The Gemara relates that in the days of Rebbi, the Beis Din wanted to permit
the Nesinim to enter the Jewish nation. Rebbi vetoed the proposal on the
grounds that the Nesinim are also servants for the Mizbe'ach, and we are not
authorized to abolish the Mizbe'ach's share of the Nesinim.
It is not clear from the Gemara exactly what was the nature of the Gezeirah
that was enacted against the Nesinim. Was it a Gezeirah of Avdus, that they
must be servants, or was it a Gezeirah of Isur, that they may not marry into
the Jewish people?
On one hand, the Gemara says that Moshe Rabeinu and Yehoshua made Gezeiros
against the Nesinim, and we find only that Moshe and Yehoshua made them
servants and not that they specifically prohibited the Nesinim from marrying
Jews. Also, Rebbi did not want to permit the Nesinim because they were
*property* of the Mizbe'ach and we have no right to take away the property
of the Mizbe'ach.
That the Gezeirah was to make the Nesinim into servants has further support
by the fact that in the days of Rebbi, the Beis Din wanted to permit them on
the basis of the principle of "Hefker Beis Din Hefker" as RASHI says. It
does not seem that they wanted to override a decree of a previous generation
(since a later Beis Din is not qualified to do that unless it considers
itself to be greater than the original Beis Din who created the decree).
This implies that the Gezeirah was that they were given over to be servants,
and their prohibition against marrying Jews is merely a result of their
status as servants.
On the other hand, other sources indicate that the Gezeirah was not to make
them servants, but only to prohibit them to marry Jews. The Mishnah (Kesuvos
29a) teaches that when a Nesinah is raped, the perpetrator is required to
pay her the fifty Shekel Kenas, while a Shifchah (maidservant) who was raped
does not receive the Kenas (even if she was a Besulah at the time of the
rape, as Tosfos cites from the Yerushalmi). It must be that a Nesinah is not
a Shifchah, and no Gezeirah was issued making the Nesinim into servants.
Rather, the Gezeirah was merely to prohibit them from marrying into the
(a) TOSFOS (DH Nesinim) cites some who suggest that Moshe and Yehoshua made
a decree of Avdus for the Nesinim, but their decree applied only while the
Beis ha'Mikdash was standing. David ha'Melech's decree applied after the
Beis ha'Mikdash was destroyed, and it did not involve servitude. Rather, he
prohibited the Nesinim from marrying Jews because of the bad Midos of the
According to this explanation, why did Rebbi say that we cannot permit the
Nesinim because of the "Chelek ha'Mizbe'ach," if today the decree is not one
of Avdus but of a prohibition against marrying them?
It seems that Rebbi meant to say that when the Beis ha'Mikdash will be
rebuilt, then Yehoshua's Gezeirah of Avdus will apply once again, and the
Nesinim will have to be Avadim. If we permit them now to marry into the
Jewish nation, then when the Beis ha'Mikdash will be rebuilt we will not
know who the Nesinim are who are supposed to be servants of the Beis
According to this explanation, how could the Beis Din in the time of Rebbi
propose to remove David ha'Melech's Gezeirah? His Gezeirah prohibited the
Nesinim from marrying Jews and was not a Gezeirah of Avdus. We know that a
later Beis Din cannot revoke the decree made by an earlier Beis Din unless
the later Beis Din is greater than the earlier one in wisdom and in numbers
(Beitzah 5a). The answer might be that it is obvious that the Beis Din in
the time of Rebbi wanted to permit the Nesinim because their nature had
changed, and they no longer had bad Midos. Some Rishonim maintain that when
the *reason* behind the earlier prohibition no longer exists or applies, a
later Beis Din *may* revoke the Gezeirah without being greater in numbers
and wisdom from the earlier Beis Din (see Insights to Beitzah 5:2).
According to this explanation, though, the Gemara's question (79a) is very
weak when it asks that David did not make the Gezeirah, but Moshe made the
Gezeirah. The Gemara should have answered simply that Moshe made a Gezeirah
of Avdus and David made a Gezeirah of Chasnus!
