Tears and Laughter in an Israel Courtroom

Citation preview

BY

SHNEOR

Z.

CHESHIN

translated from the Hebrew by Channah Kleinerman

Tears and Laughter in an ISRAEL

|

COURTROOM

The Jewish Publication Society of America

Philadelphia

5731-1971

Copyright ©, 1959, by THE JEWISH PUBLICATION SOCIETY OF AMERICA All Rights Reserved Fifth Impression, 1971 Library of Congress Catalog Card Number 59-8515 Manufactured in the United States of America Designed by Elaine Lustig

To the memory of my father, R. Moshe-Dov son of R. Shmuel-Shalom, and of my grandfather, R. Shmuel-Shalom son of R. Moshe, Torah Scribes in the Holy City of Jerusalem.

The Jewish Publication Society takes pleasure in thank-

ing Miss Channah Kleinerman for her devoted efforts in translating this book from the Hebrew. To N. Twersky of Tel Aviv, publisher of S’hok v’Dema‘ b’Veit ha-Din, and Masadah, publisher of D’muyot mi-Beit ha-Mishpat,

and to Mr. Joseph Stern, the illustrator of the latter volume, the Society is grateful for their kind coopera-

tion. Justice Cheshin has been most helpful whenever we turned to him for advice. We express our gratitude to him as well.

Foreword to the English Edition The chapters included in this volume were taken from the original Hebrew editions of my books, S’hok v’ Dema‘ b’Veit ha-Din (Laughter and Tears in the Courthouse) and D’muyot mi-Beit ha-Mishpat (Courthouse Scenes),

in which I sought to represent life in Israel (Palestine) as it is reflected in the proceedings of our courts. These

books were published in several editions during the Mandate era as well as after the establishment of the State; most of the material was drawn from my experiences as a judge in the Magistrate’s Court and in the

District Court of Tel Aviv. The legal system of the State of Israel differs in many

important

details

from

the system

that prevailed

in

Palestine under the British Mandate. At the time of the Mandate there were some laws which gave the land the character of a dependency whose political life was deter-

mined from without, from the capital of a foreign power and often on behalf of the interests of that power. Such

laws have been entirely abolished and their place taken

by the laws and ordinances necessary for conducting the affairs of a self-governing nation. The foundations for an

independent system of administration and law were estabvi

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lished, and it is these that determine the fortunes and destiny of the new state. On the 14th of May, 1948—the day the Declaration of Independence was issued—there was born, with the

assistance of the United Nations, the sovereign State of Israel which inherited—in fact, if not from a purely

legal point of view—that “homeland” of Palestine that had been created by the League of Nations after World

War I; the cord of dependence upon the Mandatory

Power was broken; all special privileges which had previously been granted to the British Crown, to the English administration and to various British governmental bodies were revoked, and English ceased to be one of the country’s official languages. The character of the law—civil as well as criminal, substantive as well as procedural—has also undergone a transformation. Reforms have been made in laws pertaining to the nation’s economy, culture, education, family relationships and inheritance. The legal status of women has been raised; labor laws aimed at bettering

the social conditions of both the Jewish and Arab populations have multiplied; laws of national security have been enacted for the first time. In place of the Common Law which served as the principal source for the law of the land during the days of the Mandate, original Hebraic concepts of justice have begun to prevail more and more in Israeli legislation, although the lawmakers also take into consideration continental European prin-

ciples of jurisprudence. And yet, despite all this, there has been almost no change in the social and judicial panorama described in

these pages, nor in the diversity of the problems brought

before the courts; indeed, in some types of conflict, cer-

tain characteristics have become even more pronounced

ix« Foreword to the English Edition due to the mass immigration of Jews from all over the

world. This or that law may be wiped off the statute

books and another written to take its place, but it is impossible to change, within the span of one decade, a colorful social scene that has crystallized over the centuries, or to uproot customs and modes of life that have grown deep into the very hearts of generations of men

and women and have become an inseparable part of their being.

For the English edition I found it necessary to com-

ment, in appropriate sections of the text, on a number of

constitutional changes. In many instances these changes

have entirely removed the basis for certain categories of lawsuits that were formerly presented to the courts.

There are, for example, the reforms in family life that derive from the limitations imposed by law upon child-

marriages and polygamy. The Women’s Equal Rights Law of 1951 and the Compulsory Education Law of 1949 have also contributed significantly to the improvement of the legal and social status of women and children who would otherwise remain without guidance or schooling, with all the disastrous consequences of such neglect. One must, however, beware of rash generalizations—

of claiming that these laws, significant though they may be, have succeeded in providing a panacea for all the nation’s ills. Frequently there are conflicts between the lawmakers’ desire to give the nation a liberal secular law and the conservatism of certain important segments of the community who desire to cling to their religion and traditions. In such cases ways and means must be found for arriving at a compromise in the written law.

At other times it becomes apparent that, despite its good

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intentions, a legal reform is superficial, touching only the surface of the problem and not its roots.

Consider, for example, the Marriage Age Law

of

1950. Under this law it is illegal to marry a girl less than seventeen years of age or in any way to assist in the arrangement of such a marriage. All parties are liable: the person who performs the religious ceremony, as well as all who participate in the ceremony, and possibly even the shadhan (marriage broker). But the law does not declare such a marriage null and void, because there are legal systems—Jewish religious law, for instance— that do permit such marriages, and it is precisely the doctrines of these legal systems that govern the problems of the personal status of the litigants in many cases. It is thus quite possible for a husband to be liable to criminal charges for infringing the law against child-marriage,

and yet to continue to live with his child-bride because

the marriage itself is legally valid. The offense may, it is

true, be used as grounds for terminating the marriage bonds by a divorce or legal separation, but this step is

subject to the jurisdiction of the religious court and to

its attitude on such problems. Moreover, the civil courts

themselves are authorized to permit the marriage of a young girl if she has already borne the man a child or is pregnant by him. And so, because of such cases, we con-

timue to come across those tragic consequences of child

marriages which are described in the book. Polygamy is another case in point. The law of the State of Israel does indeed prohibit polygamous marriages, but the waves of immigration from the Moslem countries brought many men who already had more than one wife; these men are not subject to the prohibition, nor are they required to divorce their other wives.

Neither does the proscription affect those residents of

Foreword to the English Edition

xi

Israel who contracted polygamous marriages before the

enactment of the law. It is thus to be expected that the effectiveness of this law will be felt only in the future,

after the generation of transition.

In most other instances, not related to family life or

marriage, there has been little change in the essence of the legal situation described in these pages, nor has its colorfulness faded. On the contrary, because of the complete dissolution of long-established Jewish communities

in the Diaspora, such as those of Yemen, Iraq, Libya, Egypt and others, the emigration of the Jewish popula-

tion from these and other countries and their concentration in one place—in the Ma‘abarot, in the villages and

in the towns of Israel—there has been a broadening of

the background out of which arise actions that become

the subject of litigation in the courts, and so the problems

discussed within the pages of this book remain timely. Such, for example, are the problems pertaining to ageold customs and traditions, conflicts between parents and

children, the confusion of tongues that echo through the halls of the courthouses, and the difficulties encountered

by newcomers as they attempt to adjust to their new homeland. In all these respects, this material is as up-to-date as when it was first collected. It is now apparent that many years will yet have to elapse before we shall see the full

realization of the prophetic vision: “And who is like unto Thy people Israel—one nation in the land.” S.Z.C. Jerusalem, Hanukkah 5719

CONTENTS

Foreword Introduction

mah

I

Ne O&O

=

IN

THE

COURTROOM

OFFENSES

AND

COURTROOM

Sources of Humor Entertaining Witnesses Types of Testimony The Language Problem Tenants and Landlords Emergency Regulations Unconscious Humor

18 33

OFFENDERS

Matchmakers Libel and Slander Beggars Men of Principle Variations on the Theme of Injustice tl

Gh

SCENES

Courthouse Personalities Moshe-Chaim, A Courtroom Regular On Taking an Oath Religious Traditions and Customs Reflected in the Courtroom Il

NAGS

XV

57 71 95 107 123

HUMOR

iti

139 153 162 169 173 188 192

xiv

CONTENTS I

1 2

V

7

TRAGEDY

The Juvenile Delinquent on Trial Would-Be Suicides V

1 2 3 4. 5 6

COURTROOM

MAKING

AND

BREAKING

The Nature of the Will Categories of Wills Religious Stipulations in Wills The Testament of an Apostate Love of Zion Reflected in Wiils Family Relationships Reflected in Wills The Power of the Fill

8 Preambles and Summations 9 The Will in Folklore

201 255 WILLS

285 292 298 317 320 340 359

364 369

Introduction

The land of Israel—the heart of the Jewish people—is

gathering to itself the remnants of Israel that were cast

out from all the lands of their dispersion. Lovers of

Zion, imbued with nationalistic fervor, refugees from the lands of destruction and extermination, native-born

Israelis whose fate was tied to that of the homeland by

their fathers and grandfathers, Jews from the East and

from the West, from Caucasia and from Kurdistan, from Yemen and from Morocco—all of these live in the Jand side by side, and yet each leads his own, independent life. Theoretically they share a common origin and a common aspiration: to gain a foothold in the land, to adjust to the life of the community and to burn all the

bridges back to the Diaspora behind them and so become a people united by a common ideal, brothers of one flesh.

But in point of fact the life of the Israeli community is far from homogeneous. The majority of the immigrants live within their own groups, and, save for the economic sphere, the points of contact between them are few. They live in the towns and in the villages, self-contained, imprisoned in spiritual ghettos within whose walls they

maintain—whether because of inertia or because of the xv

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sanctity of their deep-rooted traditions—the forms of

life they brought with them from the origin. It is only in a few public places that the opportunity of observing the hidden individual or of a community, to discover

lands

of their

an outsider has inner life of an facets of which

he had been unaware or which had until then posed an unsolved riddle for him. One such place—probably the

most important of them—is the courthouse. It is possible for a man to decide that he will not fre-

quent movies or cafés. If his cultural life has not reached a certain level, he can live quite contentedly without at-

tending the theater, lectures or concerts; if his economic life is relatively uncomplicated, he has no need to become involved with banks or other financial institutions. But it would be difficult to find any member of the com-

munity who has never had, and can boast that he never

will have, any dealings with the court. If he does not turn to it voluntarily, the chances are that some day he

will be summoned there against his will. Any one of a

hundred reasons may lead him there.

