Eighteen Treatises from the Mishna, by D. A. Sola and M. J. Raphall, [1843], at sacred-texts.com

CHAPTER XII.

§ 1. The precept of letting the parent bird, found in a nest, fly away [Deut. xxii. 6] is obligatory, in, and out of the Holy Land, during, and after the existence of the Temple, and applies to non-consecrated

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birds [‏חולין‎], but not to those which are consecrated sacrifices. 1 The law is more rigid in respect to the obligation of covering the blood, than in that of letting the parent bird fly away, in as much as the first-mentioned precept applies to wild animals and fowl, whether ready at hand or not, and the latter applies to fowl only, and to those which are not ready at hand. By this latter expression is understood such as geese or fowls, which make their nest in an open field or orchard; but those which nestled within the house, or in respect to Herodian doves, 2 this obligation does not apply, nor to unclean birds, 3 nor unclean birds incubating the eggs of clean birds, nor these latter hatching the eggs of unclean birds. R. Eleazar holds, "That it is obligatory to set at liberty a cock partridge 4 found in a nest," but the sages do not consider this necessary.

§ 2. If the dam was fluttering about the nest, if she touched it with her wings, it is obligatory to let her fly away, but not when her wings do not touch it; if there was but one young bird, or one egg, it is nevertheless obligatory to let the dam fly away, because the Scripture uses the term ‏קן‎, "nest," i.e. any nest. When some of the young birds are already on the wing, or that the eggs are addled, the precept does not apply, for it is written, "And the dam sitting upon the young birds, or upon the eggs." Even as the young birds are supposed in the text to be live ones, thus also must the eggs be fit for incubation [and to produce life], from which term addled eggs are [of course] excluded; and even as the eggs [to complete the process of incubation] require the care of the dam, thus also must the young bird mentioned in the text yet require the nurture of the dam, consequently those birds which are already able to fly are excluded. Should a person have let the dam fly away, and she returns constantly to the nest, even four or five times [or oftener], he is bound to let her fly away, for it is said, "Thou shalt surely let the dam go," &c. When a person says, "I take the dam, and set the young birds free," he must let the dam go also, since it is written, "Thou shalt surely

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let the dam go." If he takes the young birds first, and then puts them again in the nest, and the dam returns, he is no longer bound to let her fly away again.

§ 3. When a person has taken the dam and the young birds from the nest, he shall, according to R. Jehudah, suffer the punishment of the stripes, but he is not bound to let the dam fly away; but the sages hold, "That he is bound to let her fly, but is free of the punishment." For this is the rule, "For the transgression of a negative precept, which may be rectified by an act, no punishment is to be inflicted when that rectifying act has been done."

§ 4. The dam and the young birds are not to be taken from a nest, even to [serve as a sacrifice] to cleanse the leper [Lev. xiv]. If the Holy Law attaches so much importance to this precept, which is so easy to be observed, and though scarcely demanding the sacrifice of the value of an issar, 5 does nevertheless use the expression, "That it may be well with thee, and that thy days may be prolonged," how much more precious must be the reward attached to the observance of other [more difficult] precepts of the Holy Law.

Footnotes

353:1 For instance, if a person consecrated a bird for the service of the Temple, and that bird flew away, and was afterwards found brooding in a nest, and recognised.

353:2 Original ‏יוני הרדסיאות‎; some explain it as in our text, and derive that name from King Herod, who used to be partial to that breed; others derive it from a town called ‏הרדס‎; but all agree that a kind of doves is meant which are bred in the dovecote, and are quite domesticated.

353:3 This is learned from the expression ‏צפור‎.

353:4 Because [it is said] that bird incubates as well as the hen.

354:5 A small coin.