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Permission has been granted by the Project Coordinator Judy Wolkovitch to reprint the following article which has been translated for Jewish Gen. It was originally published in the Yampol yizkor book in Jerusalem 1963.

(H)
Amongst the other difficult queries - perhaps the most difficult - which came before him when he first lived in Brody, and then in Yampol, was the following question, one which caused him (according to the testimony of his biographers) much anguish and soul-searching.
In the year 1744 he received a query from 'Ashkenazi scholars' of a certain community, whose name is not mentioned in his lengthy Responsum (Even Ha:ezer 1:72) so as not to upset the family concerned, which was a distinguished and respected family. Furthermore the father of the husband was a powerful man, who made use of civil law courts, and who had obtained from the judge a harsh ruling to punish severely anyone who would publicize the matter.

The facts of the case were as follows. Serious rumors had been spread about the woman who was the subject matter of the query, to the effect that she was an immoral woman. In that town there was a custom “that before Rosh Hashanah ... a number of.people would come before the Beth Din .. to confess their sins and to receive some.sort of penitence, as would be determined by the spiritual leaders, by way of fasting or deprivation, each one as appropriate to the extent of his iniquities and each one would come by himself.”

As a result of their confessions, it became known to the Beth Din that the woman concerned was guilty of immorality. The rumors increased on a number of occasions but because the woman's family and that of her father-in-law, were powerful people given to violence, they managed to hush them up. But now that the Beth Din saw that a number of men had been ensnared in the trap of this adulterous woman, they came to the decision to inform her husband's father one night, in a gentle fashion, and with the exercise of a degree of discretion, seeing that he was such a powerful and forceful person.

After some days had passed, the husband's father came to the Dayanim and asked them to send one night for the penitent confessors and to cross-examine them, after application of the threat of excommunication (if they were to tell a lie.) The Dayanim did indeed do so that very night, and having been warned about the excommunication, they said what they had to say and they told the husband's father that night. Immediately he threatened that he would reveal the names of the witnesses and he gave instructions to beat them up cruelly but they refused to tell him the names and they said to him quite reasonably, “Why do you want to have a adulterous woman in your house?”

The responsum continues with a detailed account of the inquiries and investigations and the testimony presented before the Beth Din, “and afterwards the relatives of the woman spread a rumor that the witnesses were suspect and disqualified to act as witnesses.” After exhaustive investigation, the Dayanim came to the conclusion that this rumor was groundless and they could not be disqualified.” And then the father of.the husband went to the civil courts, together with the wife's relatives, to lodge a complaint against the Dayanim and witnesses, and the ruler became very angry with them and imposed a severe punishment on them, both physically and financially, and he ruled - on pain of a large fine which would be impossible to pay - that no one should say anything about this matter. In short, the husband's father carried out the threat he had made at the beginning. “And now the husband and wife want to continue living with one another - and we request a ruling as to their status according to the laws of.our holy Torah.”

[From the sermon which he preached in Yampol on Shabbat Shuvah in the year 1753 (see Doresh Letziyon, Derush 13) we learn that this difficult query came to him whilst he was still in Brody in 1744, as he writes “And behold, approximately nine years ago I gave an answer to this difficulty - noted by the son of the author: See Noda BiYehuda 1 Even Ha-ezer 72 and 74, and Noda BiYehuda 2, Even Ha-Ezer 77 at end.”]

The woman concerned was a native of Yampol but when the Noda BiYehuda received the query “from Ashkenazic sages” of a certain community (whose names are not mentioned, for the reason given previously) he was not intimidated nor cowed by the potentially serious consequences. He began to analyze the question with reasoning of astonishing brilliance and scholarship. And after clarifying - on the basis of sources in the Talmud and halachic authorities, whether early or late - all the possible arguments one could find to absolve the woman, he concludes by way of practical ruling “that this wife is forbidden to her husband by means of a severe prohibition of Torah law and she is considered “impure” (forbidden) just as any incestuous relationship and if her husband does not divorce her, then he too is not free of guilt, and he shall bear the consequences of his iniquity and the rest of the Jewish community is blameless.”

The scholars of the “kloiz” in Brody, including the Ga'on Rabbi Meir Margolioth - author of the work “Meir Nesivim” and amongst the greatest scholars of that time - the Kabbalist Rabbi Chaim of Sanz, the well-known Chassid Rabbi Avraham Gershon Kaitover (brother-in-law of the Ba'al Shem Tov) and others, supported the ruling of Rabbi Yechezkel. They were very incensed over the perversion of justice and audacity of the wealthy men, in particular, the father of the husband, who was - as previously noted - a powerful man who utilized all resources, based on the judgment in the civil courts, to ensure that the ruling should not be publicized anywhere. Similarly the family in Yampol could not forgive Rabbi Yechezkel for this ruling of his and became his enemies for as long as he lived in Yampol.

Dr. Klein, who was one of his biographers, and wrote about him in a German anthology, speculates that he was forced ultimately to give up his post in Yampol because of this ruling of his. It seems to me, however, that this is an unfounded speculation. What is most surprising is that some of the elders of the town, who were very familiar, by way of traditions from their parents, with many details of his public life, do not mention this episode at all and never suggested that it was because of this that he had to seek a new post. The reason why he chose to move to Prague is very simple: because he was too restricted in a small town.

(I)
Before he left Yampol in July 1755, he responded to a difficult question (Even Ha'Ezer 1:36.) “A certain person went on a journey from the community of Brailov to “little Poland” and did not return home. After making inquiries, they found the corpse of a dead man who had certain identification marks on his clothes and body. His wife said that her husband had an identifying mark, namely a scar from a wound he had had on the finger next to his right index finger but on the corpse they found there was no such scar, although there was a scar on the finger next to his left index finger. The grandfather of the woman, who presented the query to me, said that it is quite likely that she made a mistake and that she made a slip of the tongue between “right” and “left” and they should therefore question her again.”
In his reply he excuses himself on the ground that he was about to leave the town and that he had no books with him because many of his books had been burnt “because we had a great fire in our community and those books which I saved from the fire I have already sent on ahead. I do not have any place of rest so how can I respond to such a serious query without research [in my books?] But our generation is an impoverished generation and there are some people who are familiar with the words of the halachic authorities but do not want to give a permissive ruling unless they gain financially thereby and they take bribes to issue decision. There are others who wish to be considered wise and are not familiar with halachic authorities. And so I said [to myself]: Come what may, 'let me turn aside for a while and have a look' and maybe I can find a solution for her, especially as I declare that no one should rely on my decision alone until it is supported by leading halachic authorities.”

And after clarifying the problem at great length, starting with the early sources, from the Rif and Rambam, until the most recent contemporaries, “and the principal authority on this is the Ga'on Maharal of Prague” he concludes by ruling “that we can put together various grounds for leniency and permit this woman, based on the various marks of identification, including the clothes ... with a clearly stated proviso, however, that two leading halachic authorities agree with me ... and if they agree with me - well and good, but if not - everything I have said is null and void because I have already written that my books are not here and I am writing in a hurry as I am going to be leaving here, the holy community of Yampol, within the next few days ... on Monday, the 6th of Av 1745.”

In this Responsum the Noda BiYehuda spreads a clear light about the sorry state of affairs which then existed in a number of communities in the Rabbinic world. The clear accusation against certain Rabbis of that generation “that they do not want to permit anything without financial gain and they take bribes to judge” is a heavy accusation which only a Torah giant such as he could permit himself to make and this was typical of the strength of his Rabbinic personality.