No other institution reflects so much of today’s life in

Israel as does the court. East and West, North and South, rich and poor, great and small meet here. Every day

colorful scenes of Jewish life, in Israel as well as in the

Diaspora, are unfolded in the courthouse; ments and attitudes of litigants one hears throbbing heart of an ancient and restless you may hear the tale of woe of a citrus Beer Tuvia, the humble speech of a street Yemen, the recital of the misfortunes of a from Riga, the adventures of a veteran Chicago, or the complaints of a discharged

in the arguechoes of the people. Here grower from cleaner from manufacturer Zionist from soldier fresh

from the Israel battlefield. Here you will see revealed

XVIL

Introduction

before your eyes different ways of life, different con-

cepts of the universe, varying relations between parents

and children, the problems of raising a new generation, the weakening of family ties, the efforts of a people seeking to strike root in the redeemed homeland, as well as political quarrels and fraternal strife. Above all, you

will hear at first hand about local customs, superstitions,

witty sayings,

popular

proverbs

interwoven

with the

Hoge

words of our sages, jests about the world and everything in it, folk sayings, both original and of foreign origin— a richly flowing current of folklore that can be used to study the soul and nature of this people. And if the

Responsa of the ancient rabbis serve the historian as invaluable sociological raw material, as bricks for the reconstruction of the past, there is no doubt that the raw

material constantly accumulating in the-archives of the

courts and in their decisions can serve as a reliable source, not only for studying the development of Israeli law, but also for portraying the present form of the Israeli community, with all the toil and struggle, all the

omen

gISHR

efforts and failures of a generation in transition.

There was a time—not long ago—when the institution of the secular court was not generally accepted by the Jewish community in the Holy Land, Jews on the whole

preferring to bring their differences before the traditional rabbinical court (Bet Din). This attitude had three major causes. First and fore-

most of these was the severe prohibition pronounced by rabbinic law against resorting to Gentile courts. Motivated, on the one hand, by the difficult conditions under

which our forefathers lived in the Diaspora and by their

lack of faith in the fairness of the governmental courts,

xviii

TEARS AND LAUGHTER IN AN ISRAEL COURTROOM

and, on the other, by the desire to strengthen the wellsprings of the Jewish people’s own creative powers, the spiritual guardians of Israel decreed that no Jew was to summon a fellow Jew to judgment before a Gentile tribunal. Thus Maimonides, in his Code at the end of the section “Sanhedrin,” states: “Whoever submits a suit for adjudication to heathen judges in their courts, even if the judgment rendered by them is in consonance with

Jewish law, is a wicked man. It is as though he reviled,

blasphemed, and rebelled against the Law of Moses, our teacher. . .”

Many Jewish communities decreed that quarrels be-

tween Jews were to be brought only before the court of the community, and severe penalties were established for those who violated this rule. The methods employed by communities in the Diaspora to force the recalcitrant to submit to this law were those moral pressures upon which the internal authority of Jewish autonomy was principally based, such as excommunication, exclusion from communal prayer, public denunciation in the synagogues, and issuance of a writ of contumacy. At times they did not even refrain from using more tangible methods of enforcement, such as seizure of the goods and moneys of the offender. Thus our forefathers imposed upon themselves the authority of Jewish law. As one scholar aptly put it: “The judges of Israel, armed with the weapons of judgment—the rod, the lash and the shofar [used in proclaiming excommunication ]|—symbolized what was leit of the governmental authority of Israel, and any infringement upon the independence of the Jewish judiciary was considered a betrayal and subversion of the nation’s very existence.” It is thus hardly surprising that not only actual recourse to non-Jewish

law, but even the mere expression of an intent to sum-

os

Introduction

XIX

mon a fellow Jew before a secular court, was considered a transgression demanding severe punishment.

The second reason for the Jews’ infrequent recourse

to the Gentile courts was the broad juridical autonomy

granted to the various

religious communities

in all

countries subject to the Ottoman Empire. Every individual’s personal legal status was determined by the laws of his community, and lawsuits arising primarily from

family relationships or marital conflicts were decided

exclusively by the religious courts of the community to which the parties belonged. The rabbinical courts, like the courts of the other religious communities in the land, had jurisdiction over a great variety of lawsuits involving marriage and divorce, alimony, wills, inheritances and legacies, and all other matters relating to the per-

sonal or religious status of members of the Jewish community. In view of this broad legal autonomy there was little need, and in certain cases not even the possibility,

for a Jew to turn to the courts of the government. The third, and from a practical viewpoint the most important, reason for shunning the secular court had its source in the primitive living conditions of the Jewish community in the Holy Land down te one or two generations ago. In the last analysis, the unpopularity of the judicial institutions of the government stemmed not so much from a negative attitude as from the absence of any attitude whatever. For the Jews, in the simplicity of their daily life, did not need the courts. The Jewish community of Jerusalem, for example, consisted mainly of members of the “Old Yishuv,” who had either been born in Palestine or had come to spend their last days there. They lived in abject poverty within

the walls of the Old City, or in the scattered newer neighborhoods

that had

arisen here and there outside the

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COURTROOM

walls. But they were content with their lot, for this was the tradition in which they had been raised, and they

knew

no other way

of life. Young

men

took wives,

brought children into the world, sought ways and means

of making a living (or spent their days in the Yeshiva and their nights in the synagogue), led their children to

the marriage canopy, grew old, and died. They neither went to court nor were summoned there. The court was

an institution outside the periphery of their essential needs; their lives flowed smoothly without interference

from secular legislators or governmental judges. Chil-

dren quarreled, as children have in all ages and in all

places, pulled each other’s hair, tore each other’s clothing, and were punished by their own parents or by those of their playmates. Women fought with their neighbors —as

is not uncommon—over

trivial

matters,

hurled

curses and flung insults at each other, and sometimes

even progressed from verbal skirmishes to fist-fights. In the courtyards of the synagogues men carried on heated arguments about metaphysics and politics, or became excited about business quarrels;

at times they insulted

each other or—as a joke—threw wet towels at a cantor who used the wrong nussach (the chant connected with a prayer service). Did the guilty parties ever find themselves in court afterwards? Yet these and similiar incidents furnish a sizable portion of the subject matter of judicial proceedings in Israel today. In those days, even when a thief was caught in the act of stealing in broad daylight, there immediately appeared some compassionate Jews who argued that it was forbidden to deliver a

fellow Jew into the hands of the Gentiles. The result

usually was that the thief was freed on the spot and made his way to a nearby neighborhood to carry out a new

theft. The mere mention of the “court” was immediately

Introduction

ux

hushed. The epithets “stool pigeon” and “informer”

were hurled at anyone who dared to involve a fellow Jew in court proceedings.

And what about lawsuits involving money? The eco-

nomic life of those days was uncomplicated. Commerce and industry were in their early infancy. Corporations and other commercial organizations were almost nonexistent; even partnerships were so few that a child

could have counted them. Transportation on the ill-kept

roads was largely in the hands of Gentiles; the number of Jewish coachmen was very small. There were no collisions of vehicles, public or private, and highway accidents were neither counted nor recorded. Jews did not take out patents or sign commercial contracts. The

credit system was not yet well developed—Jews saw no need for taking out mortgages, and did not default in the payment of charitable loans. Several decades ago a merchant declared himself unable to pay his creditors

and the elders of Jerusalem still speak of this bankruptcy

as of an extraordinary event. What room was there in this way of life for an institution like the governmental court? A Jew never threatened a fellow Jew with “I will sue you” or “TI will take you to court,” but rather said, “I will call you to a Bet

Din.” And the other, to a Bet Din” or “Let the Gentiles were not Had a survey been

in turn, answered, “Fine, we'll go us go to the rabbi.” The courts of so much as mentioned. taken at that time, I am sure that

ninety out of every hundred Jerusalem Jews would have

declared that they did not even know the way to the courthouse. It was the same in Jaffa, in Hebron, in Haifa and wherever Jews lived. Thus it is not surprising that,

at the time of the British conquest of Palestine, the total

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number of Jewish lawyers would not have sufficed for a single minyan.

That era has passed. With the growth of the Jewish

population, the increasing secularization of the life of

the Jewish community, and the broadening jurisdiction

of the governmental courts over the personal status of

the inhabitants, the authority of the traditional law has

weakened. The development of the economy has also confronted the Jewish community with new and complicated legal problems, and given additional impetus to the tendency to seek their solution in secular courts. The court has thus become one of the most essential institu-

tions of the community; for most of the hours of the day it is crowded with people who bring to it for adjudication their legal problems, both serious and trivial, important

and insignificant. Many different images appear within the courthouse walls. There are radiant images of loyal citizens, symbolizing the righteous desire to see justice rule in the land, and there are dark, elusive images symbolic of all that is ugly and degraded in the life of man; there are images of mere shadows of men, those who could not stay afloat in the seas of practical life, and there are images of prosperous and contented men enjoying the pleasures of Paradise in this world; there are the encouraging and pleasing images of those who have adjusted to the life of the land, those whose merit is

recognized by the community, and there are the pale,

colorless images of destitute souls, pursuers of vanity and strife. It is to the description of some of these images that I

propose to dedicate the chapters that follow.

SCENES

IN THE

COURTROOM

ONE

Courthouse Personalities

Nowhere will you find at one and the same time so colorful and so diverse a segment of humanity as you will in the courthouse, especially in that lowest rung of the court system—the magistrates’ court. Its halls and corridors, its offices and courtyards, even the Oriental-

style café that is installed in one of its corners, and the

open square before its entrance—all these, in the morn-

ing hours, are alive with the hum and bustle of the many

who are here on business, as well as of the more who have no business here at all. Who are all these that come

to the court, and what has brought them to the temple of

justice?

First of all, there are all those who directly or indi-

rectly help to turn the wheels of the judicial machine, as well as those who represent one or another of the govern-

mental departments responsible for maintaining law and

order and guarding the public peace. Among the latter are police officers in be-ribboned uniforms, with silvercapped night sticks under their arms; traffic policemen, smart-looking with their freshly pressed white armbands and shiny caps; representatives of the Customs House,

the Pure Foods Bureau and the Department of Health; in3

4

SCENES

IN

THE

COURTROOM

spectors of the Department of Foreign Currency and the Office of Enemy Property; forestry wardens; officials of the departments of light and heavy industry; and representatives of similar departments and bureaus set up by the government for times of peace as well as for emergencies; clerks, attendants and messengers; and last but

not least: the judges.

Secondly, there are all those who have some direct connection with a case that is to be tried that day. Among these are the litigants themselves—plaintiffs and defendants, accusers

and

accused;

witnesses,

appraisers

and

experts; attorneys with their clerks and assistants; public

prosecutors and their assistants; junior lawyers; office girls, secretaries and stenographers. Thirdly—and this is by far the largest group—there

is that variegated multitude known as “the public.” Since the transaction of its business in public is regarded as one of the firm foundations of justice in all demo-

cratic countries, the courthouse is open to all who come

to its gates. All ranks and classes of the general public

make wide use of this privilege, so that the affairs of the court are frequently conducted before a large audience.

