Melachim uMilchamot - Chapter 6

These terms are explained in the beginning of the previous chapter.
The Sifri, Shoftim, and similarly, Rashi’s commentary to this verse, maintain that we are only obligated to oft. er a peaceful settlement in a milchemet hareshut, not in a milchemet mitzvah. (It must be noted that in Sefer HaMitzvot, ibid., the Rambam himself accepts this view.)
Support for the Rambam’s statements here can be derived from the Midrash Tanchumah, Tzav. Similarly, the passage from the Jerusalem Talmud (Shivi’it 6:1) quoted by the Rambam in Halachah 5 reinforces this statement.

The obligation to offer a peaceful settlement to these nations can be derived from the offer Moses extended to Sichon, king of the Amorites, one of the seven nations (Numbers 21:21-22).

Sefer HaMitzvot (positive commandment 190) and Sefer HaChinuch (mitzvah 527) include this as one of the 613 mitzvot of the Torah.

The Ra’avad maintains that in a milchemet hareshut, it is not necessary for the gentiles to accept these commands. We are only required to include these commandments in the peaceful settlement offered to Amalek and the seven nations. (In Sefer HaMitzvot, ibid., the Rambam also does not mention the seven mitzvot.) In his commentary to the Torah (Deuteronomy, loc. cit.), the Ramban explains that it was not necessary for the gentiles living outside of Eretz Yisrael to accept the seven mitzvot for there is no way that their behavior would influence that of the Jewish people.
In contrast, the Rambam maintains that once these lands are conquered they become part of Eretz Yisrael. Thus, the possibility exists that Jews would settle in these countries and learn from the gentiles’ behavior. Furthermore, as will be explained in Halachah 8:10, the Rambam considers acceptance of the seven mitzvot of vital importance to the gentiles regardless of the consequences to the Jews.

On the contrary, it is forbidden to do so as explained in Halachah 3.

In Hilchot A vodat Kochavim 10:1, the Rambam also mentions that we are prohibited against entering into a covenant with gentiles unless they abandon idol worship. However, there, he does not mention the need for subjugation.
The two statements need not be considered contradictory. Hilchot Avodat Kochavim may refer to a covenant made in peacetime and thus, subjugation is not required. Here, we are dealing with a situation of war. Therefore, peace should not be granted until the enemy agrees to servitude.

Sifri, Shoftim notes that the verse requires “They shall be your subjects” - i.e., subjugation, and “serve you” - i.e., pay tribute.

Many commentaries point to Joshua’s treatment of the Gibeonites (Joshua 9:23) as the source for these principles. He forced them to be “bondmen, hewers of wood, and drawers of water forever.” They were always kept in this secondary status.
Nevertheless, other commentaries differentiate; noting that the Gibeonites accepted Torah and mitzvot and thus, were included as part of the Jewish people, while these principles deal with gentiles accepting the seven mitzvot of Noah’s sons.

As explained in Halachah 2.

I.e., they could be compelled to perform manual labor.

The Ramban (Deuteronomy, loc. cit.) explains that these Amorites accepted the seven mitzvot. Hence, Solomon did not violate the commandment to destroy the seven Canaanite nations by allowing them to live and serve in these capacities.

As mentioned in Chapter 4, Halachot 2-3, that the king has the right to conscript his subjects for these duties.

In Chapter 4, Halachah 9, the Rambam stated that the army may take spoil from the countries they conquer. Halachah 10 explains that the king is entitled to all the landed property of the nations that he conquers and may do with it as he desires.

To do so would cause Chillul HaShem, the desecration of God’s name.

As explained in Halachah 5, Joshua made a covenant with the Gibeonites as part of his conquest of Eretz Yisrael.
While pursuing King David, King Saul slew an entire village of Gibeonites. Later, they sought revenge on his sons. God told King David to agree to their request and they were allowed to kill seven of Saul’s descendants. (See I Samuel 22:19, II Samuel 21:1-10.)
Why were they allowed to slay these blameless individuals? So that the gentile nations would not think the Jews broke their covenant with this people (Yevamot 79a).
Later on in our national history, we see other examples of the consequences of breaking a covenant made with other nations. Hoshea ben Elah was the final king of the kingdom of Israel. He was more righteous than all of his predecessors, yet the ten tribes were exiled in his day. 11 Kings (17:4) relates that the direct cause of this tragedy was Hoshea’s failure to observe a pact which he made with Shalmanessar, king of Assyria.
Similarly, II Chronicles (36:13) explains that Tzedekiah, Judah’s final king, broke an oath he made to Nebuchadnezzar and rebelled against him. What were the consequences? Nebuchadnezzar conquered Jerusalem, destroyed the Temple, and exiled our people from our land.

