah, an old tree. See M
Shevi'it 1:8 and T Shevi'it 1:3 for definitions of neti'ah.
22
If the fruit came out after Rosh Hashanah but before 15 Shebat, it is forbidden; if after
15 Shebat, it is permitted.
23
R. Akiba holds that the water libation on Day Eight of Hag is mandated by Torah. See
the discussion in Lieberman, Tosefta Ki-fshutah, Sukkah, 885. The parallel passage in Sifre
Bemidbar, 150 (ed. Horovitz, 196) suggests that just as the Torah mandates bringing an omer
of barley on Pesah for a good crop of grain, and bikkurim on Azeret for a good yield of fruit,
so too the Torah mandates water libation on Hag for sufficient rain. The origin of the water
libation was a matter of dispute between Sages and Boethusians. See M Sukkah 4:9; T
Sukkah 3:16. See chapter 5F.
 A. Two Illustrative Sets of Texts 9

The Mishnah notes that there are four new years — 1 Nisan, 1 Elul, 1 Tishri,
and 1/15 Shebat — and lists the features of each. Some are easy to grasp, such
as that Nisan is the new year for festival, meaning that when listing the three
pilgrimage festivals, one begins with Pesah. Others are not so easy to grasp,
such as that 1 Tishri is a new year for vegetables. Since this mishnah is short
and pithy, a reader 24 might expect that the Tosefta will walk through it, item
by item. The reader will not be disappointed. Minimally he or she needs to
understand why there are two new years for trees, 1 Tishri and 1/15 Shebat.
The following analysis will show that the fourth new year, 1/15 Shebat, is a
later addition of the redactor of Mishnah.
Like the Mishnah, the Tosefta opens with Nisan being a new year for kings
and for festival. It then adds three more features of 1 Nisan: a new year for
months, for the offering of shekels and, according to some, for renting homes
(1:1). 25 The Tosefta then asks, for each of these features, "How so X?" and
provides answers (1:1-5). The next paragraph (T 1:6) goes on to say, like the
Mishnah, that the first of Elul is a new year for tithing of animals and that
several tannaim debate the date. The paragraph continues with commentary
by R. Simeon b. Azzai. The paragraph after that (T 1:7) says, again like the
Mishnah, that 1 Tishri is a new year for years, sabbaticals, and jubilees, for
planting [trees], and for vegetables. It adds for tithing, 26 and for vows (1:7).
As it did for 1 Tishri, the Tosefta asks what each of these features means and
provides answers (1:7-10). The Tosefta does not provide a separate paragraph
for tithes, however, but includes them in its discussion of vegetables. 27 The
next paragraph talks about Rosh Hashanah as a day on which human beings
pass before God like troops (1:11). Two more paragraphs elaborate this idea
(1:12, 13). The Tosefta then focuses on a new subject altogether, sending out
messengers to announce the new month, which is parallel to M Rosh
Hashanah 1:3.
A comparison of the Mishnah and the Tosefta yields striking results. For
the Mishnah's first three new years the Tosefta serves as teacher and guide. It
defines, or comments on, every one of the Mishnah's phrases. But it then
remains silent with regard to 1/15 Shebat! Unlike the Mishnah, which knows

24
Whenever I use the term "reader," I am referring to one who hears as well. I will use the
terms document, rewrite, and reader, throughout the book for ease of reference. I am talking
about a collection (not necessarily a written document), reformulating or reshaping as
activities of the redactor (not necessarily rewriting), and an audience of listeners (not
necessarily readers).
25
In Mekhilta of R. Ishmael, Bo 1 (ed. Horovitz-Rabin, 7), R. Natan and R. Yizhaq, late
tannaim, add "for rental of homes" to the list of features of 1 Nisan. The material in the
Mekhilta seems to know some parts of M RH 1:1 but not others.
26
Tithing refers to both fruits and vegetables.
27
See previous note. See Lieberman, Tosefta Ki-fshutah, Rosh Hashanah, 1020, who says
that the Tosefta combines tithing vegetables and fruits in one paragraph, using the simple
examples of a vegetable and a citron.
10 Chapter 1: Rethinking the Relationship between the Mishnah and the Tosefta

of four new years, the Tosefta seems to know of only three. The Mishnah's
fourth new year, 1/15 Shebat, does not merit mention in the Tosefta. The
Tosefta does not call it a new year (rosh hashanah), as it does the other three,
nor does it comment on the Houses' debate about its date. This omission is
extremely hard to understand. Since the Tosefta was meticulous in reviewing
every other new year along with its features, as presented in the Mishnah, and
even added a few features of its own, why does it fail to mention 1/15 Shebat,
a new year dating back to the Houses (at least)? What deepens the mystery is
that 15 Shebat does appear in this Tosefta material but is not called a new
year: it is merely a subcategory of the new year of 1 Tishri. The fifteenth of
Shebat, according to the Tosefta, marks the beginning of the fiscal year for
tithing fruit (1:8, 9).28 The Tosefta is thus not ignorant of the significance of
15 Shebat29 but thinks of it in different terms from the Mishnah. It seems un-
likely that the Tosefta is a commentary on or a response to the Mishnah. The
question thus remains, what is the nature of their relationship, close as it is?
A review of the Tosefta's paragraphs might yield some answers. It is easy
to see that T Rosh Hashanah 1:1-10 is self-contained, in the sense that it is
not dependent on any outside source. It presents three new years, lists the
special features of each, and then proceeds to explain them, item by item.30 As
for 15 Shebat, the Tosefta recognizes that it begins a new fiscal year for
tithing fruit but does not regard this date as an independent new year, only as
one aspect of 1 Tishri. Nor does the Tosefta acknowledge, in these para-
graphs, that this date is disputed by the Houses. However, the Tosefta does
refer elsewhere to their dispute (T Shevi'it 4:21).31 But all that can be
deduced from that latter text is that the Houses disagreed on the date for
tithing fruit. The paragraph does not suggest that they called 1/15 Shebat a
new year for fruit of the tree.
The redactor of Mishnah seems to have known these ten Tosefta para-
graphs and gleaned ideas from them for inclusion in his much shorter collec-
tion.32 He presents only the statements of the new years (T 1:1a, 1:6a, 1:7a)
but not the elaborations, the "How so's." He also makes a number of changes.

28
See Y. Gilat's discussion of tithing fruit in Peraqim Behishtalshelut Hahalakah (Ramat
Gan, 1992), 243-248.
29
The likely reason that the Tosefta makes no mention of 1 Shebat in this context is that it
rules like Bet Hillel.
30
For an alternative explanation, see n. 32.
31
"It once happened that R. Akiba picked a citron on 1 Shebat and handled it according to
the opinion of Bet Shammai and according to the opinion of Bet Hillel." This means that he
separated both second tithe, as if the citron were a fruit of the second or fifth year, and also
poor man's tithe, as if the fruit were of the third or sixth year.
32
One might also say that the Tosefta explains a statement from an early Mishnah
collection, phrase by phrase. I will later suggest that the Tosefta was commenting on an early
or ur-Mishnah, which probably discussed, at this juncture, only the three new years that the
Tosefta discusses in detail.
 A. Two Illustrative Sets of Texts 11

First, he omits a few of the special features of 1 Nisan (new year for
months, for offering shekels, for renting homes) and 1 Tishri (new year for
tithing, for vows). He probably left out "for tithing" for reasons to be dis-
cussed below. Or possibly, for brevity, he left out the features he thought less
important.
Second, he adds a fourth new year for clarity and ease of memory. The
fifteenth of Shebat plays a role in fruit production. 33 It is as much a line of
demarcation for fruit as 1 Tishri is for planting trees and tithing vegetables.
Rather than leave it as a feature of 1 Tishri, as in the Tosefta, the redactor of
Mishnah elevates 15 Shebat to the status of a full-fledged new year. He does
not thereby make any halakic change whatsoever. At the same time, he
mentions that there is a dispute between the Houses regarding this day, and
records both views. This dispute may have existed somewhere else in his
Tosefta collection. Or he may have composed it, basing himself on T Rosh
Hashanah 1:8, 9, both of which mention 15 Shebat, and T Shevi'it 4:21,
which mentions 1 Shebat and both Houses. Ironically, although this passage,
with its reference to the Houses, looks like the oldest part of the Mishnah, it
seems nevertheless to be the newest, an addition of the redactor.34
Third, having added a fourth new year, he appends an opening statement to
his mishnah, announcing that there are exactly four new years, and follows it
with a similar statement at the beginning of the the next mishnah, "at four sea-
sons the world is judged." Both of these numeric overviews are editorial addi-
tions, partly for mnemonic purposes. Neither appears in the Tosefta. In short,
the redactor of Mishnah revises the Tosefta's list of three new years, thereby
clarifying and even upgrading the status of 15 Shebat, a date that had already
entered the literature as the beginning of the new fiscal year for fruit but was
not (yet) called a new year.35 He omits reference to 1 Tishri as a new year for
tithing fruit because that function had been taken over by 1/15 Shebat.36

33
That the fourth new year seems to be a second new year for trees results from the fact
that it is a later addition. Had the redactor of Mishnah called it a new year for fruit of the tree,
an expression he uses in the next mishnah (M RH 2:1), all would have been clear. He may
have chosen to call it a new year for trees, and not a new year for fruit of the trees, because
nearly all the features of the new years in M RH 1:1 are described in one word only. The lone
exception is ma 'aser behemah, a term apparently lifted from M Sheqalim 3:1 (partly identical
to M Bekhorot 9:5), where various tannaim debate the date of the beginning of the fiscal year
for ma 'aser behemah.
34
In a somewhat similar vein, Epstein, Mevo 'ot, 364, says that M RH is made up of many
different sources but was "sealed" (nistemah) by Rabbi. In a sense, M RH 1:2 helps explain
M 1:1. It shows that 'ilan means a mature tree as opposed to a neti 'ah, a sapling.
35
It is somewhat ironic that today Jews plant trees on 15 Shebat and call it a "new year
for trees" when, in reality, 1 Tishri is the new year for planting trees. Of course, Jews also eat
fruit from Israel on 15 Shebat.
36
Should one argue, a la A. Goldberg, "Seder Hahalakhot Utekhunot Hatosefta,"
Mehqerei Talmud 2 (Jerusalem, 1993), 188, that it is the Tosefta that has thoroughly rewritten
12 Chapter 1: Rethinking the Relationship between the Mishnah and the Tosefta

This account of the evolution of M Rosh Hashanah 1:1, which makes the
assumption that the redactor of Mishnah could modify his source materials,
presents almost no difficulties. It is now clear why the Tosefta omits mention
of the Mishnah's fourth new year and why it includes reference to 15 Shebat
under 1 Tishri. M Rosh Hashanah 1:1 appears to be a response to T 1:1-10.
The redactor of Mishnah attempts to present the Tosefta's points clearly and
succinctly and to put them in a form that is easy to remember.37
But there is more. M Rosh Hashanah 1:2 says that the world is judged at
four different times during the year: on Pesah for grain, on Azeret for fruit of
the tree, on Rosh Hashanah for length of life, and on Hag for water. A proof-
text is brought for Rosh Hashanah as a day of judgment.
The Tosefta contains three paragraphs on the subject of judgment. T Rosh
Hashanah 1:11 says about Rosh Hashanah exactly what the Mishnah says
about it, that on this day people pass before God like troops. It gives the same
prooftext. 38 T Rosh Hashanah 1:12 presents a statement by R. Akiba on how
to guarantee abundance: one brings an omer of barley on Pesah, which is the
season (pereq) of barley; bikkurim on Azeret, which is the season of fruit;
water libation on Hag, the beginning of the rainy season. The tanna concludes
with a plea to recite the three parts of the Rosh Hashanah musaf prayer, the
malkhiyot, zikhronot, and shofarot verses, apparently to guarantee long life. T
Rosh Hashanah 1:13 presents the views of R. Meir, R. Judah, and R. Yoseh
on the topic of Rosh Hashanah as a day of judgment and Yom Kippur as a day
of sealing the decree. The first two tannaim both understand Rosh Hashanah
as a day of judgment but differ on the details as to when the decree is sealed.
R. Yoseh disagrees with them both, saying that a person is judged every
single day of the year. One's decree is never sealed; another day, another
chance.
If T 1:11-13 is viewed as a commentary on M 1:2, and they surely share
many phrases, problems again arise. Not one of the three views of judgment

the Mishnah in order to make the Mishnah easier to understand, I would respond that when
having to choose between Mishnah rewriting Tosefta and Tosefta rewriting Mishnah, I favor
the former. It is precisely because the Tosefta cannot be understood independently of the
Mishnah - it appears to be a commentary on it yet does not consistently behave like one -
that I am suggesting a different model. See Fraade below, n. 60, who describes ancient
commentaries.
37
A counterpossibility: since the Tosefta mentioned 15 Shebat in connection with 1
Tishri, there is no reason for the Tosefta to mention it again, as an independent new year. As
Lieberman often says, unless the Tosefta has something to add, it does not quote the Mishnah.
My response is: since T 1:8 and T 1:9 appear here and also elsewhere in the Tosefta, the
Tosefta is not averse to repetition. Therefore, the redactor of Tosefta could have cited T
Shevi'it 4:21 here to show how the Houses' debate was received by R. Akiba. Or, the Tosefta
could have just explained that the new year for trees is not for trees but for fruit.
38
Lieberman, Tosefta Ki-fshutah, Rosh Hashanah, 1023, says that the second and third
verses address a different topic.
 A. Two Illustrative Sets of Texts 13

corresponds to that of the Mishnah! R. Meir says that for grain, fruit, length of
life, and rain, one is judged by God on Rosh Hashanah with the decree sealed
or decided on Yom Kippur. This is not like the Mishnah's view. R. Judah
spreads out sealing the decree over the entire year, with human fate decided
on Yom Kippur. 39 This is more like the Mishnah, except that the Mishnah
does not acknowledge Yom Kippur as a day of sealing human fate. 40 R.
Yoseh's view of judgment each day is also at odds with the Mishnah. It does
not therefore seem likely that these views are a later response to the Mishnah.
The redactor of Mishnah knows these Tosefta materials and condenses them
into one paragraph. 41 He takes the notion of judgment on different days for
different purposes from R. Akiba (T 1:12) and R. Judah (T 1:13), saying, "at
four different seasons [peraqim, a term he lifts from R. Akiba] the world is
judged." 42 He then lists the time periods, or holidays, in chronological order,
splicing Rosh Hashanah, along with its accompanying prooftext, taken from T
1:11, into the festival triad. He makes no mention of Yom Kippur, even
though his view is based on R. Judah who says that human fate is sealed on
that day. For the redactor of Mishnah, in this mishnah, there is only judgment,
no later sealing of the decree. 43 In short, he opens his paragraph with the
statement "at four seasons" to link it to the first Mishnah, which also opens
with a numeric mnemonic, also based on four. 44 He then presents his own
view about judgment, which is in agreement with none of them, although
containing elements plucked from the various tannaim.
This is not to suggest that these three paragraphs prove that the Tosefta
preceded the Mishnah; however, it is clear that the views of R. Meir, R.
Judah, and R. Yoseh are older than the one in the Mishnah. It appears that the