This audience, in turn, is divided into several categories,

as follows: First there are those who come to the courthouse with-

out any specific purpose. A person who finds himself with an idle hour on his hands and does not know how to spend it may wander into the court, find a seat and sit there, half-listening, thinking his own thoughts or dozing until his free time

awakes with a start, as though pursued clerks from nearby work too early only

is up, at which moment

he

jumps up and rushes out of the room with rod and lash. Bank tellers and establishments, who have come to to find the doors still closed, pass a

5

Courthouse Personalities few minutes

watching

the court

proceedings;

or em-

loyees of local establishments who have part of their

last lunch hour left visit the courthouse and, chewing the

morsels of their lunch, or toothpicks dangling between their lips, complacently sit down on the benches reserved

for the public and turn their frozen stare now at the

judge, now at the lawyer who is pleading his case with all the fervor at his command, now at the stuttering witness. They are not really interested in the case that is being tried at the moment—aunless it is “spicy” or smacks of sensationalism. Thus they sit and relax, indifferent and apathetic, until the time comes to return to work. This type of visitor is particularly common when there is widespread unemployment in the city, or during a protracted strike affecting some major enterprise. It is difficult to determine just what it is that attracts the unemployed or the strikers to the seat of justice, but they too sit among the spectators, with their gaunt faces and shabby clothes, staring at this strange and foreign world, examining their neighbors to the right and to the left, and listening without discernible interest to a legalistic argument that is beyond their comprehension. To this category also belong those whom curiosity alone has brought inside the walls of the courthouse. The newspapers frequently describe the drama that is re-

vealed in the proceedings of the court; friends hold forth at length upon their experiences as plaintiffs, defendants or witnesses—and

they, the uninitiated, have never so

much as passed through the doors of a courthouse. It is simply unbecoming for a solid citizen, a respected member of the community! And so they come, in twos or threes or sometimes even in larger groups, and enter the courtroom shyly, hesitantly and with a sheepish smile

upon their lips. They stand humbly in one corner of the

6

SCENES

IN

THE

COURTROOM

room and prepare themselves to see and to hear marvel-

ous things. But, as luck would have it, they have come

just as an attorney is citing the paragraphs of a dry-asdust law or is reviewing a series of dull facts, and the court is absorbed in study and deliberation. There they stand, these one-time visitors, amazement in their eyes:

Is this really all there is to it? Is this the court we read about in detective stories and see in the movies? What

a disappointment,

what betrayed

expectations!

After

standing there hopelessly for a while, they beckon to one another, turn toward the door and disappear one by one from the courtroom, the same sheepish smile again on their faces. As they came, so they leave. To the second subdivision of the audience belong those visitors who are attracted to the courthouse because they have some special interest in the acrobatics of the legal

arena. Among these you will find budding lawyers who have come to learn the law—or,

to be more exact, the

technique of expounding the law—from the veteran attorneys, the most renowned lawyers. They sit, aglow with reverence and admiration, watching the senior barrister who is speaking with ease and fluency; they take notes on his way of standing, his manner of speaking, the ex-

pressions of his face, the gestures of his hands, and the

way in which he uses supporting documents or the paragraphs and sub-paragraphs of the law. At times, especially when the high schools are on vacation, you will also see among the crowd some adolescents who want to get to know the profession of the “law,” in order to decide whether it is worthy of consideration when the time comes to choose one’s career. One day several young students carrying volumes of

the Talmud appeared in the courtroom. For a few min-

utes they stood in the doorway, somewhat embarrassed,

7

Courthouse Personalities

examined with wondering eyes those assembled there, whispered to each other with suppressed laughter, and

disappeared. After a short time they returned. Now they

entered the room confidently, like men of experience, and

behind them stretched a long line of boys and girls— students of the fifth or sixth grade in a gymnasium, to

judge by their appearance. All of them found seats in

the last rows of benches, and immediately began to pay close attention to what was going on in the court. Some watched the lawyer who was then arguing his case, without taking their eyes for even a minute from the gestures of his hands or the movements of his head;

others ex-

amined at great length the face of the judge, as though seeking to lay bare his most hidden thoughts; others listened, attentively and quietly, to the testimony of the witnesses. A few tore pages from their notebooks and took hurried notes.

What was it all about? These boys and girls were the

members of a class whose Bible teacher had decided to

put King David on trial, and for this purpose had appointed a judge, a defendant, a prosecutor, a defense attorney and a host of witnesses, some of whom were

to testify on behalf of the “defendant” while others were to bring accusations against him. And now this entire judicial entourage had come to court to see how a trial

is conducted. I heard afterwards that one of the boys would not rest until he had procured a curled wig like those that adorn the heads of British judges and coun-

selors, as well as collar and braided wanted to appear of his professional

a wide-sleeved counselor’s robe with trim. He was to be the prosecutor and before the “court” in all the glory attire. But the youngster was disap-

pointed: the teacher pointed out to him that David, King

of Israel, was to be tried according to the law of Israel

8

SCENES

IN

THE

COURTROOM

and not according to British law, and that from a

torical point of view Anglo-Saxon

costuming

his-

would

hardly be appropriate for those who lived in the days of David. (Incidentally, under the watchful eye of this teacher,

David emerged innocent from his trial by these Jewish children, and no one challenged the verdict.) Once

I noticed

a man

who,

for hours

on end

and

without seeming to become weary, followed every movement of the court’s clerk. When the clerk went out into the corridor to announce the names of the litigants and lawyers for the next case, this man followed him,

watched his wide-open mouth and listened to his singsong voice as he made the announcements in the Ori-

ental manner. And when the clerk sat down again in his place, this man sat down facing him and closely watched his every move as well as his general demeanor. The man, it turned out, was an actor who was to play the part of a court clerk in a play dealing with a trial. In praise of this actor I should like to add that he performed his role well. And is there an artist or a cartoonist who has never

tried his pen in portraying—or caricaturing—the face of a judge, or the profile of a well-known attorney?

Artists, too, come to draw inspiration from the rich at-

mosphere of the courtroom. One day I was surprised to see in the courthouse one of our famous writers. He had not come as a party to a suit or even as a witness or an expert, but simply as a visitor who had apparently happened upon the seat of jus-

tice quite accidentally. He sat amid the crowd as though

he were completely uninterested in what was going on. But he never took his eyes off the people around him, and it seemed as though he were trying to penetrate to

9

Courthouse Personalities the

innermost

recesses

of their

hearts.

He

appeared

again the next day and the day after that, and each time he remained in the courtroom for several hours, absorbing the judicial “atmosphere.” My heart told me that something was brewing inside him. And, indeed, only a few days later the writer enriched Hebrew literature with a description—consisting of only a few lines, as

is the custom of this sharp-sighted artist—of the “Seat

of Justice.” In this audience there are some visitors whose very presence among the spectators touches a chord hidden deep in the heart. Here, for example, sits an elderly man who listens, with great effort and tension, to the legal argumentation. He is a German Jew who for more than thirty years had practiced law in his home town, had been liked and respected by the people of the town,

Gentiles as well as Jews. The terrible tempest that had overwhelmed German Jewry had torn him from his

home and brought him to Israel. But here a man must find a means of supporting himself and his family, and

this man has only one skill—the profession in which he has worked all his life. He decided to try to continue

this career here, in the land of his fathers. But in order

to do this he has to learn—at his ripe age—to speak a new language. So this German lawyer comes to court to learn Hebrew. He cups his ears to hear what is being said and intently watches the lips of the lawyer who happens to be speaking at the moment, as though he literally wished to swallow the words that roll forth so richly and fluently, lest they evaporate and be lost. Suddenly he seems to grow faint, shakes his head sadly, and bitter despair spreads over his face. He has not been able to penetrate the overgrowth of the judicial thicket.

And you may read his thoughts as in an open book:

lo

SCENES

IN

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COURTROOM

“Hebrew is a difficult language for a man of my years. What use is it to try? There is no hope.” He remains seated, crushed and humiliated. A sharp agony distorts his furrowed face, and his eyes stare vacantly straight ahead, seeing nothing. He no longer attempts to follow the legal discussion. The effort was in vain. But in the summertime, when the schools are closed for vacation, this man brings his son, a boy of eleven

or twelve, as his interpreter. The boy, who apparently has learned Hebrew in school as well as in the streets, sits at his father’s side, listens attentively and explains,

in whispers

and

with

gestures,

isolated words

and

phrases. But the subject matter is beyond his grasp, and he gets lost in the maze of language and the laby-

rinths of the law. It seems doubtful that the father will succeed in extending his knowledge of the language with the help of his son. And here we see a group of tourists—genuine tourists,

with their good-looking, well-made clothes and cameras hanging from their shoulders. They have come to the Land to see its upbuilding at close range and have wandered into the courthouse—some merely curious to see how a trial is conducted in a small eastern country, some out of a secret desire to see with their own eyes the miracle of the revival of the Hebrew language and its application to secular life, to hear with their own ears the language of the prophets and the seers. Among them

stands a

tall,

stately,

self-satisfied-looking

man

who explores the room with a somewhat deprecatory expression, letting his eyes wander from the shabby furnishings to the emblem on the wall above the judge’s

seat, from the colorful garments of the Oriental Jews

to the flapping gowns of the lawyers. But suddenly his face lights up and a broad smile spreads over it: amid

Il

Courthouse Personalities

the witness” flow of words he has grasped one that he remembers from the Siddur (prayer-book) or from the Humash (Pentateuch) that he had studied in his child-

hood. He turns to the friend standing next to him and,

with suppressed excitement, whispers something in his ear. Here, in this momentary diversion in the courtroom,

an old “acquaintance” has suddenly been revealed to him, and he is as happy as though he had met a childhood friend. Now he listens with redoubled interest to

what is being said. Perhaps other forgotten memories

will reawaken. . . . But in vain. His face remains frozen. His mind has grasped only one solitary word . . . and that is all....