Deuteronomy 20:12 relates: “If they do not accept your offer of peace, you shall lay siege [to the city.]”

As mentioned above, in a milchemet hareshut, many authorities do not require the acceptance of the seven mitzvot.

As Deuteronomy continues (20:13) “When God... gives it into your hand, strike down all its males by the sword.”

As the passage continues (20:14) “the women, children, animals, and all the goods in the city, you shall take as spoil.”

Though in the war against Midian, all women above the age of three and all males even those below majority were slain (Numbers 31:17-18), that war had a specific intent: to “avenge the vengeance of the children of Israel” (Numbers 31:1). Accordingly, the strictures against slaying captives were relaxed to execute this vengeance.

To refer to the Biblical wording, “the cities that... are not the cities of these nations,” i.e. countries outside of Eretz Yisrael.

As mentioned in Chapter 5, Halachah 4, the annihilation of these nations fulfills one of the Torah’s 613 mitzvot.

The status of Amalek differs from that of the seven nations. The mitzvah to destroy the seven nations was instituted “so that they will not teach you the revolting practices with which they worship their gods...” (Deuteronomy 20:18). Accordingly, once they abandoned those practices, there is no reason to slay them (Sotah 35b).
In contrast, the mitzvah to “obliterate the memory of Amalek” was instituted as retribution for Amalek’s attack on the Jewish people “on the way after leaving Egypt” (Deuteronomy 25:17). Therefore, the Mechiltah, Beshalach, and other sources maintain that we are obligated to slay Amalek’s descendants regardless of their present state. On that basis, they explain King David’s execution of the Amalekite convert who brought him word of King Saul’s death (II Samuel 1:13-15). Nevertheless, the Rambam obviously does not accept this view.

And also the observance of the seven mitzvot.

The following verses come at the conclusion of the description of the great wars Joshua fought to conquer Eretz Yisrael.

See the following Halachah and commentary.

31 kings as described in Joshua, Chapter 12.

See Hilchot Teshuvah, Chapter 6.

Thus, all traces of them and-their repulsive idol worship would be obliterated.

Had the Canaanites not been given the opportunity to choose peace, there would be no need for God to strengthen their hearts to engage in battle. They would not have had an alternative.

The letters were sent in the thirty three day period between the death of Moses on the seventh of Adar and the crossing of the Jordan on the tenth of Nisan.

The Girgishites feared God and followed this advice. God rewarded them by giving them a fine portion of land in Africa (Jerusalem Talmud, Shivi’it 6:1).

The Radbaz explains that there was no time for Joshua to wait for a reply to his first message before he sent the second. Rather, all three messages were sent at the same time.

As explained in the previous Halachah.

It is difficult to understand the reason for this rather obvious message.

Joshua, Chapter 9, relates that after the Jews’ conquest of Jericho and Ai, the inhabitants of Gibeon: Acted cunningly... They took old sacks upon their donkeys, old and rent wine bottles... old, worn and patched shoes... and came to Joshua at Gilgal. They told him:..."We have come from a distant country. Therefore, make a covenant with us.” Joshua made a covenant with them... and the princes of the congregation swore to them.

As explained in the beginning of the halachah.

The Ra’avad disagrees with the Rambam and explains that once the Jews crossed the Jordan, the Canaanites could no longer agree to a peaceful settlement. However, most authorities reject this view. Since the mitzvah to destroy the seven nations was instituted “so that they will not teach you the revolting practices with which they worship their gods...,” there is no reason to differentiate between when their commitment would be made.
Further support for the Rambam’s opinion can be brought from Avodah Zarah 24b which states Arvana, the Jebusite from whom King David bought the Temple site, was a Canaanite who had accepted the seven mitzvot. Thus, it appears that even after the Jews’ entry into Eretz Yisrael, the Canaanites could have avoided being slain by accepting peace and observance.