39
Note that R. Judah, and also R. Akiba in the previous Tosefta paragraph, group the
three pilgrimage festivals together and mention Rosh Hashanah or Yom Kippur afterwards.
The Mishnah interpolates Rosh Hashanah into the midst of the three festivals.
40
See PT RH 1:1; 57a. It identifies a four-way dispute and says that the Mishnah is like R.
Judah's view. See also BT RH 16a, which similarly debates which view the Mishnah
espouses. Epstein, Mevo'ot, 366, says that M RH 1:2 is, in essence (be'iqarah), like the view
of R. Judah. He directs the reader to the Tosefta. The common underlying assumption of the
two Talmuds is that the Mishnah is likely to agree with one of the tannaitic disputants. See
also Tosefta Ki-fshutah, Rosh Hashanah, 1025.
41
Some would say, in response, that the dispute is early but did not enter the Tosefta until
much later. In the meantime, it "circulated independently." See my comments on this matter,
n. 2.
42
That is all the redactor of Mishnah takes from T 1:12. R. Akiba's suggestion of bringing
offerings on each holiday to propitiate God to bless the people with that item does not appear
in the Mishnah.
43
And there are no Ten Days of Repentance, as they are now called. Even in M Yoma 8,
the redactor of Mishnah sees Yom Kippur as a day of atoning for sins, against God and
humankind, not as a day of sealing of the decree.
44
Perhaps the redactor of Mishnah turned 1/15 Shebat into a new year to have a total of
four new years and thus match the four seasons of M RH 1:2.
14 Chapter 1: Rethinking the Relationship between the Mishnah and the Tosefta

redactor of Mishnah knows these three views and creates his own fourth view
on the basis of these three and on the basis of T 1:11 and T 1:12. Thus, the
question arises, in what manner did he have access to these three paragraphs
and also the previous ten? As freely floating bits of tradition? As part of a
cluster? As part of a collection? The third option seems the best. It is more
reasonable to conclude that the redactor of M Rosh Hashanah knew all
thirteen paragraphs as a cluster or chapter than to say that he knew them as
separate, individual traditions. 45
If, by extension, the Tosefta can be regarded as the basis of the Mishnah,
the Mishnah and its redaction can be understood in a new way. 46 If the
redactor of Mishnah modified his sources, an editorial activity that was com-
mon in the ancient world, 47 then we will be able to get into his mind in ways
that were not possible before. We may be able to grasp some of his predi-
lections and practices. We may be able to trace the evolution of ideas. As a
result, we may be able to arrive at more precise and nuanced interpretations of
the Mishnah, at mishnah kifshutah.

B. Theories of the Tosefita's Origins

R. Sherira Gaon of 1 Oc. Babylonia is the first to theorize about the origins of
the Tosefta. The Jews of Kairouan called upon him to lay out the history of
rabbinic texts. In answering their query about the nature of the Tosefta -
which they clearly possessed - he said that after Rabbi composed the

45
The reader might wonder, at this point, why I do not consider other possibilities, not
just the obvious two, that either the Mishnah comments on the Tosefta or the Tosefta on the
Mishnah. It is possible, for instance, that they both drew from a third text. It is also possible
that some materials circulated as complete chapters or even clusters of chapters but did not
enter into the Tosefta until after the Mishnah was "published." I limit myself to these two
possibilities because the two texts in front of me suggest that they are dependent on each
other, the Tosefta on the Mishnah more so than the Mishnah on the Tosefta, and I am trying
to unravel the dependency in order to understand these texts better. The other models remain
theoretical constructs that I comment on from time to time.
46
I am operating under the assumption that there is such a thing as authorial intent, that
some readings are stronger or better than others. A popular counterview is: "The real author
of the narrative is not only he who tells it, but also, and at times even more, he who hears it"
(H. W. Smith, The Butcher's Tale [New York and London 2002]). For law, I do not subscribe
to the theory that the one who hears it interprets it as he or she sees fit, without regard to
authorial intent, i.e., that the hearer, too, is an author of the narrative. Although the one who
hears may consciously reinterpret or change the law, as handed down to him or her, that is not
the same as being the author of the narrative.
47
In discussing Luke as an "able stylist," M. Hengel, Between Jesus and Paul (London,
1983), 4, writes :"The ancient historian took pride in so reshaping his sources that his model
could no longer be recognized, and the mark of his own individual style emerged all the more
clearly."
 B. Theories of the Tosefta 's Origins 15

Mishnah, R. Hiyya, a younger colleague, came and explained its dense

principles and rules. His commentaries, says R. Sherira Gaon, constitute the
Tosefta. 48
R. Sherira Gaon's theory remained unchallenged for over ten centuries.
Most medieval commentators on the Talmud subscribed to it. Many scholars
of the last 125 years accept it in principle but modify it in a variety of ways. 49
To review a few recent opinions: Y. N. Epstein (d. 1952), and Z. Frankel (d.
1875) before him, say that the Tosefta is based on an earlier Tosefta of R.
Nehemiah, which itself was a commentary on an early Mishnah collection of
R. Akiba. 50 H. Albeck (d. 1972) says that the Tosefta was edited in the late
amoraic period, at a much later time than the Mishnah.51 Since amoraim, he
observes, frequently seem unaware of Tosefta paragraphs, it follows that the

48
Iggeret Rav Sherira Gaon (ed. Aharon Hyman, Jerusalem, 1967), 38.
49
See Houtman, Mishnah and Tosefta, 8-18. Some early 'scientific' scholars she
mentions are: J. H. Dunner (1874) and I. H. Weiss (1904), who both say that the Tosefta
reached final form after the conclusion of the Talmuds; M. Zuckermandel (1874), who says
that the Tosefta is what remained after the Babylonian Mishnah was subtracted from the more
original and much larger Palestinian Mishnah; A. Spanier (1921), who concluded that the
Tosefta is composed of notes that were written in the margins of the Mishnah. Zuckermandel
is best known not for his theories about the origin or essence of the Tosefta, but for the
edition of the Tosefta that he published, based on the Erfurt MS. Lieberman's edition of the
Tosefta, based on the Vienna MS, with extensive critical apparatuses and explanations, has
replaced, to a great extent, the first three orders of Zuckermandel's volume and part of the
fourth. C. Tchernowitz, Kol Kitvei Rav Za'ir, Massekhet Zikhronot (New York, 1945), 221-
222, writes that Zuckermandel was a difficult person, always arguing with the German
scholars of die Wissenschaft des Judentums (ba 'alei mada' hayahadut), in particular with A.
Schwarz, whose views about the Tosefta were very different from his own. I thank A. Holtz
for bringing this text to my attention.
50
Epstein, Mevo 'ot, 242. He says that the Tosefta is, in essence, the completion of the
Mishnah (ruwon no^ETi). The Tosefta collects old material, copies disputes, and brings the
Mishnah of another tanna. Epstein cites Samuel ha-Nagid who claims that the Tosefta is the
"remainder of the Mishnah" (rowan TTW), apparently meaning the materials that were left
after the Mishnah was extracted from the tannaitic mass. The Tosefta contains remains of the
Mishnah collections of R. Yosi and R. Judah and others. People would study the Tosefta that
explained and added (ns'Dioni nETBBii) to the Mishnah, and would blend the Tosefta into the
Mishnah, without indicating that they were doing so. See Houtman, Mishnah and Tosefta,
11-12. See Friedman, Tosefta Atiqta (Ramat Gan, 2002), 17-32, for more observations about
Epstein's theories.
51
Mehqarim, 150, 184. Albeck says that the materials in the Tosefta are old, that they
come from sources equal to the sources of the Mishnah, and that baraitot with the names of
early tannaim are old and equal in value to the Mishnah. The Tosefta is a collection of
collections, he says. The Tosefta includes: 1) new laws, not in the Mishnah; 2) old
anonymous baraitot; 3) supplements to the Mishnah, some from early tannaim but most from
late tannaim who had their own baraita collections; 4) rules of the Mishnah, some old, in a
different formulation, sometimes even disagreeing with our Mishnah. See, for instance, M
Berakhot 6:1 and T 4:4, which present two versions of R. Judah's blessing for vegetables.
Albeck's resolution is that two tannaim each reported R. Judah's statement differently.
16 Chapter 1: Rethinking the Relationship between the Mishnah and the Tosefta

Tosefta had not yet come into existence. 52 S. Lieberman, the great Tosefta
interpreter of our own day (d. 1983), also understands the Tosefta as a com-
mentary on the Mishnah. Although he never lays out his theory of the rela-
tionship between these two works, his understanding can be deduced from his
extensive commentaries. 53 He says, time and again, that the Tosefta only
quotes the Mishnah when it has something to add to it. 54 A. Goldberg holds
that the Tosefta is the continuation and completion of the Mishnah. 55 He
suggests that the Tosefta, and also the Mishnah, came together layer by layer,
generation by generation. 56 At each stage the Tosefta commented on the
corresponding layer of the Mishnah. J. Neusner, whose systematic, compara-
tive study of the entire Mishnah and Tosefta examines in detail the relation-
ship of the two works, writes that the Tosefta rests upon the Mishnah, that it is
the Mishnah's first commentary, first amplification, and first extension. 57
These theories may differ from each other in substantial ways, but they share
a core assumption: that the Mishnah is earlier and the Tosefta later. 58

52
See also Y. Elman, Toseftan Baraitot in Talmudic Babylonia (New Jersey, 1994), 280,
who argues that the amoraim of the Bavli did not know the Tosefta as we have it. He
suggests, instead, that Toseftan baraitot circulated as singletons or in clusters but not as a
large-scale collection. I disagree. Throughout this book I will argue for the Mishnah as a
"rewriting" of the Tosefta, paragraph by paragraph and chapter by chapter. The accumulated
evidence points to an early Tosefta collection. It is possible that the Tosefta of the amoraim
was different from the Tosefta we have today but it does not follow that the amoraim did not
have a Tosefta.
53
See Friedman, Tosefta Atiqta, 32^41, for a discussion of this matter.
54
He writes, in Tashlum Tosefta, 21: "It is the practice of the Tosefta, in a thousand
places, to cite a little from the Mishnah for reference" [zikhron devarim]. See also Tosefta Ki-
fshutah, Berakhot, 6.
55
"The Tosefta - Companion to the Mishnah," in The Literature of the Sages, 283.
56
See The Literature of the Sages, 285-289, for a detailed theory of the layers of Mishnah
and Tosefta.
57
The Tosefta, Its Structure and Its Sources, ix. Neusner further points out that the
Tosefta has an order of presentation of materials that it follows nearly all of the time: first
materials that comment directly on the Mishnah, then materials that amplify the Mishnah, and
finally independent and autonomous sayings. See also A History of the Mishnaic Law of
Purities (Leiden, 1974—1977), vols. 1-22, Neusner's systematic study of M and T Tohorot.
See vol. 6 for summaries and conclusions regarding M and T Kelim.
58
For other views, see Houtman, Mishnah and Tosefta, 8-18. Two recent writers are
somewhat circumspect. Friedman, "The Primacy of Tosefta to Mishnah in Synoptic
Parallels," Introducing Tosefta (New Jersey, 1999), 101, says that when there are parallel
materials in the Tosefta and the Mishnah, the Tosefta can often be shown to be the basis of
the Mishnah. Otherwise, the Tosefta is a supplement to the Mishnah. In general, he claims,
the Tosefta is subsequent to the Mishnah in time. The problem with Friedman's limited
theory of the Tosefta's primacy is that he does not explain how the old materials in the
Tosefta, those that predate the Mishnah, were transmitted from generation to generation if
they were not part of a collection. I remain skeptical, as noted above, about many bits and
pieces circulating independently. If all that keeps Friedman from assuming an early Tosefta is
 C. New Model 17

C. New Model

This theory of the Tosefta responding to the Mishnah seems to fit the texts
perfectly. Time and again the Tosefta quotes a phrase from the Mishnah and
explains it. How could the Tosefta, therefore, be anything other than a com-
mentary on the Mishnah? But this model is problematic. First, the Tosefta's
comments on the Mishnah often appear in a different order from the
Mishnah.59 Would a commentary - and midrash halakah and fragmentary
targums are good models to keep in mind 60 - abandon and even radically alter
the order of paragraphs of the source document? I don't think so. That would
hinder rather than help the one who consults it. Second, the Tosefta often
presents a topic that appeared in the Mishnah in a totally different manner, so
different that one could not possibly consider it a response to the Mishnah but
an independent statement on the same subject. Third, the Tosefta has nothing

the presence in the Tosefta of a layer of late commentary, by T5 tannaim, there are other
possible explanations of that phenomenon. See below. Houtman, Mishnah and Tosefta, 223,
upon conducting a detailed comparison of M and T Berakhot and M and T Shevi'it,
concludes that both relationships are present in these works. At times, the Tosefta is the basis
of the Mishnah. At others, the Tosefta is a commentary on the Mishnah. I agree. My
qualification is that when the Tosefta comments on a mishnah, that mishnah is likely to be an
import into our Mishnah from the ur-Mishnah. See below.
59
Albeck notes the frequent "dis-order." So does Epstein. See nn. 84, 85. Goldberg,
Mehqerei Talmud, 188, theorizes that the order of the Tosefta, in the eyes of its redactor, is
superior to the order of the Mishnah. In other words, the redactor of Tosefta changed the
order of the paragraphs to accord with what he thought was the most pedagogically sound
way of presenting the material.
60
S. Fraade holds that the targums are interspersed with the biblical text and could not be
read independently of it. The targum followed the text, commenting at will. He writes
(electronic communication, 1 December 2004): "From what we know, the rabbinic Aramaic
targumim were both recited orally and recorded textually (judging from our earliest
manuscripts in the Cairo Geniza) interlinearly, that is, a verse of Hebrew followed by a verse
of targum. . . . Often the targum manuscripts only indicate the opening word or words of the
Hebrew verse, but this still suggests that the targum was not read or studied independently of
the Hebrew miqra. . . . Unfortunately, most modern English translations of the targumim
render them as if they were continuous Aramaic texts . . . but this is a misleading
representation, for they give the impression thereby that the Aramaic translation stood on its
own, which appears not to have been the case in practice. I have argued that there are
instances in which the targum once presented as a continuous text (that is, independently of
its Hebrew original) makes no sense. Thus, although targum does not explicitly employ
commentary terminology, structurally it could be included under that rubric." Applying these
findings to the Mishnah and the Tosefta, I would say that the Mishnah could be read without
the Tosefta but the Tosefta could not be read without the Mishnah. The Tosefta, I will argue
below, commented on an ur-Mishnah or early Mishnah, if not phrase by phrase then on
selected phrases that the Tosefta decided needed elucidation. The closest the Tosefta comes to
being interspersed in the Mishnah is when the Talmuds splice the Tosefta into the Mishnah,
arranging Tosefta passages next to the mishnah upon which they comment.
18 Chapter I: Rethinking the Relationship between the Mishnah and the Tosefta

to say about many paragraphs of the Mishnah that cry out for explanation. If
the Tosefta were composed in response to the Mishnah, it stands to reason
that it would explain Mishnah passages that do not make sense on their own.
But the Tosefta often fails to do so.
The conventional theory, as apt as it is for many paragraphs of the Tosefta,
does not fit many others. These units have a message, a logic, and an order of
their own, totally independent of the Mishnah. Not only does the Tosefta not
comment on the Mishnah, but the opposite appears to be true. Strangely, the
Mishnah, in many cases, looks like a commentary on, or a rewriting of, the
Tosefta. The redactor of Mishnah, in assembling his collection, appears to
have taken blocks of the Tosefta and "rewritten," reconceptualized, and
reordered them, all for the purpose of having them accord with his own
outlook. To borrow a phrase from J. Kugel, the redactor of Mishnah wanted to
tell the story from his own perspective. 61 To do so, he felt free to modify the
materials he was working with, within certain constraints. 62
This is a radically different understanding of the nature of the Tosefta and
its relationship to the Mishnah. P. Schäfer suggested in 1986 that we rethink
the relationship of the Mishnah and the Tosefta, 63 but no one carried out the
research. I stumbled into doing exactly that. When I first reported on this new