There is another Jew among the tourists. His expres-

sion is alert, and his glance flies swiftly from the lawyer to the witness and from the witness to the lawyer. One

asks

and

the other answers,

one

raises his voice

and

the other speaks calmly and confidently. And he, this

Jewish

tourist,

directs all his attention

to the debate,

follows the progress of the trial with complete concentration. He is an educated man and a long-time lover of Zion,

who

had

absorbed

the

traditional

texts

in his

youth and still retains, in the recesses of his memory, scattered fragments of his learning. The judicial analysis and the legal discussion have apparently brought up, from the abyss of his subconsciousness, the knowledge of his childhood, the days of his youth spent in a Yeshiva or in a Bet Midrash (a synagogue that also serves as a house of study), and he stands there and excitedly absorbs every word. “Tt is really true, then—here

Jews do express their

TR

ect

thoughts, simply and honestly, in the language of the Bible and of the Mishna. The language is no longer embalmed. It has come to life in the daily speech of the

12

SCENES

IN

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COURTROOM

people, and serves as a natural link between opponents and adversaries. The Law, too, is no longer abstract—a law for the days of the Messiah. Everything here is real and tangible, a living necessity, an outgrowth of everyday relations between man and his neighbor, a

product of the market place, of the life of labor and industry,

of manufacture

has awakened

and

commerce.

The

people

and lives a real, natural life in its his-

toric homeland. Everything is clear and simple!”

The thoughts of this man too are clear and simple. And as the group of tourists leaves the room, he examines once more the crowd assembled there and bows his head, his eyes expressing gratitude for the spiritual solace granted him in this small corner of the homeland. The third group of courtroom visitors comprises those occasional guests who follow one special or particular type of case. If it becomes known, by word of mouth or through the newspapers, that on a certain day the court will deal with a murder case, or with a marital quarrel (especially if the parties involved are members of high society), or with a crime of violence that had particularly aroused the public at the time it was committed—then one may be sure that the proceedings will take place before a large audience. Everyone wants to see the murderer,

or the robber,

or the husband

who

abandoned his wife and mistreated his children, and everyone is curious to hear what the “aristocrats” will say when their disgrace is made public. The courtroom is filled long before the trial is scheduled to begin. Among the closely pressed crowd one will recognize men and women of all kinds and all ages: laborers in their work clothes, businessmen,

civil servants and the

unemployed, intellectuals and skilled workers. While the trial is in progress there will also enter, stealing in

13

Courthouse Personalities

noiselessly on tiptoe, fashionable ladies and housewives who have left their work for “only a minute”; their eyes examine every corner of the room to find the seat saved for them by a more energetic friend who came early... .

Any communal dispute that occurs in the Yemenite

community

or in a neighborhood

of East

European

Jews attracts to the courthouse—in addition to the individuals directly involved and their relatives and wit-

nesses—-a crowd of neighbors, friends, acquaintances, and the curious who avidly follow the process of legal wrangling. This is the hour of glory for the court usher. It is he who now reigns supreme, who maintains order and discipline. It is he who decides who is to enter and who is to leave; he who decrees whether it is time to open the doors or to close them, who may sit down and who must

remain

standing,

who must stop talking.

who

must

remove

his hat and

A case involving the protection of an inventor’s patent

rights, the suit of a matchmaker demanding his commis-

sion, of an architect who did not receive his fee or of

a middleman who claims to have been cheated by either the buyer or the seller—these and other “test cases” always draw to the court members of the craft or profession involved in the trial, as well as others who are directly or indirectly interested in the outcome of the case. These visitors are most unhappy when the case is settled by a compromise between the parties and does not reach a final decision.

Similarly, the trial of a man of learning who strayed

from the path

of virtue and

has been

found

out, the

arraignment of a pious Jew for an offense that had its

source in religious zealotry, or a quarrel originating in a synagogue or Bet Midrash—these cases always attract

14

SCENES

IN

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COURTROOM

Jews wearing kapotes (traditional long overcoats worn

by orthodox East European Jews) and skulleaps; pale, thin Yeshiva students with earlocks and beards; loyal members of the “Sabbath Observance” society; and pious daughters of Israel, wearing colorful shawls, their

heads covered with kerchiefs that slip down over their

foreheads. When a case involves an interpretation of language, or an infringement of the copyright of a literary work,

whether in the original or in translation, then you will

find among the audience philologists, publishers, trans-

lators,

free-lance

writers

and

famous

authors

whose

names you have often seen on the title pages of books but whom you have never had the privilege of seeing in person, as well as other scholars and lovers of language and literature.

There is in our midst one Jew—an educated and enlightened man—who has devoted all his energies to the

purification of the Hebrew language and the correction of its common usage. During the course of a trial he listens only to the language used; the subject matter itself does not interest him. For the sake of public improvement he writes down, as he hears them, any verbal errors

committed by those involved in the trial. At the end of

each session he has in his possession a long list of misusages and grammatical errors, and he never shirks the duty of instructing the public and putting things straight.

He is particularly elated—‘‘as one that findeth great

spoil”—when he succeeds in discovering errors in the

judge’s speech or in the written verdict; of course, he loses no time in apprising the magistrate of his errors. One day I had the singular honor of receiving a per-

sonal letter from him. The letterhead carried the motto:

“Guard our tongue from injury, and thy lips from doing

15

Courthouse Personalities

list evil to the Lord.” The letter itself contained a long had I which of pen the of of errors, near-errors and slips allegedly been guilty in a written decision. It concluded several adwith these words: “I refrain from mentioning

not ditional words and phrases that, in my opinion, were

precise and could have given rise to misunderstanding

(which I am sure was not your intention) ; I leave this until I have the opportunity, which I trust Your Honor

the will extend to me, of discussing with you personally

general problems of our language as used in legal ver-

dicts, and especially in the above-mentioned verdict . . .” While I was still trying to decide how to reply to this

answer epistle, the writer came to the court to receive his

from me directly. The timing of his visit was not con-

venient for any lengthy discussions, and I thought to put him off with an answer in the nature of: “Remove first the beam from your own eye.” In brief, I said to him, “Before you correct the mistakes of others, make sure

you have corrected your own. For example, in your letter you wrote hameshet hashurot (‘the five lines,” using

the masculine form of ‘five’) when everyone knows that

the word shurah (line) is feminine, so that you should have written hamesh hashurot.” But the good man was

not in the least taken aback by my words. With a smile

he

answered,

“But,

Your

Honor,

that

is not

a mis-

take . . .” And as he spoke, he took the Bible from the

witness stand, opened it and triumphantly read aloud the fourth verse of the first chapter of the Book of Job: ‘And his sons used to go and hold a feast in the house of each on his day; and they would send and invite their three sisters (sh’loshet ahioteihem) to eat and drink with them.” His eyes sparkling with joy, he exclaimed, “Tf it is possible to use the masculine form (sh’loshet) in

16

SCENES

IN

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COURTROOM

reference to sisters, why can’t I use it in reference to lines?” With that my arguments against this learned Jew came

to an end,

Now to return to our subject. I stated previously that

to this third category of visitors belong those who have some special interest in a particular kind of case, civil or criminal, It may be a tenant who is being harassed by his landlord, or a landlord who sees his rights trampled underfoot by his tenant, and who is trying to decide whether or not to bring his case to court for settlement. They, too, wander

into the courtroom to see what help

they may expect there. They are naturally interested in trials and complaints involving questions of tenancy, and in disputes between tenants and landlords. As they

sit in the courtroom, they make every effort to under-

stand the background of the case being tried. A smile hovers on their lips as they listen to the testimony of the witnesses, as much as to say, “Life is the same all over.

And such say, they was

I thought that only my landlord (or my tenant) is a villain.” Frequently you may hear a plaintiff quite naively, ““A few weeks ago | was in court when were trying a case just like mine, and the verdict for eviction. So I think it is only fair that you give

me the right to evict my tenant, too...”

Or a man has received a summons to appear as a witness, and awe of the court overcomes him. He has never even crossed the threshold of a courthouse before, and he dreads his first appearance there: he does not know how a witness conducts himself when he stands up in the witness stand for all to see—and how can he be certain

that he won’t become confused while testifying? Such a

Courthouse Personalities

17

novice will visit the court for several days before he is

due to appear, so as to become acclimated to the judicial

atmosphere. These visits are a form of exercise for gain-

ing self-confidence, a dress rehearsal before the opening

performance. In this last category I also include the reporters and journalists, whose sixth sense always leads them to the courtroom just when the court is about to take up a case of interest to the general public because of its novelty, its human interest, or its sensational aspects. These rep-

resentatives of the Fourth Estate sit among the crowd, or in the seats reserved

for them, and

feverishly take

down in their notebooks the progress of the trial or their

impressions of the testimony of the witnesses and principals.

This miscellaneous third group makes up the vast

majority of the audience at any trial, and every experienced judge will tell you that when he enters the courthouse in the morning and examines the people gathered in the corridors, he can immediately tell what kinds of case he will have to decide that day. And, in reverse,

when he looks through the trial docket for the day, he can easily guess, even before he begins the proceedings, what type of audience he will face that day.

A very important and interesting role is played by one regular type of visitor, whom I shall call “MosheChaim.” This visitor, who finds his way into the courtroom very frequently, is a most interesting phenomenon and deserves special consideration. I shall therefore de-

vote the next chapter to him.

TWO

Moshe-Chaim, a Courtroom Regular Moshe-Chaim is a unique member of the courtroom cast.

He is not a part of the official machinery of the courts,

nor does he belong to any governmental body that is di-

rectly or indirectly concerned with the administration of

justice. Yet it is difficult to imagine any case being tried without his presence in the courtroom. Who, then, is Moshe-Chaim, and just what is his function in court? Actually, Moshe-Chaim is not one person, but a symbolic composite. He comes to court regularly—not because he has any business there, but simply to observe with his own eyes how the problems of everyday life are revealed before the law. He may be a learned man who in

earliest childhood had been familiar with the intricacies

of talmudic law: for him the legal disputation brings back long-forgotten memories; he may be an elderly man who

had worked all his life and now has retired from busi-

ness, lives on a pension and basks in peaceful leisure;

he may be an ambitious man in the prime of life who

has an independent income, a good deal of free time at his disposal, and aspires to public office; or he may be just a simple Jew for whom the gates of knowledge have I8

Moshe-Chaim, a Courtroom Regular never been opened, higher things.”

but whose

soul

19 yearns

for “the

Moshe-Chaim is not partial to any one subject, nor is

his interest limited to any particular protagonists of the courtroom drama. A civil suit, a minor misdemeanor or

a serious criminal charge; a case involving paupers,

middle-class people or the very rich; a trial handled by famous lawyers, by unknown novices or by the dispu-

tants themselves without legal counsel—Moshe-Chaim is interested in them all. From the moment he enters the courtroom to the moment he leaves, he follows every word and phrase with undivided attention and obvious satisfaction.

