Counted, Not Chosen

The Hook

A ewe that has never given birth before gives birth to two males, and nobody was standing in the barn. The Rambam does not shrug at this the way we might. He writes something closer to a philosophical confession than to a ruling. Even if both of their heads emerged at the same time, he says, it is impossible that one did not emerge before the other. The fact exists. There is a firstborn lying in that straw right now, holy from the moment it drew breath, belonging to a priest and to nobody else. We are simply not going to find out which one it is.

Hold onto that picture, because a chapter and a half later the Rambam builds a small room around the very same problem and comes out somewhere else entirely. He describes a corral with a doorway cut deliberately narrow, narrow enough that two animals cannot walk through it side by side. The mothers are set outside. They call, and the lambs come out to meet them one at a time, because the Torah says all that passes beneath the staff, which the Sages understood to mean that they walk out on their own and that you may not reach in and pull one out by hand. A man stands at the gate with a stick and counts to nine. The tenth animal through the door, male or female, unblemished or blemished, gets a stripe of red paint and four words. This is the tithe.

Nobody chose that lamb. It was tenth, and that is its entire qualification, and it is enough to make it a consecrated offering slaughtered in the Courtyard. Three chapters that open with a holiness nobody can locate close with a holiness nobody is allowed to select.

Bechorot 5: The Lamb Nobody Can Claim

Chapter five is a patient walk through uncertainty, and what makes it remarkable is how little the Rambam does to resolve it. When the first-time mother bears two males, the priest takes the weaker of the two and the other is a firstborn of doubtful status. But if one of the twins has died, the priest receives nothing at all, because the survivor is only possibly the firstborn. If she bore a male and a female, the male is again only doubtful, because perhaps the female came first, and again the priest goes home empty.

The principle running underneath all of it is a rule of procedure, not a rule of holiness. Hamotzi mechavero alav hara'ayah. Whoever wants to move something out of a colleague's possession has to prove his claim, and it applies to a lamb that may be consecrated to God exactly as it applies to a disputed field. Two men leave animals with the same shepherd, one a firstborn and one ordinary, and one dies. The shepherd, the Rambam says with a shrug you can almost hear, may leave the survivor standing between them and walk away, and the owners divide it, because neither can identify his own.

So what happens to the animal in the middle, the one that might be holy and might be an ordinary sheep? It pastures. It goes out with the flock until a blemish comes upon it on its own, and then the owner eats it. It may not be brought as a sacrifice, and the reason is slightly chilling: lest a person end up slaughtering an ordinary animal in the Temple Courtyard. Doubt does not get the benefit of the doubt in the direction of holiness. It gets it in the direction of not doing damage.

And then, quietly, one line that upends the emotional logic of the whole chapter. If a priest has already taken possession of the doubtful firstborn, it is not expropriated from him. The burden of proof protected the owner while the animal was in his hands; once the priest has it, the same rule protects the priest. The law is not on anybody's side. It is on the side of whoever is holding the rope, which is a much harder thing to be sentimental about.

Bechorot 6: Only What Is Born in Your Own Yard

Chapter six changes subject and, at first glance, changes mood. It is a positive commandment to separate one out of every ten kosher animals born to a person each year, and the mitzvah applies only to cattle and sheep. It holds in the Land and outside it, when the Temple stands and when it does not, and then the Sages forbid it in our era anyway, lest a consecrated animal be eaten while unblemished and someone become liable for karet. Priests, Levites and Israelites are all obligated. The animal is slaughtered in the Courtyard, its blood cast in a single heave toward the base of the Altar, and the meat is eaten by the owner in Jerusalem. The priests get nothing. It is given to its owner in its entirety, the Rambam says, like the Paschal sacrifice.

That comparison is worth stopping on. The tithe of animals is one of the very few consecrated offerings that comes back to the person who gave it. He does not surrender it, he eats it, in the holy city, at a table. And he may not sell it, because the verse says it shall not be redeemed, which the Oral Tradition extends to selling. Here the Rambam adds one of his rare personal notes. It appears to me, he writes, that if a man does sell it the sale is of no consequence and the buyer acquires nothing, which is precisely why the seller is not liable for lashes. Nothing happened. The words did not land.

Then comes the sentence that governs everything after it. When a person purchases lambs born this year, or they are given to him as a present, he is not obligated to tithe them. The obligation applies only when the animals are born in his domain. Two partners each bring a hundred head and merge the flocks, and all two hundred are exempt, because each animal counts as having been sold. Brothers who inherit lambs in their first year are exempt. The offspring born to the partnership afterward are obligated, because those were born in their domain and the partners count as one person.

You can feel the Rambam building a wall around a single idea. The tithe is owed on what came into being under your roof, on your watch. Not on what you acquired, not on what you were given, not on what you shrewdly assembled. And then, at the end of the chapter, he cuts a doorway through his own wall. A purchaser is exempt only if he bought the animals after they were fit to be tithed. Therefore a man who buys lambs within the seven days after their birth is obligated to tithe them when the time comes, because an animal lacking in age is not yet fit for the corral, so buying it is like buying a fetus that was then born in his domain. The buyer who moved too early is not a buyer at all. He is a shepherd whose flock happened to increase.