61
See James Kugel, The God of Old (New York and London, 2003), 39, who says that
commentary in the form of rewriting - consider the Book of Jubilees relative to Genesis - is
the most common form of biblical commentary in the beginning of the second century B.C.E.,
the end of the period of the Hebrew Bible. The retellings (or retellers) revise the original text
so that it accords with the ideas and assumptions of the later writer.
62
J. Davis points out (written communication, 13 February 2004) that a later model of this
kind of editorial activity is Maimonides' reworking of his sources. Davis also notes that
Maimonides, in the introduction to his Mishneh Torah, says that the Mishnah contains little
aggadah. This supports my view (see below) that the redactor of Mishnah compressed and
even excised much of the Tosefta's aggadah.
63
"Research Into Rabbinic Literature; An Attempt to Define the Status Quaestionis," JJS
37 (1986), 139-152. Schafer raises broad questions and predicts broad answers. He puts
forward a theory of at least three Mishnahs and three Toseftas. His first Mishnah is one that
can only be 'reconstructed' from reference to it in the Tosefta; his second is the one that gave
rise to the Tosefta; and his third is the one that is a response to the Tosefta. His first Tosefta is
one that is related to an otherwise unknown Mishnah; his second is one that appeals to the
existing Mishnah; and his third is a Tosefta independent of any Mishnah. My theory of the
evolution of the Mishnah and the Tosefta may differ somewhat from Schafer's, but his
hypotheses, in large part, have been borne out by my research. In his response to C.
Milikowsky's critique ("The Status Quaestionis of Research into Rabbinic Literature," JJS 39
[1988], 201-211), Schafer notes, "Once Again the Status Quaestionis of Research in
Rabbinic Literature: An Answer to Chaim Minkowsky," JJS 40 (1989), 89-94, that "we can
only work with the evidence we possess, and this is exclusively the literary plane of the
texts." Because of this limitation, this study will focus on the texts themselves, trying to tease
out from them what they say about their own transmission and relationship to each other.
 C. New Model 19

understanding of the Tosefta in 1989 64 - not as a commentary on but as the

basis of the Mishnah65 - few were swayed. 66 But then an even better theory
sprang from the text. As I read more and more Tosefta passages, I realized
that there was no denying that the Tosefta, in great part, was a commentary on
another collection. But was that other collection our Mishnah? It surely
seemed to be. The very first line of T Berakhot, "from what time does one
recite the Shema in the evening," matches the Mishnah's opening statement
word for word, orthographic variations notwithstanding. Even so, exami-
nation of those places where the Tosefta says, "why did they say X," or "what
does X mean," and X was a quotation from the Mishnah, revealed again and
again that the Tosefta citation did not match the Mishnah exactly. 67 For
instance, where the Mishnah would call real estate "assets with backing," the
Tosefta would cite the Mishnah but say "land."68 Is it likely that the Tosefta
would alter its Mishnah citations before going on to explain them? No. The
Tosefta, in general, cites the Mishnah verbatim.
As the instances of discrepancy multiplied, I realized that the simplest and
most reasonable or plausible explanation of this phenomenon was that the
Tosefta was indeed a commentary on some other collection but that that col-

64
The paper was presented at the Tenth World Congress of Jewish Studies in Jerusalem.
It was published in the proceedings in 1990. See n. 66. This approach to Mishnah-Tosefta
studies has become standard. In particular, starting in 1993, S. Friedman adopted it. See
below.
65
My theory is different from "shiyyur hamishnah" (mishnah remainder) in that I do not
see the Tosefta as what remained after the redactor of Mishnah made his selection but as
source material which he reshaped as he saw fit.
66
A selection of my publications on this topic: "Pesiqah Lehumra Bemishnat Gittin,"
Proceedings of the Tenth World Congress of Jewish Studies, Division C, Jewish Thought and
Literature (Jerusalem, 1990), 23-30; "Women and Procreation," Tikkun, November/December
1991; "Women's Voluntary Performance of Commandments from Which They Are Exempt,"
Proceedings of the Eleventh World Congress of Jewish Studies, Jerusalem, 1994 [Hebrew],
161-168; "Women and Inheritance in Rabbinic Texts," in Introducing Tosefta, Harry Fox and
Tirzah Meacham, eds. (New Jersey, 1999), 221-240, first delivered as a lecture at a
conference on "Women in Religion and Society" at the Annenberg Center, University of
Pennsylvania, May 1990; "Mishnah as a Response to 'Tosefta,'" in The Synoptic Problem in
Rabbinic Literature (Providence, 2000), 13-34; "Nashim Bemassekhet Pesahim," in Atarah
Lehayyim, Mehqarim Besifrut Hatalmudit Veharabbanit Likhevod Prof H. Z. Dimitrovsky,
Daniel Boyarin et al, eds. (Jerusalem, 2000), 63-78; "Does the Tosefta Precede the
Mishnah?" Judaism 50 (2001): 224-240; "How Old is the Haggadah?" Judaism 51 (2002):
5-18. For other recent studies, see Friedman, Tosefta Atiqta, and bibliography.
67
Goldberg, Mehqerei Talmud, 152, says that one of the Tosefta's outstanding features is
citing the Mishnah in different words in order to explain it. I disagree. The Tosefta seems to
be citing an old text and then explaining it. Since the Tosefta cites our Mishnah verbatim in
so many places, it seems reasonable to say that when, in a small percentage of times, it cites a
text worded differently from our Mishnah, it does so because that is the text it knows.
68
M Kiddushin 1:5; T Kiddushin 1:5.
20 Chapter 1: Rethinking the Relationship between the Mishnah and the Tosefta

lection was not our Mishnah, as held by so many for so long, but an earlier
version, what I will call an "ur-Mishnah." 69 The Tosefta had before it, in oral
form presumably, an early, ordered Mishnah collection and commented on it
in a variety of ways, not only explaining its passages but probably supple-
menting them with related materials and aggadic excurses.
This realization, that the Tosefta was not a commentary on our Mishnah
but on an wr-Mishnah, made it possible for many pieces of the puzzle to fall
into place. If the Tosefta was, at its essence, a commentary on some other
collection, it was not surprising that the wording of the Tosefta's citations did
not tally with the corresponding passages of the Mishnah, or that the order of
passages in the Tosefta did not match the order of passages in the Mishnah, 70
or that the Tosefta's statements on a given subject differed radically from
those in the Mishnah, or that the Tosefta ignored large sections of the
Mishnah. Its comments were addressed to a different, early Mishnah collec-
tion, not to our Mishnah. This is, thus, a new solution to problems that had
troubled researchers for decades. It emerged from close readings of Mishnah
and Tosefta texts.71

69
Another explanation of these "odd" quotations is that in these instances the Tosefta
knew a different, but not necessarily older, version of our Mishnah. See below.
70
Z. Steinfeld, "Lesidran Shel Hahalakot Bemishnah Uvetosefta Horayot," Proceedings
of the Eighth World Congress of Jewish Studies, Division C (Jerusalem, 1982), 9-13, holds
otherwise. In examining a case in which the Tosefta does not follow the order of the Mishnah,
he concludes that the editor (mesadder) of the Tosefta deliberately orders the halakot to help
a student of the Mishnah understand it. At times, that goal necessitates presenting the halakot
of the Tosefta in an order that appears, on the surface, to deviate from the order of the
Mishnah, but is, in reality, teaching the fuller meaning of the Mishnah. Steinfeld is saying, in
other words, that the Tosefta intends to explain the Mishnah even when the paragraphs of the
Tosefta follow a different order from the Mishnah. H. Gamoran, "The Tosefta in the Light of
the Law Against Usury," Jewish Law Association Studies IX, London Conference Volume
(1996), 57-78, reaches a somewhat similar conclusion. He writes, based on his investigation
of Mishnah and Tosefta passages on usury, that the Tosefta consists of material which existed
at the time of the Mishnah but was not selected for inclusion in the Mishnah. The work itself,
he says, was not redacted until after the close of the Bavli. I do not deny that the Tosefta
comments on a document outside of itself. But it is ur-Mishnah, not our Mishnah.
71
N. Braverman, "Bein Leshon Hamishnah Lileshon Hatosefta" Proceedings of the Tenth
World Congress of Jewish Studies, Division C (Jerusalem, 1985), Section 4, vol. 1, 31-38,
reports on differences in style, syntax, and vocabulary between the Mishnah and the Tosefta.
He observes that, on occasion, Rabbi copies sources from the Tosefta, changing foreign
words to their Hebrew equivalent, that he strives for consistency of style, and that he
condenses long Tosefta paragraphs. The Tosefta, Braverman says, is a collection of sources
"as they were." As a result, the Tosefta has no linguistic consistency, contains some very long
paragraphs, and shows evidence of different dialects (lehagim shonim). Y. Elman, Toseftan
Baraitot, 281, holds that our linguistic tools are not yet refined enough to distinguish between
the language of the Mishnah and the Tosefta.
 C. New Model 21

If both the ur-Mishnah and the Tosefta are older than the Mishnah, what is
the nature of the relationship of the Mishnah and the ur-Mishnah? Since I
have no way of reconstructing the ur-Mishnah, except for here and there
where the Tosefta quotes snippets of it, I cannot answer the question. The
most I can do is posit the ur-Mishnah's existence and its accessibility, along
with the Tosefta, to the redactor of Mishnah. I cannot deduce which
paragraphs of our Mishnah were taken "as is" from the ur-Mishnah and which
came from elsewhere or were fabricated on the spot. I can only determine, by
closely comparing the Mishnah and the Tosefta, that some ur-Mishnah
snippets are modified by the redactor of Mishnah as he assimilates them into
his Mishnah and some Tosefta paragraphs are reformulated by him as he
incorporates them into his Mishnah. I will work with these "slim pickings"
and see what secrets they yield.
Thus, the Mishnah is an amalgam of the two older texts, the ur-Mishnah
and the Tosefta, and other materials, and was produced by the redactor of
Mishnah, early in the third century C.E., to reflect his own thinking. 72 When
working with the Tosefta, the redactor of Mishnah frequently reshapes and
compacts the material he finds there. 73 The Tosefta tells a great many stories
and the Mishnah far fewer. Often the redactor of Mishnah excises midrash
aggadah, which the Tosefta possesses in abundance. Often he produces new
material of his own for his collection. It sometimes takes the form of mne-
monic devices that he inserts at strategic points 74 and sometimes paragraphs
on the same topics as those addressed by the earlier collections but not found
in them. 75 I am thus breaking with conventional wisdom and suggesting,

72
Although I do not know for sure who the redactor of Mishnah is, I am not ruling out R.
Judah ha-Nasi (Rabbi). The Mishnah emerged in his day and he may have been the redactor.
The strongest argument against Rabbi as redactor is that his views, as represented in the
Tosefta, often do not match the views in the Mishnah. Did he modify his own views for
inclusion in this grand collection, incorporating elements of those of his colleagues? Or did
someone else edit the Mishnah? An argument in favor of Rabbi as redactor of Mishnah is that
his views appear in the Tosefta more frequently than those of any other tanna of his
generation, except for R. Simon b. Eleazar. See nn. 11 and 91.
73
A similar point is made by N. Braverman. See n. 71.
74
Since the Tosefta does the same, albeit less frequently, the redactor of Mishnah seems
to have learned this technique from the Tosefta.
75
As evidenced by its consistency of style, tight structure, logical presentation of topics,
and abundance of mnemonic cues, there is no question that the Mishnah has a redactor.
Neusner has made this point repeatedly. See, for instance, Judaism, The Evidence of the
Mishnah (Chicago, 1981), 239. As for the Tosefta, it is difficult to say. It evolved over time
but does not seem to have undergone editing in the same way and to the same extent as the
Mishnah. Because it was a commentary, not an independent work, perhaps the redactor of the
Tosefta had different editorial policies. He does not rewrite but only interprets. To those who
claim that the Tosefta is not a unitary document and cannot, therefore, be subjected to this
kind of analysis, I would respond that close examination of the Tosefta leads to a different
conclusion. Disjunctures are to be expected in a dependent work. They are not evidence of
lack of redaction.
22 Chapter I: Rethinking the Relationship between the Mishnah and the Tosefta

along with other recent researchers, that the redactor of Mishnah freely
rewrote his materials.76
What is also distinctive about the Mishnah, in comparison to the Tosefta, is
that it is, in the main, a freestanding collection. 77 At the same time, the more I
read the Mishnah, the more I notice that we cannot understand it fully without
referring to the Tosefta - both to explain difficult phrases and also to spell out
the "events" to which the Mishnah refers but which the Mishnah does not
bother to relate in full for its audience. How can the Mishnah simultaneously
be a collection that strives to be independent yet also one that can only be
understood, from time to time, by reading it with the parallel material in the
Tosefta? I think the answer lies within the question. It is true that the Mishnah
aims to be independent. And the same was probably true of the ur-Mishnah.
But the redactor of Mishnah seems to have assumed that his readers (i.e.,
hearers) had access to associated commentary or supplements.78 He could
therefore include relatively opaque phrases and feel confident that his readers
would consult the associated comments, the Tosefta, for elaboration.79 Thus,
the Mishnah is not dependent on the Tosefta in the same way or to the same
extent that the Tosefta appears to be dependent on the Mishnah. 80