The various Moshe-Chaims do not make their appear-

ance all together or at any given time. Every MosheChaim has his hour. One comes before the doors are opened; another soon thereafter; a third appears just before the morning intermission; and a fourth arrives at noon and stays until the end. One Moshe-Chaim leaves and another takes his place, but never—neither in the summer nor during the rainy season, neither in the morning hours nor at closing time—is the court in session without the presence of at least one Moshe-Chaim. Were

he absent, a basic something would be lacking to com-

plete the picture; when he is present, all is in order— the proceedings can take their course. As soon as Moshe-Chaim takes his seat in the courtroom, he is surrounded by his cronies and friends, First one sits down at his right. A few minutes later, a second quietly leaves his seat, tiptoes across the room and finds a seat at his left. A third sits down in front of him, and a fourth in back. And so Moshe-Chaim sits—a bride-

groom surrounded by his friends, beaming and selfsatisfied.

20

SCENES In other ways,

IN

THE

COURTROOM

too, our Moshe-Chaim

is utterly un-

like the other visitors who fill the courtroom, those who just drop in. He does not merely listen: he is himself

wholly involved in the contest taking place before his eyes. Every step of the case is faithfully mirrored in the gleam of his eyes, the expressions of his face, the move-

ments of his body. A lawyer is questioning a witness on the stand. If Moshe-Chaim raises his eyebrows and bites his lips, while his face assumes the shape of an elongated question mark, it means that he has not fathomed the lawyer’s intentions—the purpose of the question is not

clear to him. In his eyes you may read a silent appeal: “Just what is he trying to prove?” At this moment

Moshe-Chaim is like a spectator at a chess game who does not understand a move made by one of the players. But when a smile spreads over his face, his head bob-

bing quickly up and down, when his lips part slightly

and his glance is directed straight at the witness, then you know that the question has hit home, and he is eager to see just how the witness will extricate himself from the net spread for his feet.

As for the witness—if he answers the questions halt-

ingly and with nervous twitchings of his body, his eyes

frightened and lusterless, then Moshe-Chaim throws him

a contemptuous look and shakes his head slowly, like the

pendulum of a grandfather clock—back and forth, back

and forth. This is a clear sign that Moshe-Chaim has grave doubts as to the witness’ trustworthiness. You can almost hear him say: “Fool that you are, who’s going to believe your fairy tale? Where did you find the audacity to stand up in the hall of justice and tell such a pack of lies? Mortal creature, remember before Whom you stand!” But if the answers are given calmly and with self-confidence,

Moshe-Chaim

leans back with satisfac-

Moshe-Chaim,

a Courtroom Regular

2i

tion, folds his arms and smiles broadly. The meaning: “The fellow has saved himself in the nick of time. That’s what I call testimony!” Sometimes, as he hears the answers, Moshe-Chaim makes a grimace, closes his eyes, bends his head and

shakes it rapidly back and forth like one seized by a convulsive spasm, throws his hands up in despair—and

you know that, in his eyes, all is lost. His lips mumble and all his being cries out: “Wretch, you’ve just ruined the entire case! All the angels of justice and mercy

couldn’t save it any more .. . O you blundering fool!” Then there is the equivocating witness, whose answers

may be construed as favorable to either side. That is the kind of witness that Moshe-Chaim especially detests. “Whichever side you’re on,” Moshe-Chaim inwardly says to him, “once you’ve accepted the summons and have come here to testify—for which you deserve our gratitude—it’s only right that your answers be short and clear: ‘Yes’ or ‘No’! Don’t try to straddle the fence. What

do you mean by ‘Maybe,’ ‘Perhaps,’ ‘That’s possible too’

or ‘I don’t remember’? This isn’t a game. If you really can’t be of help, kindly stay at home and don’t come here to confuse the judge and the jury.” No, such testimony does not impress Moshe-Chaim at all. When the witness

at last leaves the stand, Moshe-Chaim follows him with a

look of withering scorn and shakes his head, as if to say:

“‘Good-for-nothing, why did you waste the court’s precious time?” It happens at times that a witness appears to testify but refuses to be sworn in. He explains that his refusal is based on religious scruples. Moshe-Chaim smiles sarcastically, his eyes shooting fiery sparks. His meaning is clear: “What’s the use of telling such lies? I can see

22

SCENES

IN

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COURTROOM

right through you, hypocrite and pork-eater that you

are!”

Yet Moshe-Chaim

may be known not only by his

anger, but also by his kindliness. His virtue is not merely

a matter of words; it finds tangible expression in deeds

of charity and compassion. Once a beggar was sentenced to pay a fine or spend several days in jail. The poor man pleaded for mercy: he didn’t have a single prutah in his pockets—how could he pay the fine? And if he went to jail,

who would provide for his wife and children? Moshe-

Chaim was moved. How can a Jew sit by quietly while a fellow Jew is threatened with imprisonment? Immediately he began to appeal to the conscience of the courtroom audience, at first only with mute looks and then with whispered words, and a shower of coins, small and large, began to fall into his outstretched hand. Adding his own contribution, he counted the coins and with a

beaming countenance—like one conscious of fulfilling

the noble commandment of “ransoming the captives”— he took the beggar’s hand and led him to the cashier to pay his fine.

Nor is Moshe-Chaim without worldly wisdom. Imbued

with a sincere and entirely altruistic desire to be of help, he makes use of his knowledge and at times even assists

the actual proceedings of the court. How? Why, Moshe-

Chaim is an educated man and a linguist—that is to say, he speaks at least one European or Oriental language in addition to Hebrew. When a witness or one of the litigants knows no Hebrew, and the appropriate interpreter does not happen to be present in court, Moshe-Chaim immediately volunteers his services. With great dignity he ascends to the witness stand, places his hand on the

Moshe-Chaim, a Courtroom Regular

23

Bible with the ease of an expert, and swears to translate

faithfully and to the best of his ability from Hebrew to the foreign language and vice versa, so help him God. Then he looks around the audience and his expression

seems to say: “I too am now an important cog in the machinery of the law.”

But Moshe-Chaim is not merely one of your dime-a-

dozen interpreters. He is also a teacher and a guide to

inexperienced witnesses. He does not wait for instruc-

tions from the judge: no sooner has the witness reached

the stand than Moshe-Chaim falls to his work. First of all, he instructs the witness: “Stand up straight. Take your hands out of your pockets. Put on your hat. Place your hand on the Bible and swear . . .” The witness

obeys Moshe-Chaim’s directions without uttering a word.

Then Moshe-Chaim tells him to remove his hat, listen to

the questions and answer, briefly and clearly. And Moshe-Chaim’s translation is not simply a dry, literal echo of the testimony. He explains, clarifies, argues—in short, throws his whole being into this task,

polishing each word and putting it in its proper place. In

the midst of translating he carries on a lengthy conversation with the witness in his native language. When asked to translate the dialogue, he answers, ““The witness claims

that he doesn’t remember, and I’m trying to persuade him to remember.” Right then and there he also imparts a bit of advice to the judge. “You have to know how to deal with these people . . .” One tries to explain to Moshe-Chaim, gently but firmly, that his task is limited to translating what has been said, and that he may not carry on personal conversations with the witness. MosheChaim nods his head in agreement, signifying that now he understands exactly what he is supposed to do.

But a man like Moshe-Chaim cannot be satisfied to

24

SCENES

IN

THE

COURTROOM

remain a mere mouthpiece. The witness answers one ques-

tion at great length, yet Moshe-Chaim translates his answer simply as “No.” The interrogating counsel is sur-

prised and asks, “How’s that? How many words does he

have to use in his language just to say ‘No’?” Moshe-

Chaim answers calmly—like a man who knows whereof

he speaks—“The witness said a lot of things that have nothing to do with the question. The answer to your ques-

tion is ‘No’; all the rest of the things he said were irrele-

vant rubbish.” One again explains to Moshe-Chaim that he is not there to criticize or interpret the words of the witness, but simply to translate, and that he must there-

fore repeat the testimony in its entirety. For a little while Moshe-Chaim follows instructions and the testimony proceeds as sentence of translation for every sentence in But soon there is another stumbling block.

answers,

but Moshe-Chaim

the judge’s it should—a the original. The witness

does not translate;

instead,

he continues to ask questions; the witness answers again

and Moshe-Chaim asks more questions; he appears to be growing angry and raises his voice. The witness too seems to be losing his temper, for the foreign words gush forth

ever more rapidly, like nuts falling from a torn sack, and

among them are heard many exclamations of surprise. “Hold on, Moshe-Chaim, what’s going on here? What did you say to the witness and what did he say to you?” And Moshe-Chaim answers with undisguised disgust,

“What kind of witness is he anyway? He said that he had already answered the same question many times, and what more do we want of him. So I said to him: ‘The lawyer probably has good reasons question.’ So he said: ‘Why, doesn’t he he think I’m a liar?’ And I said: ‘In that is to say, in his language—‘there

for repeating the believe me? Does our language’— is a proverb that

Moshe-Chaim, a Courtroom Regular

25

says: Whoever knows himself to be innocent is not afraid of what others think.’ So he said... And then I said...” Poor Moshe-Chaim! Inspired by the most sincere devotion to the cause of justice, he has nevertheless over-

stepped the bounds of his authority. He has set himself

up as judge, prosecutor and witness—all in one. It is

impossible to continue to accept his services. The judge

thanks him for his good intentions and sends him back to his seat. Moshe-Chaim feels that his mission has been accomplished. He looks back once more at the witness

stand and shakes his head with an expression that says clearly: ‘‘And I still maintain that he can’t be trusted. Remember that I warned you—I don’t believe a word he says.” And slowly he returns to his seat. Another Moshe-Chaim takes his place .. .