As the narrative in Joshua continues (ibid.:18-19): "All the congregation murmured against the princes, but all the princes said to the entire congregation:We have sworn to them by God... therefore, we may not touch them.'"

The Ramban (Deuteronomy 20:11) disagrees with the Rambam and maintains that it was permissible to establish a covenant with the Gibeonites because they had already accepted the belief in God. However, the Jews’ first reply to the Gibeonites “Perhaps, you dwell among us? If so, how shall we make a covenant with you?” appears to reinforce the Rambam’s view that all covenants with the Canaanites were forbidden even though they disavowed the worship of idols.

Rather than accepted as equals as implied by the covenant they made.

Avodah Zarah 46a explains that since the oath was taken under false premises, it was not binding. Nevertheless, the surrounding nations would think that the Jews had broken their oath. Thus, were the oath to be ignored, God’s name, on which it was made, would be dishonored.

Sefer HaMitzvot (negative commandment 56) and Sefer HaChinuch (mitzvah 562) include this as one of the Torah’s 613 mitzvot.
The prohibition was instituted as punishment for Ammon and Moav’s lack of sensitivity to the Jews in their time of distress. While they were journeying to Eretz Yisrael, these nations “did not greet them with bread and water” (Deuteronomy 23:5).

Sifri, commenting on that verse.

While it is forbidden to make an overture of peace towards either Ammon or Moav, we may repay their kindness to us. Therefore, King David extended consolation to Chanon, King of Ammon after the death of his father, because the latter had protected David’s family. See 11 Samuel, Chapter 10.
Nevertheless, even though that gesture was permitted, it did not find favor in God’s eyes. He declared: “Whoever shows them mercy will ultimately be shamed.”
What resulted from David’s kindness? Chanon ridiculed his emissaries in public. As a consequence, Israel became engrossed in a fierce war (BaMidbar Rabbah 21:5).

This verse applies to a fugitive slave and by extension, to any gentile who is willing to accept the seven mitzvot.

The Minchat Chinuch 562 explains that even after conversion an Ammonite or Moabite may not dwell in Eretz Yisrael.

As the Rambam writes in Hilchot Issurei Bi’ah 12:25, after conquering most of the civilized world, Sannecherib engaged in a process of mass population transfer causing all of Israel’s neighbors to lose their national identity. Thus, there are no longer any nations or individuals who can be designated as descending from Ammon or Moav.

The source for the Rambam’s statement appears to be the above verse which forbids “seeking their peace” and does not mention responding to their offer (Minchat Chinuch, loc.cit.).

The Ramban in his hosafot to Sefer HaMitzvot (positive commandments 5) considers this obligation as one of the 613 mitzvot of the Torah.

The Radbaz states that only in a milchemet hareshut should a place be left for the enemy to flee. In a milchemet mitzvah, no leniency of this nature should be made. The Ramban (loc. cit.) and the Sefer HaChinuch (mitzvah 527) also accept this opinion.
The Minchat Chinuch questions this view, asking how such a concept can be derived from the Rambam’s wording. The Toldot Adam in his commentary on the Sifri explains the rationale for both opinions. According to the first view, this practice is a gesture of peace and mercy required by the Torah.
In contrast, the second view could explain that this practice was instituted for the benefit of the Jews. Were the gentiles to realize that they have no opportunity to flee, they would fight with greater savagery, as a desperate man who has no other alternative to save his life. (See also Meshach Chochmah on the verse from Numbers.)

The verse also supports the latter opinion for the war against Midian was a milchemet mitzvah fought with the intent of slaughtering that nation.

See Sifri; Yalkut Shimoni.

The laws applying to other trees are explained in the following halachah.

The verse from Deuteronomy begins “When you lay siege to a city.” Thus, the trees in question are those growing in the orchards outside the city.

For this will also destroy the trees (Sifri).

The Sefer HaMitzvot (negative commandment 57) and the Sefer HaChinuch (mitzvah 529) include this as one of the Torah’s 613 mitzvot. See the Turei Zahav (Yoreh De’ah 116:6) which questions why the Tur and the Shulchan Aruch do not cite this law.