76
See A. Gray, "B. Avodah Zarah Sugyot As Secondary Reworkings of Y. Avodah Zarah
Sugyot" (chapter 3), A Talmud in Exile: The Influence of Yerushalmi Avodah Zarah on the
Formation of Bavli Avodah Zarah, (forthcoming). The author argues that the Bavli
appropriated materials from the Yerushalmi, adapting and altering the Yerushalmi sugyot to
fit their new Babylonian context. She enumerates five ways in which sugyot are reworked,
among them reordering of materials. Although Gray deals with the amoraic and post-amoraic
periods and I with the tannaitic period, the notion of editorial reworking of older materials to
further one's goals is a theme common to both.
77
The Tosefta varies from tractate to tractate. Initial impressions suggest that T
Kodashim, for instance, may be an independent statement of tradition. But T Menahot 10,
which appears on the surface to be independent of M Menahot 10, here and there depends on
some other, earlier text. This point requires further investigation. See Neusner's analyses of
M and T Tohorot in The Tosefta, Its Structure and Its Sources (Atlanta, 1986), the chart on p.
192 in particular. Cf. Jaffee's comments in Torah in the Mouth (Oxford, 2001), 6.
78
At the very least, he assumed that his readers had access to the materials found in the
Tosefta. I am suggesting that he could even assume that they had access to a whole collection,
i.e., the Tosefta.
79
1 will even go so far as to say that reading the Mishnah together with the vast collection
of related tannaitic materials, many of which appear in the Tosefta, is the grand project of the
two Talmuds, the Bavli and the Yerushalmi. A typical Talmudic sugya analyzes a mishnah by
reading it together with, and often through the lens of, related teachings, or "baraitot," from
the Tosefta and elsewhere. It is tempting to speculate that the Talmud is thereby indicating
that these baraitot are the basis of the Mishnah. See chapter 7. Neusner, The Tosefta, 7, says
that sugyot in both Bavli and Yerushalmi "begin with Tosefta, measured against and
compared to Mishnah."
80
In this way I differ from M. Jaffee who says that the Mishnah and the Tosefta are not in
an exegetical relationship (electronic communication, 13 December 2002). Why not assume,
he says, that neither the Mishnah nor the Tosefta reformulates the other but that both draw
 C. New Model 23

Tosefta means collection or addition or supplement. This name is apt if we

see the Tosefta as a commentary on an ur-Mishnah. It is also a Tosefta to
those paragraphs of the ur-Mishnah that have been incorporated into our
Mishnah essentially verbatim. The Tosefta, therefore, relates to our Mishnah
in two opposite ways at the same time: it is the basis of many Mishnah
paragraphs and a commentary on many others.81 With this significant
modification, I uphold Sherira Gaon and all those who followed him. They
spoke of the Tosefta as a commentary on the Mishnah. I accept that
characterization but add two caveats: 1) the Tosefta comments not on our
Mishnah but on an ur-Mishnah, much of which later became our Mishnah.82
2) The Tosefta is itself one source of the Mishnah.
Many scholars before me moved in the direction of seeing the Tosefta as
earlier than the Mishnah. Y. N. Epstein, as noted above, posits the existence
of an early Mishnah of R. Akiba,83 and an early, accompanying Tosefta of R.
Nehemiah, and also notices that our Tosefta often deviates from the order of
our Mishnah. He does not, however, take these observations to their logical
conclusion and suggest that the Tosefta was a commentary on a different,

from a third work? My answer is that the texts themselves, the Mishnah and the Tosefta,
suggest that one is a commentary on the other. The Tosefta follows the Mishnah and
comments on it, if not our Mishnah then an ur-Mishnah, much of which found its way into
our Mishnah. In most instances, there is no compelling reason to assume a third text common
to both.
81
The working model is thus not one of simple dependency. The Mishnah and Tosefta
expand over time as they continually assimilate new materials. Each evolving layer of
Mishnah and Tosefta "bounces o f f ' all other evolving layers of Mishnah and Tosefta. Both
works reached closure at the end of the fifth tannaitic generation, sometime between 200 and
225 C.E. Schafer and Milikowsky, "Once Again," disagree about whether redaction precedes
transmission history or is a part of it. This book will focus not on the Tosefta paragraphs that
comment on the Mishnah or ur-Mishnah but on the Tosefta paragraphs that seem to have
been rewritten by the redactor of Mishnah. See chapter 7.
82
I have yet to come across a single case in which it is certain that the Tosefta is
commenting directly on our Mishnah, not the ur-Mishnah. Such a case would be one in which
the Tosefta comments on a mishnah that is clearly, by the criteria I set up, late. Another case
in which we could be sure that the Tosefta comments on our Mishnah, not on the ur-Mishnah,
would be one in which we possess both ur-Mishnah and Mishnah on the same topic. If the
Tosefta comments on both, it would be a case in which a passage in the Tosefta is later than
the Mishnah. This conceptualization of the Tosefta-Mishnah relationship facilitates
falsification through the use of contrary evidence.
83
Epstein, Mevo'ot, 21-23, proves that there was an early ordered Mishnah, prior to
Rabbi's Mishnah, by looking at many instances of the phrase "mishnah rishonah." He says
that there are remnants of this old Mishnah, which dates from the time of the temple, still in
our Mishnah today. These old materials are whole tractates, or whole chapters, or just a few
lines of halakah. See also Mavo Lenusah, 726-728.
24 Chapter I: Rethinking the Relationship between the Mishnah and the Tosefta

early Mishnah.84 H. Albeck presents many instances in which the Tosefta

"quotes" the Mishnah in a different wording. 85 Each time S. Lieberman, who
scrutinizes the Tosefta word by word for more than three orders, comes across
a datum that does not fit his theory of the Tosefta as a response to and com-
mentary on the Mishnah, he explains it away. 86 J. Neusner claims that a small
fraction of the Tosefta's contents, less than a fifth, reached final formulation
prior to the closure of the Mishnah.87 Even with this contradictory evidence in
front of them, these prominent scholars do not draw the implications of their
painstaking research.

84
Mevo 'ot, 242-243; Epstein says that our Tosefta used the old Tosefta of R. Nehemiah, a
commentary on the Mishnah of R. Akiba, and added materials to it to make it fit (nn'Nnn1?)
our Mishnah, the Mishnah of Rabbi. But the Tosefta left halakot in several places that
matched the early Mishnah. In this way we have in the Tosefta relics of the old order ( n o n
iwn) side by side with the new order. The Tosefta also contains new laws of the latest
tannaim. And perhaps the Tosefta also contains passages from the Mishnah collections of Bar
Qapparah and his students and from the Mishnah of R. Hiyya and R. Oshaia, and from the
Matnita of Rav. See n. 89. According to Epstein, the reason that the order of paragraphs of
the Tosefta differs so often from the order of paragraphs of our Mishnah is that it is
commenting on a different, earlier Mishnah. He implies that whereas the order of the
Tosefta's paragraphs could not change once it was fixed, the order of the Mishnah's
paragraphs could. It is not clear why he differentiates in this manner between the Mishnah
and the Tosefta. Once the various earlier Mishnah collections were blended into the Mishnah,
as Epstein claims was the case, why did the Tosefta, which was composed in response to the
Mishnah, not arrange itself to follow the order of the Mishnah? Of what use is a commentary
on a new document if it follows the order of paragraphs of the old document? My solution is
that the Tosefta is a commentary not on our Mishnah but on an ur-Mishnah, an earlier
Mishnah. But Epstein is saying that the Tosefta is a commentary on our Mishnah, not on an
early Mishnah. The Tosefta supplements the Mishnah by collecting old material, by bringing
dissenting opinions, by bringing the Mishnah of another tanna, and by explaining the words
of our Mishnah. Albeck, Mehqarim, 147-148, also comments on the issue of order. He says
that the tendency of the editor (orekh) [of the Tosefta] to maintain the order of the sources
before him is the reason that mishnahs are sometimes cited in the Tosefta in the wrong place.
85
Mehqarim, 150.
86
See, for example, Tosefta Kifshutah, Baba Qamma, 9-10. See chapter 5C.
87
Electronic communication, 19 May 2002. In The Tosefta, 4-7, Neusner says that it
cannot be shown that the Tosefta is consistently later than Mishnah. The Tosefta's pericopes
comment on the Mishnah's individual pericopes, not on the Mishnah as a completed
document, but the Mishnah, he says, probably underwent a further stage of redaction, after
the completion of the Tosefta. This is so, he continues, because the Mishnah contains material
that the Tosefta knows nothing about. The final redaction of the Mishnah contributed to it
generalizations, larger introductory materials, and probably concluding ones, too. In these
words Neusner comes very close to recognizing that the Tosefta commented not on our
Mishnah but on an ur-Mishnah and that our Mishnah was redacted, in part, at a later time than
the Tosefta. For more on Neusner's recognizing the complicated nature of the priority issue,
see below, n. 102. See also A History of the Mishnaic Law of Purities, vols. 1-22, in
particular vol. 6, 156, where Neusner says that on occasion the Tosefta is anterior to the
Mishnah.
 D. Challenges and Responses 25

D. Challenges and Responses

Several challenges have been raised to this new model of the Mishnah-
Tosefta relationship. If the Mishnah is later than the Tosefta, some say, why is
there a layer of late tannaitic statements (fifth generation, T5) in the Tosefta
but a very thin parallel layer in the Mishnah? This phenomenon demands
explanation. According to A. Goldberg, 88 the presence of these comments in
the Tosefta suggests that the Tosefta continued to evolve even after the
Mishnah came to closure. The Tosefta, therefore, at the very least in this latest
layer, is a commentary on the Mishnah. My response is that, yes, the Tosefta
is the collection that accompanied the Mishnah when it was wr-Mishnah, and
also later, when it became our Mishnah. But the Tosefta also functions as a
source of our Mishnah. Even if the Tosefta continued to assimilate new
material in the last tannaitic generation, that does not contradict the possibility
that much of the Tosefta is older than and is the basis of the Mishnah.
Goldberg does not admit that possibility.
But there is another way of interpreting these findings. Since statements of
late tannaim do appear in the Mishnah, even though in smaller numbers than
in the Tosefta, 89 and it is important to remember at this juncture that the

88
The Literature of the Sages, 283. The presence of the statements of late tannaim also
seems to have stopped others, like Epstein and Friedman, from saying that the Tosefta
precedes the Mishnah globally. In "The Primacy of Tosefta to Mishnah in Synoptic
Parallels," 101, Friedman suggests that the reason the Tosefta has to have been redacted later
than the Mishnah is the presence in the Tosefta of "an entire post-Mishnah stratum."
89
Appearance of late tannaim (T5) in the Mishnah and in the Tosefta (from a database
search, crude numbers):
Rabbi, M 25, T 117
R. Eleazar b'R. Simon, M 1, T 38
R. Natan, M 2, T 64
R. Yosi b'R. Judah, M approx. 13, T 61
Symmachus, M 3, T (4+6+8=) 18 [013BD ,013Z3,D ,013010]
R. Simon b. Eleazar, M about 6, T about 200
R. Simon b. Judah, M 4, T 39
R. Eleazar b. R. Yosi, M 0, T 12
R. Menahem b. R. Yosi, M 0, T 6
R. Ishmael b. R. Yosi, M 0, T 9
R. Simeon b. Menassia, M 1 T 16
Other late tannaim (T6):
Bar Qapparah appears not at all in either the Mishnah or the Tosefta. He is said to have
produced a collection of halakot and to have interacted with Rabbi. His statements are
introduced in both Talmuds as "Tni Bar Qapparah." His statements are also cited by
amoraim. The standard reference works describe him as a member of the transitional
generation between tannaim and amoraim.
R. Hiyya, a colleague of Bar Qapparah, appears not at all in the Mishnah and only a
handful of times in the Tosefta. His statements are likewise introduced in the Talmuds as "Tni
26 Chapter 1: Rethinking the Relationship between the Mishnah and the Tosefta

Tosefta is three or four times as long as the Mishnah, it follows that the
redactor of Mishnah does know comments of late tannaim. Also, there are
places in the Mishnah where he presents their views but deletes their names,
turning an attributed statement into an anonymous one. 90 I therefore do not
think that the late tannaitic material necessarily postdates the Mishnah but that
there may be a reason that the redactor of Mishnah chose to include it less
often. It is possible that he did not value the views of his contemporaries,
some younger than he, as much as those of past tannaim. This attitude would
not be surprising for a hierarchical society, which rabbinic society was. 91
Another challenge to the theory of the Mishnah as a reformulation of the
Tosefta and the ur-Mishnah, is that many scholars still hold that the redactor
of Mishnah did not alter his sources. If he did so at all, then in very circum-

R. Hiyya," more than 100 in the Bavli and more than 200 in the Yerushalmi. They are also
introduced as "Amar R. Hiyya."
R. Oshaia does not appear at all in the Mishnah or the Tosefta. He is cited in the Talmuds,
many more times in the Yerushalmi than the Bavli, as "Tni R. Oshaia" or "Amar R. Oshaia."
He is also cited as an amora and by other amoraim.
What does all of this add up to? First, that the redactor of the Mishnah, himself a T5
tanna, knew many statements of T5 tannaim but did not include them in his Mishnah for a
variety of reasons - political, geographical, and so on. He apparently did not value the
statements of his junior colleagues in the same way as he valued statements of earlier
tannaim. The T5 comments remained, instead, in the Tosefta. Second, T6 tannaim, Bar
Qapparah, R. Hiyya, and R. Oshaia, who lived too late to be included in the Mishnah, also do
not appear in the Tosefta and yet appear hundreds of times in the Talmuds, introduced as
tannaim. If the Tosefta emerged a generation later than the Mishnah, it is hard to understand
their exclusion. It therefore seems more reasonable to conclude that the Tosefta emerged at
about the same time as the Mishnah. Third, the core of the Talmudic sugya is Mishnah and
the collection of (Tosefta) baraitot that serve as its basis. The very next layer consists of
statements of late (T6) tannaim who are also early amoraim. This layer constitutes the earliest
commentary on the Mishnah and its associated baraitot. It is possible that some of these late
tannaim tried themselves to produce Mishnah collections but were superseded by the
Mishnah of the redactor. Their oeuvre instead formed the earliest layer of commentary on the
Mishnah.
90
For example: the Mishnah is according to R. Natan in M Bezah 4:2 (cf. T Yom Tov
3:10); according to R. Simon b. Eleazar in M Yevamot 15:7 (cf. T Yevamot 14:2); according
to R. Eleazar b. R. Simon in M Hallah 3:11 (cf. story in T Pisha 8:10). There may be many
more dropped attributions. If so, the redactor did include the views of late tannaim in the
Mishnah but sometimes deleted their names. We see this same phenomenon with tannaim of
other generations as well. More investigation is needed of the ways in which late tannaim
functioned. See Albeck, Mehqarim, 150, who deals with this matter at great length.
91
L. Levine, in The Rabbinic Class of Roman Palestine in Late Antiquity (New York,
1985; 1989), describes a rabbinic class that was organized around seniority and achievement.
He writes about the tensions that result when students dispute teachers or usurp authority. He
also discusses regional rivalries. Such a picture is consistent with a redactor excluding views
of contemporaries and competitors.
 D. Challenges and Responses 27

scribed ways. Such is the v i e w o f Halivni 9 2 and Albeck, 9 3 a m o n g others.