Moshe-Chaim’s attitude toward the presiding judge is a very special one. It is a feeling of reverence such as cannot readily be expressed in everyday language. Every syllable pronounced by the judge is sacred to him; he is at all times prepared to efface his own will before the decision of the court. Should the judge but raise his head from the pile of papers before him to look, with a slight sign of annoyance, at two or three individuals who are whispering to each other, Moshe-Chaim immediately rushes to his aid; he commands the talkers to be silent, prohibits standing in the doorways, tells a newcomer to remove his hat, points out vacant seats to those who are standing, and opens and closes doors and windows while

the court clerk is occupied with other things. Should the judge tell a joke or quote a proverb, a smile of satisfaction spreads over Moshe-Chaim’s beam-

ing face. He turns around and nods to his neighbors, as

26

SCENES

IN

THE

COURTROOM

if to say: “Well, how do you like our judge? His lips drip honey!” When a long drawn-out word duel takes place between

lawyer and witness, Moshe-Chaim stares at each in turn,

unable to make up his mind as to who is in the right. But soon the judge asks a question that penetrates to the core

of the issue, and Moshe-Chaim’s face lights up. A gentle smile of satisfaction hovers on his lips, and he settles back in his seat. One can almost hear him say: “Now there’s a question that clears up everything. A Solomon come to judgment .. .” But Moshe-Chaim’s finest hour comes when the judge

declares that he is ready to render his verdict. Now he turns to his neighbors to the right and to the left, whispers to them, expresses his opinions and ventures his guess as to what the judge’s decision will be. His smile

says: “You'll see . . . you'll see that I am right.” While

the verdict is being read, Moshe-Chaim cups his ears so as not to miss a word; he is all attention. Woe to anyone

who now dares to whisper or to move! If Moshe-Chaim’s looks could kill, the offender would

be turned

into a

mound of ashes on the spot. Once the reading is over, Moshe-Chaim

heaves

a sigh of relief, as if a heavy

burden has been lifted from his shoulder. He turns to

look

at the rest of the audience,

wrinkles

his brow

slightly and folds his arms across his chest. “What did I tell you? Didn’t I predict it exactly?” Only rarely does a verdict fail to live up to MosheChaim’s expectations. Usually he and the judge are in complete accord. But when the extraordinary does occur and the judge’s decision contradicts his own, then MosheChaim is deeply disturbed and his thinking becomes confused. A mask of sorrow suddenly covers his face: his

eyes dim, his lips compress, and he directs a look of

Moshe-Chaim, a Courtroom Regular

27

mute accusation at the judge: “How could you do this to

me, your loyal friend Moshe-Chaim? With one blow you have undermined my prestige. What will people say?” But a few minutes later he again musters his courage, lifts his head high and stares straight ahead, as though seeking inspiration from the infinite. Suddenly his brow

is smoothed, his face relaxes and his head begins to bob

up and down, at first slowly and then with growing ex-

citement, like someone to whom things are all at once

becoming clear. The meaning: “Of course . . . I was wrong and the judge was right. Of course, the judge was

right all the time.” And as though he wanted to apologize and atone for his error, he nods to the neighbors whom

he had misled and motions te them to follow him outside. There, in the street, he will go over the case again and explain the difficult law in all its details and complexi-

ties, so that they too may understand that the judge really

was right. In Moshe-Chaim’s eyes, the judge is always right... .

Yet it happened once that Moshe-Chaim himself ran

afoul of the law and was summoned to court. It was a small offense—one of those minor misdemeanors of

which hundreds of peaceful, law-abiding citizens were

guilty in the days of the emergency regulations of World War II. The presiding judge, as was his duty, asked Moshe-Chaim whether he wished to be tried before a British (rather than a Jewish) judge, a “privilege” guaranteed by the Mandate government. Deeply insulted, Moshe-Chaim stared at him with outraged astonishment. “What kind of question is that? Would I, MosheChaim, choose to be tried by a Gentile?

Clearly, Your

Honor does not understand what kind of man I am.”

SCENES

28

IN

THE

COURTROOM

“Do you plead guilty to the charge?” continued the

judge, still following standard procedure.

Now Moshe-Chaim began to search the pockets of his overcoat, fished out a bundle of papers covered with penciled notes and spread the papers on the table reserved for the defense counsel. “Moshe-Chaim, what is all this?” asked the judge, astonished. A meaningful smile appeared on Moshe-Chaim’s

face as he answered, fense ...”

“This is my brief for the de-

For Moshe-Chaim had been an attentive pupil. Not in

vain had he been present in court while famous lawyers examined the law, revealing its hidden meanings and clarifying its confusions. His ears had been glued to the words of wisdom, and the words of the law had entered

his very blood. Like the proverbial maidservant of the

rabbi, he too was prepared to expound the law, even in

the presence of the mighty.

“Moshe-Chaim, speak up!” demands the judge.

“First of all,” Moshe-Chaim’s opening remarks are exactly like those of the best lawyers, “I wish to present several preliminary arguments.” (These that do not deal with the subject matter of but are intended to invalidate the charge external flaws in its form or language.)

are arguments the complaint, on the basis of Moshe-Chaim

proceeds to read his notes: “I contend that the charge is

invalid because it was not signed by the judge, and the

law clearly specifies that the judge alone is empowered

to sign it. At the moment, the exact paragraph escapes me, but the courts have always ruled that a charge not signed by the judge is null and void.” He is right. The law does require the judge to sign the

charge, and the courts have often ruled that without this

«

Moshe-Chaim, a Courtroom Regular signature

the charge

is invalid.

But

29 fortune

does

not

smile upon Moshe-Chaim. He repeated an argument used successfully by experienced lawyers, but he missed one small detail: the charge against him was quite properly and legally signed by the judge, and his argument is without a basis.

But Moshe-Chaim does not lose heart easily. Has there

ever been a shortage of preliminary arguments? Many

hours in court have taught him that preliminary arguments never

come

singly,

but always

in threes

or, at

least, in pairs. He continues to read his notes: ‘Secondly,

I claim that the ordinance I am accused of violating is

null and void, and has no legal force.”

Now

what’s

up?

What

is Moshe-Chaim

babbling

about? Why, this ordinance has been on the statute books for months! But Moshe-Chaim, undaunted, is prepared with an explanation. “According

to the law,”

he continues,

“every

ordi-

nance must be signed by the chief executive in person; but the ordinance I am accused of violating was signed only by the executive secretary of the government. It is

therefore invalid and cannot be used as the basis of an indictment against a loyal citizen.”

Moshe-Chaim stops reading and turns to the public

with a look of self-confidence and satisfaction, as if to

say, “When it comes to questions of law and justice, I

know what’s what.” Then he turns expectantly to the judge, awaiting his decision. What is the prosecutor’s answer to this contention?

He tries to brush it aside. “What kind of argument is

that?” he asks contemptuously. “The accused is no lawyer—how does he know who can sign an ordinance and who can’t? Secondly, the whole affair is so trivial it simply is not worth all this fuss. Hundreds of people

30

SCENES

IN

THE

COURTROOM

have already been indicted on the basis of this law, and

no one has ever used this defense. Why should the defendant be different from everyone else?” But no, Mr. Prosecutor, the judge cannot agree with

you. ““Moshe-Chaim has his rights as a citizen, and when

he is accused it is his privilege to use any defense he deems proper. You cannot invalidate his argument by

mere rhetoric; you have to have an answer. What is your opinion as to the actual substance of the claim?” Moshe-Chaim takes pleasure in the judge’s words. After all, this is a matter of principle. If the chief executive himself is supposed to sign, why should somebody else sign for him? And, in truth, should a man like Moshe-Chaim be punished on the basis of the signature

of a mere executive secretary? The prosecutor has no more to say. He leaves the decision in the hands of the court.

But again Moshe-Chaim’s luck does not last. This

same argument had already been used in several cases,

and the courts held that the executive secretary’s signa-

ture can in certain cases be accepted in place of the chief executive’s. Moshe-Chaim had not heard of this decision.

Still hopeful, however, he continues to read from his

notes a whole series of countercharges—against the language of the complaint, the form of the summons, the authority of the prosecutor, the jurisdiction of the police precinct that lodged the complaint, and so on and so forth. But to no avail. And again, when he attempts to challenge the substance of the charge, the court rules

against him. By the time the prosecutor begins his sum-

ming up, Moshe-Chaim feels that his doom is sealed. All his efforts have been fruitless and now he stands there,

abashed and confounded: his head seems to shrink be-

tween his shoulders and the gleam is gone from his eyes.

Moshe-Chaim, a Courtroom Regular

31

When asked whether he has anything further to say in

his own behalf, he becomes nervous. He buttons and unbuttons his jacket; he puts his hands into his pockets and takes them out again; he folds his arms across his chest

and a minute later drops them and lets them hang at his sides, not knowing what to do with them. Then he begins

to fuss with the bundle of papers in his hand. And all

this while he has been mumbling words and phrases without connection or logic. The ultimate humiliation!

At the critical moment, when his own fate hangs in the

balance, Moshe-Chaim cannot find the proper words! His

voice begins to break, his words are almost inaudible, and suddenly they seem to stick in his throat and he re-

mains silent. He stands before the judge like a beggar,

trembling and frightened, and cannot bring forth another word.

After a few moments of deliberation, the judge pro-

nounces the verdict. Moshe-Chaim is guilty and has to pay a fine or spend several days in jail. When MosheChaim hears the sentence, he seems about to sink into the

ground. It is obvious that he has been deeply hurt and

is ashamed to show his face. As he leaves the dock, he casts one last look at the judge that seems to say: “Look

down and behold what you have done to your loyal servant, Moshe-Chaim. And who more than you, O judge,

knows that Moshe-Chaim should not be numbered among

the guilty?”

While the judge is already looking through the files

of the next case, Moshe-Chaim

steals silently out of the

courtroom, on his way to the cashier’s window to pay his fine. After this incident Moshe-Chaim disappears from the courthouse. Weeks pass and his customary seat remains

unoccupied. No longer does he expound and explain the

32

SCENES

IN

THE

COURTROOM

law to his neighbors. His friends and cronies—‘MosheChaims”

like himself—ask

each other what has hap-

pened to him. No one knows where he has gone.

But anyone who thinks that this small incident has permanently estranged Moshe-Chaim from the courtroom, clearly does not yet understand of what sort of stuff

this Moshe-Chaim is made. One fine day Moshe-Chaim is again seen in the doorway of the courtroom. A few

minutes later he enters the room, on tiptoe and with his head bent low; but as soon as he reaches his seat he straightens out, turns around, smiles and nods as he

recognizes his friends. His eyes sparkle again. He looks

at the lawyers, examines the witness who is at that mo-

ment occupying the witness stand, furrows his brow as he seeks to grasp the subject under discussion, and at last looks straight at the judge, as if to say: “Now at last

I know that no one can truly understand the workings of

the law until he himself has stumbled into error.” Again he accompanies the progress of the trial with the shaking of his head and the gesticulations of his hands; again he

tums around to wink meaningfully at his neighbors; again he discusses the law and explains the verdict.

Nothing has changed...