As appropriate for the violation of a negative commandment.

In this instance, the rationale behind the mitzvah defines one’s interpretation of the halachah. The Ramban explains that this prohibition only applies while besieging a city. For our troops can use the trees for food or we might ultimately desire to settle in the land and benefit from the fruit. However, when our forces leave the land, they may cut down fruit trees without reservation to destroy the land.
In contrast, the Sefer HaChinuch explains that the purpose of this prohibition is “to love good and benefit and to cling to them... and to separate ourselves from all evil and destruction.” Accordingly, the prohibition would also apply to property which belongs to gentiles.

This applies even to one’s own trees. Bava Kama 92a relates that Shmuel had a date palm growing among his grape-vines which detracted from the taste of the wine they produced. Hence, he ordered his farmers to remove it.

Bava Batra 25b, 26a prohibits planting trees next to one’s neighbor’s field or well, lest the tree’s roots destroy them. Moreover, if trees were planted too closely at the outset, one may later uproot them.

I.e., it would be more valuable to sell it as wood than to harvest its fruit. The Radbaz maintains that this license is only granted for an older tree that is not producing its full capacity.

The above mentioned passage continues (Deuteronomy, loc. cit.:20): “However, if you know that a tree does not produce food, you may destroy the tree.”

The intent of this phrase is obviously not to permit wanton destruction. As mentioned in the following halachah, the prohibition against wanton destruction (bal tashchit) applies to all articles of value. Rather, the intent is that, with regard to non-fruit bearing trees, greater leniency can be taken than with regard to fruit trees and the restrictions mentioned in the previous halachah need not be heeded.

Bava Kama 91a explains that even without the words “if you know” in the verse quoted above it could be understood that it is permissible to cut down non-fruit bearing trees. Hence, that phrase was included with the intention of teaching a further concept; i.e., that the prohibition against cutting down fruit bearing trees only applies when it is worthwhile for their owner to maintain them. This, however, is not considered the exegesis of the verse to the extent that the concept is included in the Scriptural command. Instead, it is merely an allusion (an asmachta).

A kav is approximately 52 ounces in modern measure. Olives were very expensive and the trees require little care. Hence, it is worthwhile to maintain the tree despite this small yield.

These are not rigid rules, but rather, figures that can fluctuate depending on the price of fruit and cost of maintaining a tree.

Shabbat 129a relates that certain Sages would suffer severe chills after letting blood. For lack of any other fuel, they used expensive furniture as firewood. The passage continues: “Doesn’t this violate the command ‘Do not destroy’?” and explains that since the fire was used for the Sages’ physical comfort, no prohibition is involved.

Kiddushin 32a relates that Rav Huna tore a valuable garment in front of his son to see whether the latter would lose his temper or not. Afterwards, the Sages question that statement for such an act appears to violate the prohibition under discussion. They resolve the difficulty by explaining that he ripped the garment on the seams and thus, nothing was destroyed.

II Kings 3:19 relates that Elisha, the prophet, instructed King Jehoram in his battle against Moav: “Destroy every good tree, stop up every stream of water, and fill every good field with stones.” Bamidbar Rabbah 21:6 notes that such advice appears to violate the prohibition “Do not destroy” and explains that an exception is made regarding Ammon and Moav for they are lowly nations whose welfare may not be sought (see Halachah 6 above).
The commentaries explain that the prohibition applies to each element of Elisha’s advice independently and quote this passage as the source for the inclusion of this phase in our halachah.

Shabbat 140b mentions an opinion that views eating and drinking expensive foods instead of cheaper ones as a violation of the prohibition “Do not destroy.” The Talmud does not accept this opinion, explaining that such activities are not forbidden since one’s physical pleasure is involved. Nevertheless, the fact such an issue could be raised demonstrates that the prohibition also applies to wasting food.

As mentioned in the previous halachah, no prohibition is involved if there is a positive reason for the deed.
Shabbat 105b compares the destruction of useful objects in a fit of anger to the worship of idols.