A c c o r d i n g to Halivni, the most a redactor could do w a s s e w old sources
together so that the final product said something n e w . 9 4 E v e n Epstein, w h o
ascribes a freer hand to the redactor o f Mishnah than s o m e o f his colleagues,
says that the redactor could only make minimal changes to the Mishnah
collections that were transmitted to him. 9 5 But careful comparison o f the texts
suggests otherwise. W h e n I place passages side by side, I cannot avoid
noticing that the redactor freely reworked his sources, totally reconfiguring
them. 9 6
A related challenge is that many scholars assume that the longer version o f
a g i v e n text is an expansion o f a shorter one and hence later. Examination o f
many sets o f parallel texts leads one to b e l i e v e that often the opposite is true,

92
Meqorol Umesorot, Baba Qamma, (Jerusalem, 1993), 6.
93
Mehqarim, 173. According to Albeck, because the editor did not alter his sources but
rather arranged them (included them) as he found them, he sometimes repeats the same
halakah in two places. This is not a plausible point of view.
94
Recently, however, Halivni has spoken of the creativity of the redactor of the Mishnah
(conversation, 16 February 2004). C. Hayes calls the old model "separate but equal" and the
new model "editorial" (conversation, 15 April 04).
95
Epstein, Mevo'ot, 211-224, says that Rabbi could change the Mishnah and add to it but
creating a new composition or introducing radical change was impossible because the
Mishnah was already "official" ( n w i ) , on everyone's lips. Rabbi left his sources alone to the
extent that he could. The kinds of changes he could make include, for instance, altering the
early halakah to accord with his own opinion. Epstein also says that the Mishnah was a short
compendium, composed of principles. The detailed material entered the Tosefta. He cites T
Zavim 1:5, "When R. Akiba would arrange halakot (italics mine) for the students, he would
say, whoever has an argument against his colleague, let him come forward and say it." This
means, according to Epstein, that R. Akiba produced a Mishnah collection and also
commented on it. I would suggest that T Zavim 1:5 is saying that R. Akiba was not sure about
the correct version of the Houses' dispute and asked for input from his colleagues. The
expression lesader halakot might merely mean to "verify the wording." It does not
necessarily imply that R. Akiba produced a mishnah collection. See, in particular, Epstein's
summary (224): "Rabbi changed, added, deleted, and examined each mishnah . .. combined
different sources, such as the mishnahs of R. Meir and R. Judah. . .."
96
Following Kugel's description of Bible commentaries as retellings of stories according
to the teller's own views (n. 61), I suggest that this kind of behavior characterized rabbinic
editors as well. Not altering texts in the course of transmission is a reasonable assumption to
make for a tradent whose only task was to memorize and repeat. But it is not apt for someone
who sought to put together a collection, as did the redactor of Mishnah. It seems likely that he
felt two contradictory pulls at the same time: to keep the received text the same, not altering it
in any way, and to make changes for a defined set of purposes, among them ease of
transmission and modification of the law. At the same time that the redactor of Mishnah
seems to have felt free to modify the sources at his disposal, he also left many "idiosyncratic"
wordings alone. The rule seems to have been, when it is not necessary to change, it is
necessary not to change (a la Bertrand Russell).
28 Chapter I: Rethinking the Relationship between the Mishnah and the Tosefta

that the shorter text is a later condensation of the longer one. 97 This observa-
tion may have implications for the study of the synoptic gospels. Rather than
viewing Matthew as the oldest of the three, and Mark and Luke as later
expansions, some scholars now suggest that Mark and Luke may be older and
Matthew a later condensation. 98 Similarly, a list is not necessarily older than
the "fleshing out" of the list. On the contrary, the list may be a late addition to
the text, designed to assist in remembering the order of the many paragraphs
that address a common point.
Yet one more challenge to these ideas about the Mishnah and the Tosefta
and their interrelationship comes from orality theory. Some orality critics say
that I am working from an old model of textual dependency that, according to
their theory, makes no sense. In their opinion, scribes had access to pools of
material. They could draw upon them at will and fashion them into new or
expanded statements of their own making. It is therefore pointless to study the
similarities and differences of the Mishnah and Tosefta so closely. Both are
oral performances of an early written record no longer extant. There is no
reason to assess the nature of their relationship because the two works do not
have a relationship with each other. Neither is earlier or later than the other.
I do not dismiss the findings of orality theory but hold that they need to be
applied with care to Mishnah and Tosefta studies. Orality theory, as M. Jaffee
has shown for M and T Parah 3, 99 goes a long way to explain why texts that
appear to have borrowed from one another have not done so at all. But I do
not think orality theory provides a satisfactory model for explaining the simi-
larities and differences of the Mishnah and the Tosefta in many other cases.
The Tosefta is not just a parallel, different performance of the same
material as the Mishnah. It is a companion volume. It seems to know an
ordered collection outside of itself. In my model, the Mishnah "agglutinized,"
to use M. Jaffee's term, over time. As it was evolving, a separate but not
independent commentary, an exegetical collection, rose up alongside of it.
The redactor of Mishnah seems to have blended together the two collections,
the early Mishnah and its associated commentary, to produce his own, largely

97
Braverman, Bein Leshon, 38, makes this point.
98
M. Hengel, electronic communication, 26 July 2004, suggests a parallel to Mishnah and
Tosefta development in the synoptic gospels. Although Matthew was long considered the
earliest of the synoptics, with Matthew and Luke secondary and dependent on Matthew,
Hengel writes that Matthew is actually the most recent of the three. Matthew condenses
materials that he takes from Mark and Luke; they do not expand material that they take from
him. Since these gospels date to the time of the tannaim, it is possible that the evolution from
long to short supports, or is at least consistent with, the theory that the Mishnah condenses
materials it took from the Tosefta.
99
M. Jaffee, Torah in the Mouth, chapter 6; "What Difference Does the 'Orality' of
Rabbinic Writing Make For the Interpretation of Rabbinic Writings?" (draft, 21 November
2003).
 E. This Book 29

independent work. That he was successful in doing so is evidenced by the fact

that the Mishnah became the subject of amoraic scrutiny. I cannot describe
the process in full. What I am trying to do is not begin with traditional
assumptions about the nature of the relationship of these two texts but to read
them in tandem and see what they have to say about themselves. The evidence
points to an orality model, but somewhat different from the one presented by
Jaffee. The two models share the notion of an ur-Mishnah but differ on how
the Mishnah and the Tosefta utilized it. 100
A final challenge to the new model is that no one may read the Mishnah
differently from the way the amoraim read it in the Talmud, because they,
coming from a place and society much closer to the Mishnah than we are, can
be assumed to know things about the Mishnah that we do not. 101 My answer is
that I am in good company. Maimonides did so a long time ago. Epstein and
Albeck and Halivni, among others, have done so recently.

E. This Book

There are five points that I wish to make in this book.

1) The Tosefta existed as a collection prior to our Mishnah and is itself a
commentary on an early Mishnah, an ur-Mishnah.
2) The redactor of Mishnah rewrites paragraphs and also whole chapters of
the Tosefta in accordance with his own halakic approach.
3) He compresses lengthy aggadic excurses, making only brief reference to
them, sometimes in such an opaque manner that the Mishnah cannot be under-
stood on its own.
4) He introduces mnemonic devices into the text, thereby superimposing
structure on what appeared to be loosely organized material. 102

100
Note that the Mishnah and the Tosefta are filled with instances of later tannaim
arguing about the formulation of the views of early tannaim, with the later tannaim saying,
for instance, "They did not divide over (lo nehlequ al) this point but that point." Statements
like these make it hard to subscribe to the notion that there was no chain of oral tradition. The
written version o f our texts paint a picture in which debates in one generation are transmitted
orally to the next. On occasion, the recipients claim that the tradents mistransmitted and that
the debate was actually about a different but related point. These kinds of statements suggest
that attention was paid to precision in oral transmission and that texts were cast into a set
form. Even so, later tannaim could challenge their accuracy. This is what the tannaitic texts
say about their own transmission.
101
It is also true that the amoraim may have chosen to read the Mishnah in ways that
departed from the simple meaning o f the words because they had legislative goals to attend
to. Scholars do not.
102
Neusner has made a similar point for years in his many works on the Mishnah. He says
it clearly in The Tosefta, 5 - 7 , in reference to the Mishnah's relationship to the Tosefta. There
are materials in the Mishnah, he writes, that "do not appear to be drawn from antecedent,
30 Chapter 1: Rethinking the Relationship between the Mishnah and the Tosefta

5) Tosefta passages, already altered by the redactor for inclusion in the

Mishnah, continued to evolve even after incorporation into the Talmuds.
In each section I will present examples to demonstrate its main thesis. The
examples are arranged in descending order. The first few will attempt to pro-
vide proof for the new model. The rest will assume that the Tosefta precedes
the Mishnah and show how that assumption leads to more precise interpreta-
tions of the Mishnah. When read like this, the Mishnah takes on new mean-
ing. It becomes a matnita hadeta.

individual units of tradition but rather serve fairly clearcut redactional purposes." In these
pages Neusner seems pulled in two directions as he contemplates the issue of the priority of
Mishnah over Tosefta or Tosefta over Mishnah. His conclusion is that priority is shared. See
n. 87.
 Chapter 2

The Tosefta as a Commentary

on an Early Mishnah

A. The Theory

Chapter 1 argues that much of the Tosefta precedes the Mishnah and serves as
its basis. The question naturally arises, how can the Tosefta have been a
source of the Mishnah, if the Tosefta, in essence, is a wide-ranging com-
mentary on and supplement to the Mishnah? Certainly many passages in the
Tosefta make no sense on their own and can only be understood when read
together with the passage on which they comment. But the better question to
ask is, to which text do these Tosefta passages respond? Which text do they
cite, in part or in whole, and then explain? It is all too easy to conclude that
the text is the Mishnah. But this might not necessarily be so.
A new answer to this query is that the Tosefta often comments on a
Mishnah but not our Mishnah.1 Careful examination of paragraph after para-
graph of Mishnah and Tosefta shows that the Tosefta sometimes quotes a
phrase from some other text and explains it, but the quotation, although simi-
lar to the Mishnah, does not match word for word. It has long been observed
that when the Tosefta asks "X, how so?" (eizehu X, X keizad), X is a phrase
from the Mishnah. For instance, T Kiddushin 1:5 asks, "How does a Hebrew
slave redeem himself by gera 'on kesef (deduction from the purchase price)?"
and this exact phrase appears in M Kiddushin 1:2. But the Tosefta also says, a
little later in the same paragraph, "How does one accomplish hezqat qarqa 'ot
(taking possession of land)?" again apparently quoting a phrase from the
Mishnah, but the Mishnah says something different, P P ] N V I N S P 1 ? WW • 1 DD:"
"nprm . . . (assets with backing are acquired by means of undisturbed
possession). The Mishnah's phrase "assets with backing," although it, too,
refers to real estate, is quite different from the Tosefta's qarqa'ot (lands). A
commentary would not cite the source text in a very different formulation. 2 In

1
My paper on the early Mishnah was presented at the 34th Annual Conference of the
Association for Jewish Studies, December 2002. This chapter is the full version of that paper.
It also appears in the Jewish Studies Internet Journal (2005): 1-24.
2
If the Tosefta is a commentary, one may presume that the text upon which it comments
has arrived at a reasonably high degree of fixity. Small variations in the source document and
its citation in the commentary are to be expected, however. A word like "and" appears in
32 Chapter 2: The Tosefta as a Commentary on an Early Mishnah

other words: if the Tosefta cites the Mishnah verbatim more than 80% of the
time, how to account for those relatively few places where it does not?
Many cases like these make it clear that the Tosefta was not quoting our
Mishnah but some other, ordered, older collection. 3 This observation solves
the problem of the dual nature of the Tosefta. The Tosefta is both a commen-
tary on an earlier text, an ur-Mishnah, and also the basis of a later text, our
Mishnah. 4
Such discrepancies between the Tosefta's citation of the Mishnah and the
Mishnah itself have been noted in the past. Halivni says that the tanna in T
Baba Qamma 1:1, who cites a text that is not identical to the parallel mishnah
(M Baba Qamma 1:2), knew "a different recension of an old mishnah." 5 This
is not an unreasonable claim. But I suspect Halivni formulated his findings in
this way because of his preconceived notion that the Tosefta is a commentary
on the Mishnah. Therefore, whenever the Tosefta appears to quote the Mish-
nah, even if the words are different, it is still our Mishnah, just some other
recension. However, if one acknowledges the possibility that the Tosefta is
often the basis of the Mishnah and hence earlier, then an alternative explana-
tion comes to mind: the Tosefta cites not an alternative version of our Mish-
nah but a forerunner of our Mishnah. I am thus agreeing with Halivni but
nuancing his assertion. Yes, the Tosefta cites a different recension of the
Mishnah, an earlier one.
A. Goldberg also notes, in a long article on the first two chapters of T Baba
Qamma, how common it is for the Tosefta to cite our Mishnah in a different
wording.6 Goldberg, who consistently sees the Tosefta as a continuation and
completion of the Mishnah, says that in these instances the Tosefta deliberate-

some versions but not in others. I am not basing my claims on small variations but on large
ones.
3
Note that an old Mishnah is a necessary assumption if the Tosefta predates the Mishnah.
If it does not, the Tosefta might be commenting on a different version of our Mishnah. See
below.
4
The new model I am proposing fits the first four orders of the Tosefta well, as evidenced
by many examples. It remains to be seen if Qodoshim and Tohorot adhere to this model or to
some other. See below. See chapter 3E.
5
D. Halivni, "A1 Herkevah Shel Hamishnah Harishonah Bebava Qamma," Iyyunim
Besifrut Hazal, Bamiqra, UveToldot Yisrael (Ramat Gan, 1982), 114, says that the Mishnah
and the Tosefta each knew np'ny mtra bw m n x NOT}. This is not a reference to an early
Mishnah collection but to the fact that M BQ 1:2,3, as they appear in our Mishnah, seem to
date from an early period.
6
"Seder Hahalakot Utekhunot Hatosefta," in Mehqerei Talmud 2, eds. Moshe Bar Asher
and David Rosenthal (Jerusalem, 1993), 152. See also Goldberg's Perush Mivni Ve'analiti
Letosefta Massekhet Baba Qamma (Jerusalem, 2001), 19, where the author says that there is
no reason to think that the Tosefta follows an "early order" (seder qadum) of the Mishnah, as
claimed by some, nor that the ordering of the Tosefta preceded the ordering of the Mishnah.
He does not substantiate these arguments. Nor does he provide bibliographical references.
 A. The Theory 33

ly changed the wording of the mishnah it was citing in order to explain it.7
This understanding fits neither the words nor the rhetoric of the Tosefta.
When the Tosefta says "they have said"8 and then cites a phrase from its
Mishnah and explains it, there is no reason to think the Tosefta changed the
citation's wording. 9 It is necessary for Goldberg to make this conjecture in
order to reconcile the empirical data with his theory of the Mishnah's pri-
macy. 10
By presenting cases in which the Tosefta cites a Mishnah that differs from
ours, I will bring evidence of the existence of an early Mishnah. 11 Many
scholars have posited the existence of such a Mishnah but did not provide
proof. They based themselves merely on scattered references in the Talmud to
Mishnah collections of a number of tannaim, such as the "Mishnah of R.
Akiba." 12 Y. N. Epstein did begin to demonstrate the existence of an early
Mishnah, a mishnah qedumah, by showing that our Mishnah occasionally