THREE

On Taking an Oath If our friend Moshe-Chaim is a true courtroom fan, a far larger segment of our populace seeks at all costs to avoid

any direct contact with official justice. Thus anyone who

has had any legal experience knows how difficult it usually is to persuade witnesses to come forward to testify, even when their testimony is vital to the solution of a case. The following two incidents illustrate the prevailing attitude:

A traffic accident occurred at a busy intersection—at

the corner of Allenby Street and Rothschild Boulevard in Tel Aviv, for example. An elderly woman was run down by a truck during the noon hour, at a time when throngs of people were passing by. Hundreds stopped to

look; many argued heatedly about what had actually

happened; some indignantly blamed the carelessness of the driver or the absentmindedness of the victim; others complained about the failure of the municipal authorities and the police to maintain adequate supervision at such a dangerous spot. Yet a few days later advertisements in the newspapers pleading for eyewitnesses of the accident to appear in court brought no response. All

34

SCENES

IN

THE

COURTROOM

the hundreds of passers-by had seemingly vanished into

thin air. Or take the case of the young man whose girl friend had wearied of his attentions and refused to see him any more. Seeking vengeance, the jilted lover awaited an opportune moment. Once, meeting the girl on a busy street,

he fell upon her and began to beat her. In the ensuing

struggle, he bit her nose until it bled. He was arrested for assault and battery. Among the witnesses called was a young fellow who had been standing near by. When questioned in court, the witness refused to admit that he had

seen the incident. The prosecutor grew angry and thundered:

“‘Were you on that street at the time?”

“Ves,”

“Did you see the girl?” “Ves,”

“Did you see the man?” “Ves,”

“Did you see him hit her?” “No.”

“What did you do—close your eyes?” ““No—but I turned my head the other way.”

“Why did you do that?” “Because I immediately saw az es shmekt mit eydus zogn.”

This Yiddish phrase (‘““Because I saw at once that the

whole affair smelled of the courtroom”) epitomizes a general reluctance that has several bases: the many hours of waiting for one’s turn which result in loss of working

hours as well as physical and emotional discomfort;

the deeply ingrained feeling against becoming the cause of punishment or imprisonment for a fellow man. But there is also a sizable minority who avoid coming to

On Taking an Oath

35

court for another reason: the requirement of taking an oath. And here we touch upon one of the most interesting

phenomena revealed in our courts—the Jewish attitude toward the oath.

Now, the oath is an ancient legal institution that is found among most peoples and religions. Its primary purpose is to bring the swearer into a closer contact with

those divine or mystic powers in whose omnipotence he

believes, so that they may guarantee the fulfillment of

the promise made or the punishment of him who violates it. In ancient times the oath served chiefly as an instrument for guaranteeing the fulfillment of a covenant, such as that between Isaac and Abimelech, or between Jacob and Laban; or to assure the carrying out of some special request, such as Eliezer’s promise to Abraham to bring a wife

for

Isaac

from

Aram-naharaim,

and

the

oath

taken by the Israelites to bring Joseph’s bones to their eternal rest in the Land of Canaan. In a less solemn form, the oath was used in common speech to add a certain seriousness and weight to statements, such as “as Pharaoh liveth, surely ye are spies” (Genesis 42.16) or the oath of Joab to David after the death of Absalom: “For I swear by the Lord, if thou go not forth, there will not tarry a man with thee this night” (II Samuel 19.8). In courtroom usage the oath has become a means for securing the revelation of truth. As one expert on jurisprudence explained, experience has shown that in most instances witnesses who have taken an oath seem to feel

compelled by some outside power to tell the truth. The

oath is thus a religious rite that has become universally

accepted, and before a witness can testify in court he is

36

SCENES

IN

THE

COURTROOM

in almost every case required to give some assurance that he will tell the truth. This assurance usually takes the form of an oath or a solemn declaration, in the forms

prescribed by the law.

The oath itself is accompanied by certain ceremonies that are intended to envelop the witness in a supernatural atmosphere that will induce him to live up to his oath. In our courts it is the custom to place three holy books

on the witness stand, one for each of the major religions: the Holy Scriptures in Hebrew,

for Jews; the Old and

New Testaments in English, for Christians; the Koran in

Arabic, for Moslems. The witness places his hand on the

book that is holy to him or holds it in his hand—if he is a Jew, he also covers his head—traises his other hand

with the palm turned outward and repeats the customary

phrase: “I swear that the testimony I am about to give

will be the truth, the whole truth and nothing but the truth; so help me God.”

The reason for placing the hand on the book is that it

brings the witness into direct physical contact with what is holiest to him; the custom of raising the other hand is thought to have its origin in the oath sworn by Abraham before the king of Sodom—‘T have lifted up my hand unto the Lord, God Most High, Maker of heaven and earth” (Genesis 14,22). Another theory traces the raising of the hand to an Anglo-Saxon tradition: according to the old English law, not everyone was admissible as a witness; among those disqualified was anyone who had been convicted of a crime. Criminals were branded with the letter ““F” (for “felony”) on the palm of the right hand. The witness therefore had to raise his right hand

37

On Taking an Oath

to demonstrate to the court that he was not so marked and was eligible to give evidence.

One of the perplexing problems that faced the courts

during the long process of evolving courtroom procedure s was that of the atheist who admits to no religious belief whatever,

as well as the adherents of sects that do not

acknowledge an omnipotent god but worship various

on other divinities. For a long time the accepted positi

was that such an individual was in fact not eligible to be a witness,

unless he consented

to take

an oath in the

name of God. Support for this view was found in the

Bible—for example, in Deuteronomy 6.13-14: “Thou

shalt fear the Lord thy God; and Him shalt thou serve,

and by His name shalt thou swear. Ye shall not go after other gods of the people that are round about you.”

Again, in Psalm 36, there is this reference to the wicked

who does not fear God: “The words of his mouth are iniquity and deceit . . . he abhorreth not evil”; and in Psalm 115: “But our God is in the heavens . . . their

idols are silver and gold, the work of men’s hands . . .”

But there was a minority opinion that insisted on every man’s right to take an oath in accordance with his own conscience and not to be compelled to swear by something he does not believe; this argument, too, drew

its support from the Bible; for example, in the covenant

between Laban and Jacob, Laban swore by the gods of Nahor, while Jacob swore by the Fear of his father

Isaac. Eventually the more liberal interpretation prevailed and it became accepted that it was proper to permit each person to take an oath according to the customs of his own people and his own religion, or in any other form that he would consider binding upon his conscience.

38

SCENES

IN

THE

COURTROOM

In the courts of ancient Israel, witnesses were not re-

quired to take oaths; instead, they were “taken into the court and were admonished” (Sanhedrin 29a). What form did this “admonishment” take? In civil cases, they were told that “because of false witnesses the rains are

withheld, and even though the sky may be overcast with

clouds and the winds blow, the rain will not fall.” Another version went as follows: “Because of false testimony pestilences break out, for it is written: ‘As a maul,

and a sword, and a sharp arrow, so is a man that beareth

false witness against his neighbor’ ” (Proverbs 25.18). In criminal cases the witnesses were told: “Know ye that

a criminal case is not like a monetary case; in monetary

matters, a man may pay damages and thereby atone for

his sin-—but in a matter of criminal violence, his life and

the life of his descendants is forfeit forever” (Sanhedrin

37a). The parties to a dispute, however, were required to take an oath. The form of the oath differed in different periods. Thus, in the Scriptures we find the raising of

the hand toward heaven, as well as placing the hand

under the thigh of him who administered the oath. In the talmudic era the court would warn the swearer as to the solemnity of the oath and the severity of punishment for false testimony. He was also required to hold some sacred object while swearing, such as a Torah scroll or his phylacteries. In documents of the Middle Ages we find the following references to oaths: “She swore by the Ten Commandments”;

“I swore by the oath of the Torah”;

“Tt was sworn before us while holding a Torah,” and

80 on.

Rabbi Manasseh ben Israel (Holland, 17th century), in his book Vindications of the Jews, enumerates all the arguments that prove it impossible for Jews to use

39

On Taking an Oath

Christian blood in their ritual as had been charged by their enemies and, after a complete logical analysis of

his subject, adds:

And if all that has been said above does not suffice to remove the accusation, I am compelled to resort to one other form of proof, which God himself has appointed, namely, the oath.

I therefore

swear,

without

malice

or

deceit,

m

the

name of God, the Most High, Creator of heaven and earth, who gave the Torah to His people Israel on Mount Sinai, that I have never seen such a custom among the people of Israel, and that there is no such commandment in our laws, nor any such ordinance decreed by our sages. And if my words are not truthful, may all the curses that are listed in the books of

Leviticus and Deuteronomy befall me; may | not live to see the redemption of Zion nor be worthy to be present at the resurrection of the dead...

Such solemn oaths were taken only as a last resort in

an extreme situation. To this day, there remains a deep-

seated opposition on the part of many Jews—outspoken

freethinkers as well as the most pious—to taking an oath. The orthodox and the non-believer alike will use

every subterfuge in order to avoid it. An argument frequently heard is: “This is the first time in my life that I have even been inside a court.” Or, “I have never yet

taken an oath; why should I start now?” This argument, however, does not suffice to free the witness from the ob-

ligation of taking an oath. He has to convince the court

either that he really has no religious beliefs, or that taking an oath is indeed a violation of his religous prin-

ciples. One

orthodox

Jew,

a respected

businessman,

was

asked to take an oath. Astonished, he said to me, “Why,

in Barclay’s Bank they trust me with thousands on my

signature alone and here, for a few pitiful pennies, I

40

SCENES

IN

THE

COURTROOM

am to take a solemn oath?” Another devout Jew refused to be sworn. When I attempted to explain to him that he

was expected to attest only to what was true, he began a long exegesis of the commandment “Thou shalt not take

the name of the Lord thy God in vain” and proved that it referred even to truthful oaths.

This was a learned man, who was able to cite the say-

ings of the sages to support his argument. But the same opposition to swearing prevails among the less educated,

the simple people who cannot explain their motives logically. When one seeks to understand this attitude, one begins to unearth a still fermenting folklore that orig-

inated far back in the life of our people and has taken

root there, in the background of the national consciousness, for hundreds of years. Thus one working man refused to take an oath because—he said—it is written in the holy books that hundreds of cities were destroyed for the sin of swearing. When asked to name at least one of these cities, he re-

plied resentfully, “Was I called here to take an examination?”

An old woman explained her refusal to take an oath thus: “Even Judah, the righteous, who swore a truthful oath (that he would bring back Benjamin to his father Jacob) could find no repose in the grave until Moses interceded for him.” When asked to cite her source, she answered simply, “That is what I was taught.” Another old woman, when told to take an oath, smiled

at me with a motherly smile and said, “If you only knew

who I am and who my parents were, you would believe me without an oath.” One venerable Jewish woman said quite simply, “Nu, I ask you—would I, a woman of

eighty, come to court te tell lies? Do you think I have

nothing better to do at my age?”