Lashing is only given as punishment for violation of a Biblical command. The extension of the scope of this prohibition to all things is Rabbinic in origin. Hence, lashes are not administered for its transgression. Rather, he receives “stripes for rebellious conduct,” [as instituted by] the Rabbis.
This decision represents a reversal of the Rambam’s statements in Sefer HaMitzvot (ibid.). There, he explained that lashes are given for the destruction of other valuable articles besides trees.

Lashes are only given as punishment for violation of a Biblical command. The extension of the scope of this prohibition to all things is Rabbinic in origin. Hence, lashes are not administered for its transgression. Rather, a violator receives "stripes for rebellious conduct," as instituted by the Rabbis.
This decision represents a reversal of the Rambam’s statements in Sefer HaMitzvot (ibid.). There, he explained that lashes are given for the destruction of other valuable articles besides trees.

As given for the violation of a Rabbinic decree. In contrast to the Biblically ordained punishment of thirty-nine lashes for the violation of a Torah command, the extent of punishment for stripes for rebellious conduct is left to the discretion of the court. Their decision is based upon the severity of the violation, the character of the transgressor, and the circumstances involved.

Hilchot Shabbat 30:13 states that this prohibition was instituted “so that the soldiers’ minds will be settled and they will not be agitated and overly preoccupied on the Sabbath.”
Pikuach Nefesh, threat to life, overrides the observance of the Sabbath prohibitions. Hence, battle is permitted on Sabbath. However, to whatever degree possible, an attempt must be made to preserve the Sabbath atmosphere. Hence, by beginning the siege well before the Sabbath, the tension and frenzied activity which usually accompany the first days of a siege will not disturb the Sabbath.

Once a siege was begun before the Sabbath, fighting may be continued on the Sabbath. Our Sages relate that during the Maccabean revolt, the Greeks mounted an attack on the Sabbath. Unaware of the leniency allowing them to fight, our people refused to take up their arms. Thousands fell.

Shabbat 19a; see Hilchot Shabbat, the conclusion of Chapter 2.

Hilchot Shabbat 2:25 relates that Joshua conquered Jericho on the Sabbath.

Commenting on Hilchot Shabbat (ibid.), both the Kessef Mishneh and the Lechem Mishneh maintain that this clause refers to the previous statement “We may engage in battle... even on the Sabbath,” informing us that fighting may be continued in a milchemet hareshut on the Sabbath. However, the first statement of the halachah requiring us to begin the siege of a city three days before Sabbath, only holds true for a milchemet hareshut. In a milchemet mitzvah, a siege may be begun before the Sabbath.
Though that statement is not accepted by all opinions, all agree that a defensive war may be begun on the Sabbath. See Hilchot Shabbat 2:23, Shulchan Aruch, Orach Chayim 329:6.

The owner of the property cannot protest against the encampment.

The Radbaz explains that this law also applies to a soldier who died a natural death.

This law was instituted to prevent the owner of the property from protesting against the burial of a corpse on his land. Even though the departed’s relatives could bury them elsewhere, the army may bury the corpses where they fall rather than carry them with them. However, it is questionable whether there is an obligation to bury them there.

The term meit mitzvah means a corpse which it is a mitzvah for its discover to bury. Hilchot Evel 3:8 states: “What is a meit mitzvah? A Jewish corpse cast away on the road without anyone to bury it.”
When Joshua divided Eretz Yisrael among the tribes, he established ten conditions governing the land and its use. Among them was the provision that a meit mitzvah could be buried wherever he is found. There is no obligation to carry his body to a cemetery (Hilchot Nizkei Mammon 5:3).

This applies to a milchemet hareshut as well as a milchemet mitzvah (Rambam, Commentary on the Mishnah, Eruvin 1:10).

Demai refers to produce purchased from a common person. Our Sages were unsure whether such an individual would separate tithes properly. Hence, they required that Terumat Ma’aser and Ma’aser Sheni be separated by the purchaser of the produce. (See Hilchot Ma’aser 9:1-3.) There was no obligation to observe this stringency in an army camp.

In his Commentary on the Mishnah, loc. cit., the Rambam writes “There is no obligation to search for water.” Seemingly, implying that if water is available, one is obligated to wash before eating. In this halachah (and similarly, in Hilchot Berachot 6:3) no such differentiation is made.