7
ito1?1? an-ps nrf? 'id p®1? ' i r r a ruwDn tin sran1? s'n xnsoinn mo'ran m m n n nns . . .
ruwnn ("Seder," 152).
8
Some of the phrases the Tosefta uses to quote an outside source are: HS7
n m nnw ,vrjn , na , N , n n x nn 'Ma .nax® a"\w. See, for example, T Berakhot 1:5 and T
Ta'anit 1:5,6.
9
M. Jaffee (electronic communication, 28 January 2004) says that in the ancient world
citations were not exact. However, since the Tosefta's citations of the Mishnah are so often
exact, I will follow the evidence before me in rabbinic literature rather than the experience of
other literatures. Exact citation, which assumes a fixed formulation, seems to be a self-
proclaimed characteristic of much of rabbinic literature. See below. For further references,
see M. Jaffee, Torah in the Mouth, bibliography.
10
Others, too, talk about early texts. Lieberman, Tosefta Ki-fshutah, Baba Qamma, 9, says
that, on occasion, the tannaim of the Tosefta were not commenting on the Mishnah but on a
baraita. Neusner, The Tosefta, 4-7, says that it cannot be shown that the Tosefta is
consistently later than the Mishnah. The Tosefta's pericopes comment on the Mishnah's
individual pericopes. But the Mishnah, he says, probably underwent a further stage of
redaction, after the completion of the Tosefta. See chapter 1, n. 102.
1
' I cannot speculate on the nature of the ur-Mishnah or its extent. But if it exists, I think
that the Tosefta explains this earlier collection and vastly expands it. On some occasions, the
Tosefta appears to comment on an older text and on others it seems to develop it, not just
quote and explain it. I am further suggesting that the Tosefta may preserve for us some sense
of the ancient mode of learning. The tannaitic circles may have begun their deliberations with
a Mishnah collection that was already in existence and then proceeded to explain and expand
the early collection, as they saw fit. The wide-ranging commentary and the growing base text
did not merge but probably circulated together for many decades as text and associated
comments. See chapter 7.
12
See Mevo'ot Lesifrut Hatannaim, 71-87. Epstein suggests that R. Akiba's Mishnah
collection lies at the base of our Mishnah today. Since it dissolved into R. Meir's collection,
which then dissolved into Rabbi's, one cannot identify it. See D. Henshke's theories of an
early Mishnah in Mishnah Rishonah Betalmudam Shel Tannaim Aharonim (Ramat Gan,
1997). See n. 30. See also chapter 1, n. 5.
34 Chapter 2: The Tosefta as a Commentary on an Early Mishnah

cites an earlier text. 13 He does not, however, apply this method to the
Tosefta. 14
To demonstrate this model of the Tosefta as a commentary on an ur-
Mishnah and also as the basis of our Mishnah - to show how this theory arises
from the texts themselves - this chapter will first present several examples in
which one can readily see that the Tosefta quotes an earlier text but that it is
not our Mishnah. Reading and comparing an entire chapter of Mishnah and
Tosefta will show how their interrelationship is best explained according to
the new model. 15

B. Four Illustrative Sets of Texts

1. The Tosefta's Stringent Stand on Dogs and the Mishnah's More Liberal One
r r o ^ n T piD x n p x m r u w a
. . . . ^ ¡ o w fiK3 npi nam •p'raa px
.rbwbvn n i p p r r n ID a s NVN m m x "7TP >6

r ro^n n p-is xnp xnn xnooin

T^TM yw n n s c ; D"S?N
nso 1 ? r v o r o o n m - r s n i ^ r a Vnx
Vw n i x ^ i r a i m s i n i i n p O ) c r i r n
.m 1 ?'' 1 ?! i r n x •p-prim
. c r - p m "77M3 b n i a n ' i s -ITV1? h

13
Mavo Lenusah, 726-728.
14
Epstein came close to saying that the Tosefta comments on an early version of the
Mishnah when he posited that there once was an early Tosefta that commented on an early
Mishnah and that remnants of that early Tosefta are found in our Tosefta ( M a v o Lenusah,
242). This theory originates in BT Sanhedrin 86a, which speaks of anonymous Tosefta
passages as attributable to R. Nehemiah and anonymous Mishnah passages to R. Meir, and
claims that both collections are based on, or "according to," R. Akiba. But Epstein is still
saying that our Tosefta is a commentary on our Mishnah. He does not suggest that any part of
the Tosefta serves as the basis of our Mishnah. I thus differ from Epstein in two ways: 1) He
sees our Tosefta as a commentary on our Mishnah; I see it as a commentary on an ur-
Mishnah; 2) He does not see our Tosefta as a source of our Mishnah. I do. Friedman, "Tosefta
Atiqta," Tarbiz 62 (1993), 321, in his analysis of M Shabbat 16:1, notes that the words af al
pi she 'amru ("even though they have said") introduce a text that does not match the parallel
Mishnah. He suggests that this paragraph of the Tosefta knew an early mishnah, a mishnah
qedumah. But he does not turn this specific observation into a more general theory. He does
not suggest, as I do, that the Tosefta is a commentary on an ur-Mishnah. See below.
15
How does this approach mesh with orality theory which rejects the model of text and
commentary for the evolution of rabbinic works and replaces it with multiple, parallel per-
formances of oral and written pre-redactional materials? In my opinion, conclusions emerging
from close, synoptic readings of rabbinic texts may offer a corrective to the orality hypo-
thesis. See Jaffee, "What Difference Does the 'Orality' of Rabbinic Writing Make for the
Interpretation of Rabbinic Writings?" (unpublished paper); Torah in the Mouth, chapter 6.
 B. Four Illustrative Sets of Texts 35

M Baba Qamma 7:7

One may not raise small cattle in the land of Israel. . . .
One may raise a dog only if he ties it with a chain.

T Baba Qamma 8:17

Even though they have said, "One may not raise dogs in a settled area,"
But one may raise them in towns which are near the frontier.
By day one ties them up on iron chains,
But one unties them by night.
R. Liezer says: one who raises dogs is like one who raises pigs.

M Baba Qamma 7:7 says that a person may not raise a dog in the land of
Israel unless he keeps it on a chain. The parallel Tosefta passage (T Baba
Qamma 8:17) quotes a text about raising dogs, presumably from the Mishnah,
and then draws a distinction between sparsely and more densely populated
areas. Even though the cited text says that one may not raise dogs at all in a
settled area, the Tosefta says that a person may do so in border towns, pro-
vided he keeps them tied up on iron chains by day and lets them loose only at
night. Since the Mishnah says that one is allowed to raise a dog on a chain
anywhere in Israel, even in a settled area, and the Tosefta's cited source does
not allow a dog in a settled area under any circumstances, 16 the Tosefta cannot
be quoting the Mishnah. The Tosefta's source is likely, therefore, to be an
earlier version of the Mishnah, an ur-Mishnah. 17 The innovative point of the
Tosefta is that dogs are allowable in border towns if certain precautions are
taken. The redactor of Mishnah later fused together the ur-Mishnah and the
Tosefta. Instead of saying that one may not raise dogs at all in a settled area,
as does the ur-Mishnah, the redactor of Mishnah says that a person may raise
a dog, anywhere, provided he keeps it restrained. The redactor of Mishnah
adds the Tosefta's point about chains to the ur-Mishnah's restrictive statement
to create a new, more liberal rule for his Mishnah. 18 This interpretation of the

16
I am suggesting that the cited source ends with "in a settled area" because the Tosefta
passage begins with the words "even though they have said." When it continues and says
one may raise them," it sounds as if the Tosefta is contributing its own point, a limitation of
the older text. It is also possible that the cited source ends with "near the frontier" and the
Tosefta contributes the point that one may tie them with chains by day and so on.
17
A negative attitude to dogs is also found in 4QMMT (=4Q396), one of the Dead Sea
Scrolls: ( 8 ) . . . And one should not let dogs enter the h[o]ly camp because (9) they might eat
some of the [bo]nes from the tempfle with] the flesh on them. For (10) Jerusalem is the holy
camp. . . . (The Dead Sea Scrolls Study Edition, eds. Florentino Garcia Martinez and Eibert J.
C. Tigchelaar, vol. 2, Leiden, 1998). The citation from 4QMMT provides some support for
my claim that the ur-Mishnah said that one may not raise dogs in a settled area. Note that the
4QMMT passage is somewhat similar to an earlier section of this very mishnah (M BQ 7:7):
"one may not raise chickens in Jerusalem because of the holy [foods]." I thank Z. Steinfeld
for bringing this text to my attention.
18
The Tosefta allows dogs on chains in border towns. The redactor of Mishnah allows
dogs on chains in any town. Goldberg, Perush Mivni, 161, says that the tanna of the Tosefta
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Eugénie, do not avoid her. The time has come when she ought to
know you as you are. Yes, we have at last arrived at the decisive
hour which Victor spoke of the night before he died. Mlle. Eugénie
must now be enabled to appreciate you as you deserve. She must
pity you.... She must love you! If this is not the case, however sad it
will be to give up an illusion without which it seems impossible to be
happy, renounce it, and acknowledge without shrinking: 'She does
not love me; she never will love me; she is not the wife God destines
me.' But do not act hastily. Believe me, if she is intended for you,
whatever has been done, nothing is lost. But it is my opinion she is
intended for you."
These words did Louis good. "I hope you are not deceived," said he,
"and this very hope revives me. I will try to believe you are right. We
will do nothing hastily, therefore. But do you not think I could now
venture to disclose my sentiments to Mlle. Eugénie, if I have a
favorable opportunity, and see it will give no offence? One
consideration alone restrains me—I fear being suspected of seeking
her hand from interested motives."
"The time for such suspicions is past. If Eugénie still cherishes them,
it will lower her in my estimation. She is twenty-two years of age.
She has a good deal of heart and an elevated mind, and is capable
of deciding her own destiny. I therefore approve of your plan. If she
loves you, she will have the courage to avow it to her parents. If she
does not love you, she has sufficient courage to make it evident to
you."
"How I wish the question already decided!"
"No youthful impulsiveness! You need more than ever to be
extremely cautious while feeling your way. Your situation is one of
great delicacy. Act, but with deliberation."
Such was pretty nearly the advice I gave Louis, often stopping to
give vent to my grief, which was as profound as ever. He left me
quite comforted. Though he did not say so, for fear of being
deceived, he thought Eugénie loved him, and believed, with her on
his side, he should triumph over every obstacle. When a person is in
love, he clings to hope in spite of himself, even when all is evidently
lost.

CHAPTER XXV.
ALL IS LOST!-THE PROSPECT BRIGHTENS.