(b) Tosfos cites another explanation that says that Moshe, Yehoshua, and
David ha'Melech all made Gezeiros *only* of subservience, decreeing that the
Nesinim do domestic labor. However, they obviously were not made into bona
fide slaves, like we see from the Mishnah in Kesuvos that we mentioned in
our question. (The RASHBA writes that they were indeed bona fide slaves, but
since they had no *specific* master, the normal laws that prohibit slaves to
marry into Israel did not apply to them.) However, since they made them do
menial work similar to slaves, it was appropriate for the to be prohibited
to marry into Israel, just like it is prohibited to marry real slaves.
This explains why it is only necessary to prove that Moshe Rabeinu made them
work, and not that he specifically decreed that it is Asur to marry them.
This also explains how the Beis Din in the time of Rebbi could propose
permitting them to marry Jews. The prohibition to marry the Nesinim was only
an offshoot of the fact that they were Avadim. Once they are no longer
Avadim (because of "Hefker Beis Din Hefker"), there is no longer an Isur to
According to both of these two first approaches, it is clear that the Isur
of "Lo Sischaten Bam" (Devarim 7:3) does not apply to Nesinim. This follows
the view of the BA'AL HA'ME'OR (76a) who explains that our Gemara
contradicts the apparent conclusion of the Gemara earlier (76a) that Nesinim
are prohibited because of the Isur of "Lo Sischaten Bam." Our Gemara favors
the opinion that the Isur of "Lo Sischaten Bam" applies only *before* a
Nochri from the seven Canaanite nations has converted, but not after
conversion. Hence it does not apply to Nesinim, who are converts. (See
Insights to Yevamos 76:2.)
Alternatively, only the first generation of converts from the seven nations
are Asur, but their children are Mutar. Thus today's Nesinim are Mutar even
if the Isur of "Lo Sischaten Bam" applies to a member of the seven nations
after Gerus (RAMBAN and RITVA).
Rashi also favors this ruling in a number of places (37a, DH Nesini, Kesuvos
29a; see also Rashi Yevamos 70a DH Mishum Rabeinu and Menachos 43a DH Mishum
Zonah). He writes that the Isur of the Nesinim is not related to the Isur
d'Oraisa of "Lo Sischaten Bam." (When Rashi writes, in Yevamos 37a, that
the Nesinim have a "*sort of* Avdus," he probably is hinting to the second
explanation of Tosfos, that there is an Isur d'Rabanan to marry them because
of their pseudo-state of Avdus.)
(c) Tosfos cites a third approach from RABEINU TAM. Rabeinu Tam says that
our Gemara is consistent with the conclusion of the Gemara earlier (76a)
that the Nesinim are Asur mid'Oraisa because of the Isur of "Lo Sischaten
Bam." The discussion of Gezeiros in our Gemara involves only the Gezeiros of
Avdus, and not of the Isur of Chasnus. Even when the Beis Din in the days of
Rebbi wanted to permit the Nesinim, they only wanted to remove their state
of Avdus, but they would remain Asur to marry Jews mid'Oraisa. Rebbi
protested this, saying that we should not remove their Avdus to the people,
lest we forget about their Avdus to the Mizbe'ach when the Mizbe'ach is
According to this, it is clear why the principle of "Hefker Beis Din Hefker"
would be able to remove the Gezeirah, since they were only trying to remove
the Gezeirah of Avdus. (Even according to Rabeinu Tam, it must be assumed
they were not true servants, but only pseudo-servants, and they were not
prohibited because to marry into Israel because they were servants -- as we
see from the Mishnah in Kesuvos.)
RASHI follows this opinion (and contradicts what he writes in the places we
mentioned at the end of (b)) in a number of places (Yevamos 49a, DH
u'l'Rebbi Sima'i; 68a, DH Kuti v'Nasin; Makos 13b, DH Nesinah; see also
Rashi Sanhedrin 82a DH Ovedes Kochavim).