One of Joshua’s ten conditions governing the use of land in Eretz Yisrael was that a person was allowed to gather thorns and shrubs from anyone else’s field for use as firewood (Hilchot Nizkei Mammon, loc. cit.). Here, license is granted to take wood of a more substantial nature (Eruvin 17a)

Even though it is private property.

An act which obviously implies that it had been prepared by its owner for his personal use

The Jerusalem Talmud (Eruvin 1:10) allows this leniency only in a milchemet mitzvah and not in a milchemet hareshut. However, the Babylonian Talmud - and, hence, the Rambam - does not distinguish between the two.

According to Scriptural Law, though it is forbidden to carry in the public domain, there is no prohibition against carrying in a semi-public area, for example a courtyard. Nevertheless, to safeguard the Torah’s prohibition, the Sages also forbade carrying in these areas. However, together with their prohibition, they granted a leniency, eruv chatzeirot, which would allow carrying in such areas.
To establish an eruv chatzeirot, a group of families must fence off the area in which they desire to carry with a barrier and prepare food in a centralized location. Afterwards, they may carry within the fenced off region. See Hilchot Eruvin, Chapter 1. The Sages allowed soldiers in an army camp to rely on the Torah law itself and did not require an eruv.

If the camp is surrounded by a barrier, the prohibition is only Rabbinic in nature and hence, is relaxed for the soldiers. However, if there is no barrier, carrying violates a prohibition of the Torah itself and is only permitted if there is a danger to life.
Similarly, no leniency is shown regarding eruv techumim for that prohibition has its source in the Torah itself (Kessef Mishneh).

Hilchot Shabbat 16:1.

A barrier of lesser height is not significant.
Manuscripts of the Mishneh Torah brought from Yemen read here: “An army camp is comprised of a minimum of ten [soldiers].” A lesser amount of soldiers are not granted these leniencies.

There is a certain amount of danger even when an army returns for at any moment they may be attacked by the enemy.

Berachot 25a explains that the prohibition also includes urination. However, most Halachic authorities do not take notice of that statement.

The Sefer HaMitzvot (positive commandment 192) and the Sefer HaChinuch (mitzvah 566) include this as one of the Torah’s 613 mitzvot.

The reason for this command is mentioned in the following halachah, so that “your camp shall be holy.”

The Sefer HaMitzvot (positive commandment 193) and the Sefer HaChinuch (mitzvah 567) include this as one of the Torah’s 613 mitzvot. However, the Sefer Mitzvot Gadol counts this and the previous command as one mitzvah..

The Torah uses the word yetaid which is usually rendered as “spike.” However, in this instance, the Septuagint translates the term as “trowel.”

Those mentioned in this and the previous halachah.

Yoma 75b states: “Until the Jews complained about the manna (Numbers 21), it would be totally absorbed by their systems without producing any waste. God declared: ‘l wanted them to be like angels. Now, I will force them to walk three miles (the length of the camp) to perform their functions.’”
This passage obviously implies that the practices mentioned in this halachah were instituted during the Jews’ journey through the desert when the ark accompanied them.
Once the Jews settled in Eretz Yisrael, the ark with the tablets was taken to war only once (See I Samuel, Chapter 4). According to one opinion in the Jerusalem Talmud (Shekalim, Chapter 6), a second ark containing the tablets broken by Moses accompanied the people to war at all times. However, the Sages do not accept this view.

The Yereim (362) states that these mitzvot only apply when the ark accompanies the Jews. The Rambam does not accept this opinion for even if the ark did not accompany them, God’s presence did.

To quote the verse in its entirety: “[These rules are ordained] because God, your Lord, accompanies you, in the midst of your camp; to deliver you and grant you victory over your enemy. [Therefore,] your camp must be holy. Let Him not see anything lascivious among you, lest He turn from you.”
The verse gives the ultimate reason for the above practices. Were we to rely on the considerations of human decency alone, it is possible that the tensions of war would provoke a certain laxity in these matters. However, since they were instituted as respect for God’s presence, they are eternally relevant for He is always with us.
In addition to the rules the verse sets down, it also contains a promise of success. God assures the people: If you will maintain your standard of holiness, I will “deliver you and grant you victory over your enemy” (Sifri).