Louis spent several evenings in succession with me. He briefly

related how the day had passed, and afterwards took up the
different events, and enlarged upon them. He often found enough to
talk about for hours upon the sometimes ungrateful theme. I can
still see him sitting opposite my mother and myself in the arbor in
the little garden behind our house. Everything was calm and
delightful around us in those beautiful autumn evenings. Louis alone
was troubled. In vain we tried to restore peace to his soul: it was
gone!
I never comprehended so thoroughly all the power of love as then.
The profound sadness in which I was at that time overwhelmed
rendered me inaccessible to such passionate outbreaks—such fits of
elevation and depression as Louis was then subject to. I gazed at
him with a cool, dispassionate eye, but with the affectionate
compassion with which we regard a friend who is trying to make
himself unhappy. I was astonished; sometimes I was even—yes, I
acknowledge it—irritated to see how utterly he gave himself up to
the passion he had allowed to develop so rapidly in his heart.
Doubtless my poor friend remained resigned to the will of God, but
not so completely as he thought. It is true, even when his mind was
apparently the most agitated, we felt that piety was the overruling
principle; but then, what a struggle there was between the divine
Spirit, which always seeks to infuse calmness, and the gusts of
passion that so easily result in a tempest!
Ah! I loved my husband too sincerely, and I recall other loves too
pure, to dare assert that love is wrong. But believe me, my young
friend, I do not exaggerate in adding that, if love is not always
censurable, it is in danger of being so. We are told on every hand
that love ennobles the heart and tends to elevate the mind; that it is
the mainspring of great enterprises, and destructive of egotism. Yes,
sometimes; ... but for love to effect such things, what watchfulness
must not a person exercise over himself! How much he must distrust
his weakness! What incessant recourse he must have to God!
Without this, the love that might ennoble is only debasing, and to
such a degree as to lead unawares, so to speak, to the commission
of acts unworthy, not only of a Christian, but a man.
Allow me, my friend, continued Madame Agnes, to make use of a
comparison, common enough, but which expresses my idea better
than any other. Love is like generous wine. It must be used with
sobriety and caution. Taken to excess, it goes to the head, and
makes a fool of the wisest. You are young. You have never loved.
Beware of the intoxication to which I allude! If you ever do love,
watch over yourself; pray with fervor that God will give you the
grace of self-control. The moment love becomes a passion—an
overruling passion—ah! how its victim is to be pitied! When reason
and conscience require it, you can—I mean with the divine
assistance—banish love from the heart where it reigns; but believe
me, it will leave you as an enemy leaves the country it has invaded—
with fearful destruction behind. And first of all, it destroys one's
peace of mind. The soul in which passion has reigned continues to
bear marks of its ravages a long time after its extinction!...
Louis had arrived at this deplorable state; he had not full control
over his heart; his happiness depended on the success of his love.
Eugénie's image beset him everywhere. The word is hard, I confess,
but it is true. He attached undue importance to whatever had the
least bearing on this predominant thought. One day, he announced
he had seen Albert walking with a melancholy air. He was sad, then.
But why should he be sad unless his cousin had treated him coldly?
And Louis hastily added by way of conclusion: "Mlle. Eugénie knows
all I have to annoy me; she follows me in thought, she participates
in my sorrows, she repays me for them...." Another day he had
really seen her. She passed by his window, lovelier than ever, but
more thoughtful. She was doubtless as anxious as he to be freed
from the suspense in which they both were.
At last he came with important news. He had had the unhoped-for
happiness of meeting Eugénie. She was advancing towards him,
blushing with embarrassment, and was the first to greet him, with
an expression so friendly as to leave no doubt of her sentiments. He
returned her salutation, but was so overpowered with emotion that
he could scarcely speak. After some words of no importance, he
said: "I am going to leave you, mademoiselle."
Eugénie replied that she should regret to see him go. Then, as if to
intimate he had enemies in the house, she added: "More than one—
I wish I could say all—will be as afflicted as I at your departure. I
refer to those you have benefited, and to whom you might continue
to do good."
"Yes," said Louis, "it is hard to have to leave my work incomplete.
However limited it is, my soul is in it. But I must not make myself
out a better Christian than I am. It is not my work I shall leave with
the most regret...." He dared not complete the expression of his
thought.
Eugénie, generally so self-restrained, was visibly affected and
intimidated. She was about to reply, when Mme. Smithson suddenly
made her appearance. It looked as if she kept watch over her
daughter. When she saw her talking with Louis, she could not
conceal her annoyance. Saluting him in a freezing, insolent manner,
she said: "Eugénie, what are you doing here? Your cousin is hunting
everywhere for you to go to town with him!"
"There is no hurry," replied Eugénie, resuming her habitual coolness
and dignity. She went away, taking leave of Louis with a visible air of
decided sympathy.
This brief interview was sufficient to render Louis' hopes legitimate. I
agreed with him that Eugénie would have behaved very differently if
she regarded him with antipathy, or even with indifference.
"There is no doubt she knows all that has taken place," said I to my
friend. "If there is any plot against you, she cannot fail to be aware
of it, or, at least, suspect it. Under such circumstances, the very fact
of her showing you unmistakable sympathy is a sufficient proof that
she loves you."
At this time, an occurrence took place that had an unfortunate effect
on me, and created new difficulties in Louis' path. It was then in the
latter part of the month of September. The summer had been rainy
and unpleasant. The rains increased in September, and soon caused
an alarming rise in all the rivers. I was then at the end of my stay in
the little village of St. M——, where I lived unknown to the
Smithsons. Faithful to my request, Louis had told no one of my
temporary residence in the vicinity.
Excuse me for giving you here some topographical details, perhaps
somewhat difficult to comprehend, but necessary for you to know in
order to understand what follows.
St. M—— is situated in a charming valley. In ordinary weather, the
current of the Loire is below the level of the valley through which it
winds with a majestic sweep. When a rise occurs, the plain would at
once be inundated were it not protected by a dike which the water
cannot cross. This dike did not extend to Mr. Smithson's
manufactory, though but a short distance from St. M——. When,
therefore, the river got very high, the mill ran the risk of being
inundated. The dwelling-house alone was out of danger, being on an
eminence beyond the reach of the waters of the Loire, even when it
joined, swelled by the junction, the small stream that drove Mr.
Smithson's machinery.
Having given you some idea of that region, I will now resume my
story. One evening, then, towards the end of my stay at St. M——,
Louis told me the Loire was rising fast. He assured me, however,
before leaving, that there was no danger. "No matter how strong or
high the current," he said, "the dike secures you from all danger. It
is as firm as a rock."
My friend was mistaken. The bank had certain weak places which
the water had undermined without any one's being aware of it.
Towards eleven o'clock, there was a tremendous noise in every
direction. People were screaming and rushing around the house: the
dike had given way! The water had reached the ground floor. My
mother, my sister, and myself were lodged on the first story. The
proprietor, beside himself, and frightened enough to alarm every one
else, came up to tell us we must make haste to escape; his house
was not solid; we were in danger of being carried away.
"The water is only rising slowly," he said. "By wading two or three
hundred yards, we can reach the causeway. There we shall be safe;
for the ground is firm, and the causeway extends to St. Denis. The
inundation cannot reach that place, for it is built on a height."
I did not lose my presence of mind in the midst of the alarm. Victor's
death had destroyed all attachment to life. If my mother and sister
had not been in danger as well as myself, I should have remained
where I was, trusting in God, not believing I was under any moral
obligation to escape from a house which might withstand more than
was supposed; as it did, in fact. But my mother and sister lost all
reason, so to speak. Wild with terror, they fled, and I followed them.
When we got down to the ground floor, we found the water had
risen to the height of about six inches. There was a mournful sound
in every direction which made us tremble. We sprang towards the
causeway. I was at that time in delicate health. I had been suddenly
roused from sleep. The distance I had to wade through the cold
water had a fearful effect on me. When we reached the causeway,
they had to carry me to St. Denis: I was incapable of walking.
While we were thus flying from danger, Louis committed a series of
generous but imprudent acts which became a source of fresh
difficulties to him. He was sitting alone in his chamber, when, about
half-past ten, he heard a dull crash like a discharge of artillery at a
distance. He hastily ran down into the court, entered the porter's
lodge, and inquired where the noise came from that had alarmed
him.
"I do not know, monsieur," replied the man, "but I have an idea that
the levée has given way. At a great inundation twenty years ago, the
Loire made a large hole in the dike, which caused a similar noise. I
know something about it, for I was then living near...."
This was enough to alarm Louis, and just then a man passed with a
torch in his hand, crying breathlessly: "The dike has given way at St.
M——! Help! Quick! The village will be inundated!"
These words redoubled Louis' terror. St. M—— would be inundated;
perhaps it was already.... I was there ill, and knew no one!
"Is there any danger of the water's reaching us?" asked Louis of the
porter.
"The mill? Yes, ... but not Mr. Smithson's: that is impossible. The
house stands twenty feet above the river."
Eugénie and her parents, then, had nothing to fear. I alone was in
danger—in so great a danger that there was not a moment to be
lost.
"Go and tell Mr. Smithson all that has happened," said Louis. "I am
going away. I am obliged to. I shall be back in half an hour, or as
soon as I can."
Of all the sacrifices Louis ever made, this was the most heroic. In
fact, had he remained at his post, he might have saved the
machinery, that was quite a loss to Mr. Smithson. Instead of that, he
hurried off without any thought of the construction his enemies
might put on his departure. To complete the unfortunate
complication, Mr. Smithson had an attack of the gout that very day.
When I afterwards alluded to his imprudence in thus risking his
dearest interests, as well as life itself, Louis replied: "I knew Eugénie
had nothing to fear; whereas, you were in danger. I had promised
Victor on his death-bed to watch over you as he would himself. It
was my duty to do as I did. If it were to do over again, I should do
the same. Did Victor hesitate when he sprang into the water to save
me? And he did not know who I was."
The house I had just left was about half a league from the mill. The
water was beginning to reach the highway, though slowly. Louis kept
on, regardless of all danger, and arrived at our house in feverish
anxiety. I had been gone about fifteen minutes, and the water was
much higher than when we left. Louis learned from a man who
remained in a neighboring house that I was safe: we had all escaped
by the causeway before there was any danger. He added that I must
be at St. Denis by that time. Louis, reassured as to my fate,
succeeded in reaching another road, more elevated, but not so
direct to the mill. This road passed just above the Vinceneau house.
When Louis arrived opposite the house, he saw the water had
reached it. He heard screams mingled with oaths that came from the
father, angry with his wife and daughter. Having returned home a
few moments before, the drunken man was resisting the efforts of
both women to induce him to escape. Louis appeared as if sent by
Providence. He at once comprehended the state of affairs. His look
overawed the drunken man, who left the house. They all four
proceeded toward the mill. There was no nearer place of refuge. The
first people they saw at their arrival were Durand, Albert, and some
workmen. An insolent smile passed over Albert's face. He evidently
suspected Louis of having abandoned everything for the purpose of
saving Madeleine Vinceneau. But he did not dare say anything. Louis
intimidated him much more than he could have wished. He resolved,
however, to make a good use of what he had seen. Louis at once felt
how unfortunate this combination of circumstances was, but the
imminent danger they were in forced him to exertion. It was feared
the walls of the manufactory might give way under the action of the
water, if it got much higher, and it was gradually rising.
Louis set to work without any delay. The workmen, who had
hastened from every part of the neighborhood to take refuge at Mr.
Smithson's, began under his direction to remove the machinery that
was still accessible. They afterwards propped up the walls, and,
when these various arrangements were completed, Louis, who had
taken charge of everything, occupied himself in providing temporary
lodgings for the people driven out by the inundation.
Mme. Smithson and her daughter had come down to render
assistance. The refugees were lodged in various buildings on a level
with the house. Louis would have given everything he possessed for
the opportunity of exchanging a few words with Eugénie at once, in
order to forestall the odious suspicions Albert would be sure to
excite in her mind. But he was obliged to relinquish the hope. Mme.
Smithson and Albert followed her like a shadow. Louis could not
approach her without finding one or the other at her side. Overcome
by so fatiguing a night, he went towards morning to take a little
repose. He felt sure fresh mortifications awaited him in consequence
of what had just taken place, and he was right.
When he awoke after a few hours' sleep, his first care was to go and
see Mr. Smithson. He related what he had done, without concealing
the fact of his abandoning the mill to go to my assistance. Mr.
Smithson was suffering severely from the gout. He was impatient at
such a time to be on his feet, and was chafing with vexation.
"I cannot blame you, monsieur," he said. "The life of a friend is of
more consequence than anything else. Whatever be the material
loss I may have to endure at this time in consequence of your
absence, I forbear complaining. But it was unfortunate things should
happen so. If I had only been able to move!... But no.... You will
acknowledge, monsieur, that I am the victim of misfortune.... Did
you succeed, after all, in saving the person whose fate interested
you more than anything else?..."
"She had made her escape before my arrival. I hurried back, but, on
the way, a new incident occurred. An unfortunate family was on the
point of perishing. I brought them with me, as there was no nearer
asylum."
"Are these people employed at the mill?"
"The woman works here; her husband elsewhere."
"What is their name?"
"Vinceneau."
"I think I have heard of them. The father is a drunkard; the mother
is an indolent woman."
"You may have learned these facts from Mlle. Eugénie, who takes an
interest in the family, I believe. I recommended them to her."
"Was that proper?... I have every reason to think otherwise.... But it
is done. We will say no more about it. And since I am so
inopportunely confined to my bed, I must beg you to continue to
take charge in my place, watch over the safety of the inundated
buildings, provide for the wants of the people who have taken refuge
here, and, above all, have everything done in order."
Louis was uneasy and far from being satisfied. There was a certain
stiffness and ill-humor in Mr. Smithson's manner that made him think
Albert had reported his return to the mill with the Vinceneau family.
He attempted an explanation on this delicate subject.
"Mon Dieu! you seem very anxious about such a trifling affair," said
Mr. Smithson. "It appears to me there is something of much more
importance to be thought of now.... It is high time to try to remedy
the harm done last night...."
Louis felt that, willing or not, he must await a more propitious time.
He went away more depressed than ever.
The whole country around was inundated. I was obliged to send a
boat for news concerning my young friend, and give him information
about myself. The unfortunate people who had taken refuge at Mr.
Smithson's were at once housed and made as comfortable as
possible. It happened that Durand and some others were put in the
same building with the Vinceneau family. Nothing occurred the first
day worth relating. Louis watched in vain for an opportunity of
seeing and speaking to Eugénie. He only saw her at a distance. The
next morning—O unhoped-for happiness!—he met her on her way to
one of the houses occupied by the refugees. She looked at him so
coldly that he turned pale and his limbs almost gave way beneath
him. But Eugénie was not timid. She had sought this interview, and
was determined to attain her object.
"Whom have you put in that house?" she asked, pointing to the one
assigned to the Vinceneaus, which was not two steps from the small
building occupied by Louis himself.
"The Vinceneau family and some others," replied Louis.
At that name, Eugénie's lips contracted. An expression of displeasure
and contempt passed across her face. Then, looking at Louis with a
dignity that only rendered her the more beautiful, she said: "Then
you still have charge of them? I thought you gave them up to me."
"I have had nothing to do with them till within two days,
mademoiselle. It was enough to know you took an interest in their
condition." He then briefly related all that had taken place the night
of the inundation, and ended by speaking of the letter I had written
to relieve his anxiety. He finished by presenting the letter to Eugénie,
under the pretext of showing her the reproaches I addressed him. I
wrote him that, before troubling himself about me, he ought to have
been sure he was not needed at Mr. Smithson's.
Eugénie at first declined reading the letter. Then she took it with a
pleasure she endeavored to conceal. Before reading it, she said:
"Why did you not tell me your friend was at St. M——?"
"I have been greatly preoccupied for some time, and I seldom see
you, mademoiselle. It was in a manner impossible to tell you that my
poor friend had come here to be quiet and gain new strength in
solitude."
"I should have been pleased to see her." So saying, Eugénie, without
appearing to attach any importance to it, read my letter from
beginning to end.
Thus all Albert and Mme. Smithson's calculations were defeated.
There is no need of my telling you the inference Louis' enemies had
drawn from the interest he had manifested in the Vinceneau family.
"He left everything to save them, or rather, to save that girl," said
Mme. Smithson. "He would have let us all perish rather than not
save her."
My being at St. M——, and my letter, threw a very different light on
everything. Thenceforth, Louis, dismissed by her father, and
calumniated by her mother and Albert, was, in Eugénie's eyes, a
victim. And he had risked his own life to save that of his friend. It is
said that noble hearts, especially those of women, regard the rôle of
victim as an attractive one.
When Eugénie left Louis, there was in the expression of her eyes,
and in the tone of her voice, something so friendly and
compassionate that he felt happier than he had for a long time.... To
obtain this interview, Eugénie had been obliged to evade not only
her mother's active vigilance, but that of her cousin and Fanny. This
vigilance, suspended for a moment, became more active than ever
during the following days. It was impossible to speak to Louis; but
she saw him sometimes, and their eyes spoke intelligibly....
The water receded in the course of a week. Louis profited thereby to
come and see me, and make me a sharer in his joy. I was then
somewhat better. I passed the night of the inundation in fearful
suffering, but felt relieved the following day. My dreadful attack of
paralysis did not occur till some weeks afterwards. I little thought
then I had symptoms of the seizure that has rendered my life so
painful.
The refugees were still living at the manufactory, the Vinceneau
family among them. Louis had scarcely returned to his room that
night, when he heard a low knock at his door, and Madeleine
Vinceneau presented herself before him.
TO BE CONTINUED.
 THE NAPOLEONIC IDEA AND ITS
CONSEQUENCES.
FROM THE CIVILTA CATTOLICA.

I.

For several weeks past, we have heard much of Louis Napoleon

Bonaparte.[17] Nothing less than his mournful physical death, on the
9th of January, 1873, was needed to draw him from the oblivion to
which Italian liberals consigned him after his political death of
September 2, 1870. It would seem that from the imperial grave
opened at Chiselhurst went forth a bitter reproach against the
unexampled ingratitude of those who saw the tombstone of Sedan
close over his empire with mute impassibility and secret joy. Now to
the cowardly silence of two years succeeds an uproar of elegies and
praises. Remorse for having left the conqueror of Solferino in the
mire of the Meuse is lulled to sleep by the wailing of hired mourners;
as if the shame of basely forsaking him could be masked behind a
block of unblushing marble.
No man was ever more fatal to himself than Napoleon III. All which
was his by usurpation or right turned against him in the end. His
worst humiliations were the work of his own hands. He destroyed
himself, and the words of the Christian Demosthenes were truer of
him than of others: Nemo nisi a se ipso læditur.
Now, by a final mockery of fortune, he is punished after death by
having bier and tomb dishonored with the apotheosis of the Italian
party who laud to the skies the weapon that worked his ruin—the
ruling idea of his reign.
This idea, which necessarily failed because it was impracticable, and
in its failure reduced him to nothing, is his sole title to compassion or
glory in the opinion of this faction. But as the cruel irony contains a
historical lesson, useful for the present and the future, we will study
it by the light of facts, incontestable except to the blind.