Bechorot 7: The Narrow Gate and the Staff

Chapter seven is the mechanics, and the mechanics are the message. If a man owns ten lambs and simply hands over one, or owns a hundred and hands over ten, he has not tithed. Nothing has happened. The tithe is not a quantity, it is a procedure. Gather everything born that year into a corral, cut the entrance small so two cannot leave together, put the mothers outside, count with the staff, mark the tenth. And then, having described the ritual with such care, the Rambam tells us that if the man forgot the red paint, or used no staff, or counted them lying down, the tithing takes effect anyway. Since he counted them ten by ten and consecrated the tenth, it is a tithe. The choreography matters and the choreography is not the point.

The rest of the chapter is geography and calendar. Each herd is reckoned on its own, and five lambs in Jerusalem and five in Acre are not combined, so all ten are exempt. The distance at which two herds still count as one is sixteen mil. And then a lovely piece of legal architecture: nine animals on one side, nine on the other, one standing in the middle, sixteen mil between each, and the middle one binds all three into a single corral. One lamb in the gap turns two exempt flocks into a tithed one.

Sheep are not tithed for cattle nor cattle for sheep, but sheep and goats are tithed for each other, because the verse groups them as one species. The year runs from the first of Tishrei to the twenty-ninth of Elul, so five lambs born on the twenty-ninth of Elul and five born the next day never meet in the same corral.

And there are three fixed dates the Sages called threshing floors, when a man may no longer sell or slaughter his offspring until he has tithed. The last day of Adar, the thirty fifth day of the Omer, the last day of Elul, each one fifteen days before a festival. The reason given is not spiritual at all. It is so that animals would be available to the pilgrims coming up to Jerusalem. And when the deadline has passed and a man slaughters anyway, the meat is permitted. He has transgressed and his dinner is kosher.

The Unifying Principle

Read the three chapters in one sitting and a single question keeps surfacing. Who decides what is holy? In chapter five nobody decides, because nobody can know, and the law arranges the furniture around the unknown and walks away. In chapters six and seven nobody decides either, because the tenth animal through a narrow gate is not anyone's judgment about which lamb deserved it. Between them sits the one thing a person actually controls, which is not selection but presence. Was the animal born in your domain. Did you bring the whole flock into the corral. Were you there.

The Alter Rebbe built the Tanya around the figure he called the beinoni, and the shock of that book is that the beinoni is not a compromise between the righteous man and the wicked one. He is a full category of service available to every person, and the Alter Rebbe insists this is the rung each of us should be reaching for and can reach. Not the exceptional soul. The one that walked out tenth. There is a whole spirituality of self-selection that the tithe quietly refuses. You do not audition for holiness. You show up in the corral with everything you have and let the count fall where it falls.

The Baal Shem Tov taught that a leaf turning over in the wind is turning by divine providence, that nothing in the created world moves at random. Put that beside the corral and something clicks. The Rambam is not describing a lottery, he is describing what a lottery looks like from below. From inside the flock it is chance. From outside the gate, where the mothers are calling, every lamb is being counted by name.

And the Lubavitcher Rebbe returned again and again to the principle that no Jew is spare, that the people is one body in which the heel is as indispensable as the head. That is the tithe's own logic in reverse. If the tenth animal is holy regardless of whether it was the finest, then the flock contains no filler. Any of them could have been tenth. The blemished one enters the corral with the unblemished, and if it comes out tenth, it is the tithe.

Modern Application

Two things follow, and both cut against instincts most of us have trained for years. The first is about what you owe. The tithe is not owed on the flock you bought, the flock you were given, or the flock you inherited. It is owed on what was born in your domain, which means the only thing being asked of you is a portion of what actually came into being through your life. Not your acquisitions, not the good reputation somebody handed you. Everything else is exempt, and the exemption is not a compliment.

The second is harder, and it comes from the buyer who moved too early. A man purchases lambs four days old and learns that he is obligated after all, because at four days they were not yet fit to be tithed, so the purchase does not count as a purchase. Move close enough to the beginning of something and you cannot claim you merely bought it. Take on a family, a business, a community, a broken thing, at a stage early enough that nobody would yet have counted it, and it becomes yours in a way a later acquisition never would. You were there before it was ready to be counted, and that makes you the owner.

The Closing

The Sfat Emet taught that Elul is a season when what is normally reached only by ascent comes down and stands within ordinary range. The last day of Elul is one of the three threshing floors of the tithe of animals, the deadline before the flock must be brought into the corral. The final hours before Rosh Hashanah are the hours a shepherd stops trading and starts counting. The Mishnah says that on Rosh Hashanah all the world's inhabitants pass before Him like sheep beneath the shepherd's staff, and the Rambam has just told us exactly what that gate looks like: cut narrow on purpose so no two go through together, with the mothers calling from the other side so that everyone comes out on his own feet.

The lamb nobody can identify pastures quietly until its blemish comes, and the lamb that walks out tenth is painted red and carried to the Courtyard, and neither one was chosen. That is not a diminishment. It is the removal of the most exhausting job a person ever gives himself, the job of deciding whether he qualifies. Bring the whole flock in. Cut the gate narrow enough that you have to go through alone. Then walk, and let somebody else hold the staff and do the counting.