II.

Such were the contradictions, perplexities, and duplicity of Louis

Napoleon Bonaparte upon the throne, that he was often believed to
be a prince reigning at hap-hazard. Indeed, it is said, now that he
has left the earth, that the history of his incomprehensible reign will
be the most difficult work ever undertaken. This seems to us a
mistake, if a distinction be made between the man and the prince,
his life and his reign. The man and his life will always seem
inextricable, for he used all means that suited his convenience, and
in their choice gave preference to no moral rule or principle of
honesty; following openly or hiddenly the mutable interest of each
day. But the prince and his reign, in spite of apparent contradictions,
are easily understood by the simple study of the political end which
he invariably proposed to himself.
This end is not hidden. His youthful writings, and the series of his
imperial documents, read by the light of the actions of his
administration, make it plain. He aimed at reestablishing and
consolidating in his dynasty the power of the First Empire, and at the
elevation of France to the headship of Europe, reorganized in its
territorial divisions according to the law of nationality, and in its
institutions in accordance with the forms of Cæsarean democracy.
An author who has read his books, and confronted them with the
achievements of his reign, thus sums up the new Napoleonic idea
constantly pursued by Louis in his youth, middle life, and old age, in
exile, in prison, and on the throne:
"Peoples distributed according to their needs and instincts, belonging
each to a self-elected country, provided each with a constitution
fixed yet democratic; devoted at their choice to works of civil
industry destined to transform the world; Europe, free in her various
nations, consolidated almost into a federated republic, with France
as its centre; France aggrandized and forming the clasp in the strong
chain of free intercourse; universal exhibitions to encourage nations
in the exchange of reciprocal visits; European congresses, where
governments, laying aside arms, could compose their differences;
Paris, the imperial city par excellence, wonderfully embellished,
raised to the honors of capital of the world, metropolis of wealth and
wisdom, under the wing of the Napoleonic eagle, offering to the two
hemispheres the rarest discoveries in science, masterpieces of art,
exquisite refinements of luxury and civilization."[18]
Divisum imperium cum Jove Cæsar habet!
Such was the intoxicating dream of the life and reign of Napoleon
III., the idea which he believed himself created to carry out—a
combination of the designs of Henry IV. and the aspirations of
Augustus, mounted on the frail pedestal of the principles of 1789.
In fact, proceeds our author, "Within and without the confines of the
Empire, this idea was reduced to two words: reconstruction and
reconciliation, based upon the principles of the French Revolution.
Here was to be the general synthesis of all external and internal
politics in France and Europe: Reconstruction of nations founded on
national will within and without; effected by a single instrument—
universal suffrage—applied to the determination of the nationality as
well as of the sovereign and the government; reconciliation of
nations among themselves, and of the divers classes composing
them, thanks to an equal satisfaction of the rights and interests of
all."[19]
That nothing might be wanting to the enchantment of his fair
dream, the young prisoner of Ham contemplated a double mission of
giving peace and glory to France. "War was to consolidate peace,
imperial battles were to give repose to the world. Thus the famous
device, The Empire and Peace, came to bear a sublime significance."
[20]

In short, the Napoleonic idea had for its ultimate aim the
aggrandizement and European omnipotence of France under the
dynasty of the Bonapartes, through the universal means of popular
suffrage with plébiscites, forming a basis of a new national and
international right, opposed to the old historical right of peoples. The
other three principles of territorial compensation, non-intervention
and accomplished facts, were special means and passing aids to be
used according to opportunity for carrying out intentions.

III.

Louis Napoleon received his political education from his uncle exiled
in the Island of St. Helena, and from the Carbonari, among whom
Ciro Menotti enrolled him in Tuscany, in the year 1831.[21] In these
two schools he acquired the fundamental idea of reconstructing
European countries according to nationality. But he did not see that,
in the hands of Napoleon I. and of the Carbonari, this idea was a
strong weapon of destruction, not a practical or powerful argument
for reconstruction. Bonaparte, gaoler of European potentates, and
the Carbonari, persecuted by them, wished to use it to destroy the
order of things established by the Holy Alliance in the treaty of
Vienna of 1815, upon the right, more or less defined, of legitimacy.
On the pretext of restoring political nationality to peoples, the first
Napoleon bequeathed to his heirs the command to excite Italy and
Hungary against Austria; Poland against Russia and Prussia; Greece
and the Christian principalities against Turkey; Ireland, Malta, and
the Ionian Isles against England; hoping that the changes originating
in this movement, and the gratitude of these nations, would make
easy to his heirs the extension of French boundaries and the
recovery of the imperial crown.
The Carbonari worked with the same pretext to overthrow princes
and substitute themselves, with a view of introducing into states
their anti-Christian and anti-social systems.
The so-called principle of nationality resolved itself, then, with
Napoleon I. and the Carbonari, into a pure engine of war—into a
battery which, after destroying the bulwarks of the opposite principle
of legitimacy, should give into their hands nations and kingdoms.
That Louis Napoleon, in prison, a fugitive, a conspirator, should
support himself with this flattering principle, and dexterously dazzle
with it the eyes of those who could help him to recover the sceptre
of France, can be easily understood; but that, after obtaining this
sceptre by a network of circumstances wholly foreign to the principle
of nationality, he should adopt that principle as the final aim of his
empire and the corner-stone of his own greatness and of French
power—this, in truth, is hard to understand.
But that it was the case is only too clear. He spent the twenty years
of his dominion over France in coloring the design which he had
puzzled out twenty years before, dreaming over the memories of St.
Helena, and plotting in the collieries of the Carbonari.

IV.

To a sagacious mind which had well weighed the true worth of the
Napoleonic idea, even before the new emperor attempted its
fulfilment, terrible dangers and obstacles must have presented
themselves.
After a succession of wars and successful conspiracies had led
nations to an independent reconstruction within natural frontiers,
what increase of territory could have accrued to France?
Suppose Italy, Poland, Hungary, and Iberia adjusted on this
principle, would their power have remained so equalized as to leave
France secure of preponderance?
If Germany had been so reconstructed, to the certain advantage of
Prussia, was there not a risk of exposing France to a shock which
might have proved fatal?
According to the theory of natural limits, the aggrandizement which
France could have demanded in compensation for protection and
successful warfare would have been reduced to some additions
towards the Alps, the Pyrenees, and in Flanders; to a few thousand
square kilometres, and perhaps three or four millions of inhabitants.
Towards the Rhine, we cannot see what the Empire could have
claimed without contradicting the theory itself. Germany has
maintained that Alsace and half of Lorraine, incorporated with
French soil, are German, and has forced them to a legal annexation
to her territory. Now, were these slender acquisitions, so
disproportioned to the acquisitions of neighboring countries, worth
the cost of turning Europe upside down, and subjecting France to a
chance of political and military ruin?
Louis Napoleon rejoiced in the thought of one day resuscitating the
fair name of Italy, extinguished for many years, and restoring it to
provinces so long deprived of it. This sounds well; but was this
resurrection to end in a united kingdom, or in the simple
emancipation from foreign rule? And granted that unity could not be
prevented, and that it should prove equal to the imaginary union of
Spain and Portugal, was it really advantageous to create alongside of
France, from a platonic love of nationality, two new states of twenty-
five millions of souls each, capable of supplanting her later in the
Mediterranean.[22] And if Prussia, taking advantage of the loss of
Italy and Hungary to her rival Austria, had united in a single political
and military body the scattered members of Germany, would it have
been useful and hopeful for France to feel herself pressed on the
other side by a kingdom or empire of fifty millions of inhabitants, a
military race of the first order?
Moreover, what would have become of the Roman Pontiff in this
renovation of countries, governments, and juridical laws. The Pope is
a great moral power, the greatest in the world. If his independence
were to give way before the principle of nationality, what would
become of his religious liberty, so necessary to the public quiet of
consciences. Could a pope, subject to an Italy constructed in any
way soever, increase the light, peace, and tranquillity of France and
the rest of Europe? Would the palace of the Vatican, changed into a
prison, have accorded with the imagined splendors of the Tuileries?
Finally, a new international and national right, which should have
sanctioned, in accordance with popular suffrage, the obligation of
non-intervention and accomplished facts, far from reconciling nations
and various classes of citizens among themselves by superseding the
inalienable right of nature, would have become a firebrand of civil
discord, an incentive to foreign wars, and a germ of revolutions
which would have plunged Europe into the horrors of socialism.
An eagle eye was not needed to see and foresee these weighty
dangers. However affairs might have turned, even if they had
succeeded according to every wish, it is indubitable that the ship of
Napoleonic politics, following in its navigation the star of this idea,
must eventually have struck on three rocks, each one hard enough
to send ship and pilot to the bottom: the Papacy, Germany, and
Revolution. The Papacy, oppressed by the Italy of the Carbonari,
would have taken from France her greatest moral force. Germany, in
one way or another, strongly united in her armies, would have tried,
as in 1813, to overwhelm the Empire. Revolution, kindled and fed
from without, would have gathered strength in France to the ruin of
the Empire.
These rocks were not only visible, but palpable to touch. Napoleon
III. saw them, felt them, and used all the licit and illicit arts of his
administration to avoid them. In vain; it was impossible. He should
not have followed the guidance of his enchantress, his idea;
following it, perdition was inevitable.

V.

Perhaps history offers no other example of a man who has grasped

the sceptre under conditions so propitious for good and so opposed
to evil as those under which Louis Napoleon Bonaparte began his
reign; or of one who has so pertinaciously abused his advantages to
his own ruin and that of others.
The vote of the better and larger portion of the French nation had
raised him to the throne, that he might save them from the hydra of
socialism, and stop the course of political changes in France. Europe,
just recovering from terrible agitations, welcomed his elevation as a
pledge of order and peace. Catholics of every country rejoiced over
it almost as the reward of the uncontested restoration in Rome of
the principality of S. Peter. Interest and conscience seemed to unite
in inducing him to take the triumphal road of justice which must lead
to certain glory.
But cum in honore esset non intellexit.[23] He seemed to wish to
take this path. But, in fact, he showed that he was preparing to
follow another by the ephemeral light of that idea which he
worshipped on the imperial throne with the same devotion which he
had professed in prison and in exile.
The Crimean war, to a participation in which he invited little
Piedmont, predestined by him to enjoy the benefits of Italian
resurrection, helped him to cut the knot of the Holy Alliance, to
humble Russia and set her at enmity with Austria, to create by a
plébiscite the first of his national unities—that of the Roumanian
Principalities—and to introduce at the Congress of Paris that
subalpine diplomacy which, endorsed by him, sowed the seeds of
the contemplated Italian war.
Meanwhile, the daggers and bombs of the Pianori, Tibaldi, and Orsini
came to remind him that, before being Emperor of the French, he
had been an Italian Carbonaro, and that he was expected to keep
his oaths. It is said that, after the explosion of Orsini's bombshell, a
friend of the assassin, to whom Napoleon complained confidentially
of this party persecution, replied: "You have forgotten that you are
an Italian."
"What shall I do?" asked his majesty.
"Serve your country."
"Very good. But I am Emperor of the French, a nation hard to
govern. Can I sacrifice the interests of my people to accommodate
those of Italy?"
"No one will prevent you from studying the interests of France when
you have promulgated the independence and secured the unity of
your country. Italy first of all."[24]
But he had less need of spurring than was supposed.
After the secret negotiations of Plombières, he attacked Austria in
the plains of Lombardy, and, having subdued her, he inaugurated the
resurrection of Italy according to his idea, which, presiding over the
work, showed itself unveiled, with all the magnificence of territorial
compensation, universal suffrage, non-intervention, and
accomplished facts, as we all know.

VI.

But the Napoleonic ship got lost irreparably among the three rocks
above named. Between the Mincio and the Adige it met Germany in
threatening guise; in Rome, the betrayed pontiff rose up; and in
Paris revolution lifted her savage head. For eleven years Bonaparte
struggled to save the ship from the straits into which his Italian
enterprise had driven it; but the more earnest his efforts, the worse
became the entanglement, until the tempest of 1870 split the vessel
in the midst with awful shipwreck.
His crimes towards the Pope, the ignoble artifice of insults couched
in reverential terms, of perfidy, lies, and hypocrisy, alienated from
him not only Catholics, but all those who honored human loyalty and
natural probity. The so-called Roman question, a compendium of the
whole Italian question, ruined the credit of Napoleon III., unmasked
him, and made him appear as inexorable history will show him to
posterity—a monster of immorality, to use the apt expression of one
of his former sycophants.[25]
Prussia, after checking him at the Mincio in 1859, cut short in his
hands the thread of the web woven in 1863 to regenerate Poland on
the plan of Italy. God did not permit a good and noble cause like
that of Poland to be contaminated by the influence of the Napoleonic
idea; and this seems to us an indication that he reserves to her a
restoration worthy of herself and of her faith. Prussia also held him
at bay during the Danish war, into which he threw himself with
closed eyes, in the mad hope of conquering Mexico, and making it
an empire after his own idea. This whim cost France a lake of blood,
many millions of francs, and an indelible stain; it cost the
unfortunate Maximilian of Austria his life, and his gifted wife her
reason. Prussia solemnly mocked at him in the other war of 1866,
when, leagued with Italy by his consent, she attacked the Austrian
Empire.
It was the beginning of that political and military unity of Germany
which was destined to make him pay dear for the work of unity
accomplished beyond the Alps by so many crimes.[26]
Lastly, Prussia, choosing the occasion of the vacancy of the Spanish
throne, and seconded by him in the promotion of an Iberian unity
like that of Italy, and prepared by a subalpine marriage, drew him
into the toils where he left his crown and his honor.
Step by step with the barriers opposed by Prussia to the foolish
policy of Napoleon III. in Europe went the anxieties caused in the
empire by revolution. Losing gradually the support of the honest
Catholic plurality of the French, he thought to reinforce himself by
flattering his enemy, demagogism, and by unchaining gradually
passions irreligious, anarchical, destructive to civilization. Taking all
restraint from the press, he removed every bar to theatrical license,
gave unchecked liberty to villany, free course to nefarious impiety
and a Babylonish libertinism, and finished by opening the doors to
public schools of socialism. But as outside France his duplicity and
cowardly frauds had drawn upon him the hatred and contempt of
accomplices and beneficiaries, so at home they excited discontent
and distrust among all parties.
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