On Taking an Oath

4l

The fear of taking an oath is especially strong among the Oriental Jews. Once an eastern Jew was called to

appear as a witness, and before I had had the time to instruct him to take an oath, he quickly said to me, “Your Honor, my wife said: “Tell the judge that we are

Bukharians, not Ashkenazim (European Jews), and with

us Bukharians oaths are not like potatoes.’ ” In other words, an oath is not a cheap commodity to be treated

lightly. Another Oriental Jew, a tailor, when told that he

must swear to tell the truth, pleaded piteously, his voice trembling: “Your Honor, I have only one son. Maybe I'll

say one word too little or one word too much, and it

won’t be the whole truth. I can’t take chances with the life of my only son.” A young man who appeared in court as a plaintiff,

when asked to take an oath, pulled out of his pocket a

document signed by the defendant in which the following condition had been explicitly stated: “Should a dispute

arise between the parties to this contract, they mutually

agree that they will not require each other to take an oath in court.” When asked whether he was an orthodox Jew, the young man replied in the negative, but added: “My father was a rabbi in Czechoslovakia; he left us no mate-

rial legacy, but before his death he made us promise that we would neither take oaths nor be the cause of others taking oaths. I honor this last request made by

my father, and whenever

I sign a contract IT include a

clause to that effect.” It seems to me that this fear of taking an oath has become so deeply imbedded in the consciousness, if not indeed in the subconscious of most Jews, largely because

of the fearful ceremonial that used to surround the oath

in the Jewish courts of old, especially in the post-tal-

42

SCENES

IN

THE

COURTROOM

mudic era. In one of the responsa of the Gaonic period we find this description of the ritual: It was customary for the cantor to hold a Torah in his arms, or the disputants would stand before an open Ark containing the sacred scrolls; a bier covered with a shroud would be brought in, as well as inflated skin-bottles and burning candles and shofarot; then the students would enter, blow out the candles and break the bottles and say to the accused: “Ploni ben Ploni! If you owe money to the plaintiff and falsely deny it on oath, may all the curses in this book follow you!” Then they would sound the shofarot and all the congregation would answer: “Amen.”

No wonder that such a ceremony frightened most liti-

gants into telling the absolute truth. The ritual has disappeared from our modern courts, but the fear of the false oath has penetrated deep into the soul of Israel. It

is not unusual for a plaintiff to withdraw his charge

rather than take an oath, or for both parties to settle their dispute by a compromise so as to avoid being sworn in court,

Once, in a civil case, the defendant was about to take

an oath to the effect that he owed the plaintiff nothing;

before he had placed his hand on the Bible the plaintiff called out, in a voice trembling with excitement, his face ashen: “Your Honor, a Jew is about to take a false oath,

may God forgive us! I withdraw my complaint. I forgive him everything. I will not, God forbid, be the cause of

another Jew’s swearing to a falsehood!”

In conclusion, I should like to relate an incident involving a very young man. According to the law, the evi-

dence of a child is not valid unless he understands the importance of an oath, its meaning, and the consequences

43 On Taking an Oath it was necesthat may result from false testimony. Once

one of the Yeshivot sary for a boy of eight, a pupil of I asked him whether of Jerusalem, to testify in court. confihe knew what

an oath is, and

he answered

seli-

m swore, Jacob swore, dently, “Of course I know. Abraha Land

him in the Joseph made his brothers swear to bury I then asked him, of Israel . . .” He certainly did know. s an oath and take who “And what happens to someone such a person would then tells a lie?” He answered that

the fires of Gehenna. be punished and would burn in you want to tell a lie, Then he added quickly, “But if Joseph who

like you can swear by the life of Pharaoh,

, and he knew all the swore that his brothers were spies

time that it wasn’t true...”

FOUR

Religious Traditions and Customs Reflected in the Courtroom From time to time the somber, gray atmosphere of the courtroom is briefly illuminated by a spark of that “Jewishness” which we are all too apt to forget in our everyday life. Then suddenly a judge will see standing before him, not a defendant or a plaintiff, not an accuser or an accused, but a devout Jew, ready-——for the sake of his

convictions—to forego a legal claim or to accept punishment without protest. Here is an example of one such case. It is during the solemn days of the month of Elul. Everywhere Jews rise early to attend the penitential prayers. The sound of the shofar is heard from every synagogue and Bet Midrash. Trembling fear and joyful hope grip each heart. The Days of Awe are approaching —days of contrition, repentance and prayer. And in the courtroom stands a venerable old rabbi, summoned to testify against a man who some days ago had attacked him in the street and threatened to beat him unless he surrendered a certain document. The police arrested the assailant and now he is on trial. The rabbi’s answers to the prosecutor’s questions are given slowly, hesitantly, accompanied by deep sighs. The questions become more 4

e

45 Religious Traditions and Customs and more insistent; the rabbi’s whole being seems to plead for mercy: “I forgive him fully, with all my heart ——don’t torture me with your questions!” But the young prosecutor is determined to carry out his task faithfully: the truth must be uncovered, come

what may! Reproachfully he turns to the rabbi. “Why

won't you testify?” Sighing deeply, the old man answers, “The month of compassion is upon us. Each of us pleads for mercy to soften the severe decrees of divine justice. How shall I, at this solemn time, bring accusations against a fellow Jew? I fear the month of Elul.”

The young prosecutor, deaf to this echo of the voice

of another world, reassures him with unshaken self-con-

fidence, “Don’t you worry about the month of Elul—you can depend on me!”

Another incident of this type occurred one day during the war, when the blackout regulations were still in force. The courtroom was filled with an unusually large number of defendants. Among the last to be heard was an elderly man, entirely wrapped in a black cloak. I

read the charge and asked him whether he pleaded guilty or not guilty. He answered with a question, “Your Honor, do you

see any light shining from me?”

Puzzled, 1 looked up from the papers I had been studying. He repeated, “Do you see any light near me?” It was morning. Sunlight was streaming into the room from every window. His question was still unintelligible. Now he opened his long cloak, took out from among its

folds a tiny lantern—like those that little boys in Poland

46

SCENES

IN

THE

COURTROOM

used to carry to the heder on winter mornings when

it

was still dark outside—and began to explain: “According to the law, on the night after Yom Kippur one may not say the blessing (on the separation between the holy day and the weekdays) over any light except one which had been burning since the day before. Therefore it is customary for pious Jews to kindle a lamp

from the lamp in the synagogue, to take home with them. When I left the synagogue after Yom Kippur, I lit my lantern and hid it under my coat, so that no light would be visible. But a little glimmer could be seen through

the cloth, and the Civil Defense patrolman came and

arrested me.” How many memories of the past were awakened in

the judge’s heart by this simple recital.

Every organized social body establishes rules and

laws to regulate dealings between the individual every government assigns ual within its jurisdiction

among its members as well as and society as a whole. Thus a proper place to each individand establishes certain laws—

both “Thou shalt’s” and “Thou shalt not’s”—defining

the rights and the responsibilities of each person toward

the government and toward his fellows. The formulation

of these regulations and the punishment of violators is a right reserved to the government, and to the government only. When an individual takes the law into his own hands, he is violating one of the basic “Thou shalt not’s”

established by every organized community, and himself becomes liable to punishment. These are elementary truths and it might seem superfluous to mention them, were it not that every once in a

while the courts are faced with cases that demonstrate

Religious Traditions and Customs

47

the existence of a different attitude, that of individuals or groups that see fit to take upon themselves the functions of lawgiver, judge and executioner all in one. Many examples could be cited, but I shall here limit myself to those incidents which involve attempts to enforce the observance of religious precepts and traditions, and the difficulties that ensue from such attempts. In short, I shall discuss the problem of the “religious

zealot.”

It seems to me quite natural and understandable that the devout Jew is deeply offended when he see his most sacred traditions openly violated here, in the Holy Land, and that he reacts to such violations both emotionally

and physically. When his religious zeal gets the better of

him, however, and particularly when his methods of re-

taliation in turn violate the law established by the gov-

ernment, then he may find himself in the prisoner’s dock m court.

For example: A man was brought to trial on the charge of placing an obstruction on a public road. During the course of the trial the following circumstances were brought to light:

The plaintiff had been driving his car through one of the

old sections of the city, inhabited chiefly by very pious Jews. It was on a Saturday. Men and women, incensed by this desecration of the Sabbath, lined the street and reproached him for his flagrant disregard of religious law. To no avail: he ignored their wounded feelings and continued on his way. Suddenly one man—the defendant —ran out into the street and lay down on the road, directly in the path of the car, as if to say: ‘“‘Now, if you want to continue driving, you will have to do so over my dead body.” The driver was forced to stop. He left the car and walked to the nearest police station to seek help.

48

SCENES

Zealot

and

transgressor

now

IN

THE

faced

COURTROOM

each

other

in

court. ...

In the past, the spiritual leaders of our people re-

sorted chiefly to spiritual means of coercion, such as the ban and excommunication, to preserve the integrity of religious traditions. But our present-day zealots employ far more direct and forceful methods. There was, for example, the case of the new immigrant in the 1930s who, in looking about for a means of gaining his livelihood, hit upon the idea of raising pigs for sale. The entire Yishuv was startled. One night the air was rent by porcine squeals: the pigsty and all its inhabitants went up in flames. The perpetrators of this deed, too, met their punishment. Defendants in cases such as these are usually able to

cite passages from the Bible and from the writings of the rabbis in support of their actions, and the judge finds

himself listening to a veritable deluge of quotations. Thus there was an elderly man who was charged with assault. Witnesses testified that one Sabbath day, upon

seeing a young man walking along smoking a cigar, the old man had approached him and, without a word of warning, had slapped his face. The defendant made no attempt to deny the charge. On the contrary, he exhorted the court and all those present, with barely suppressed

emotion: “Desecrating the Sabbath! Is there a greater sin? Our sages said, ‘God said to Abraham: If your

children will honor the Sabbath, they will enter the land;

if not, they will not enter it.”

Accuser and

accused

seemed to have exchanged places; not he, but the victim

of his attack now had to vindicate himself.

The plaintiff, too, spoke up. “In the Diaspora,” he argued, “we bore the yoke of serfdom. There we could

49

Religious Traditions and Customs

not live according to our own wishes and desires. We came

here

because

we

wanted

freedom—freedom

of

from

the

action and freedom of conscience. We will not be ruled by the past—the Dark Ages are over!” And

the old man

answered,

“I too

came

Diaspora. I too suffered under the yoke of the stranger. But even there I guarded the sanctity of the Sabbath.

‘Observance of the Sabbath is equivalent to observance of all the commandments’—thus decreed our sages. I have made many sacrifices for the sake of the Sabbath. And now, in my old age, when I have finally attained the privilege of dwelling in the sacred land of our fathers,

shall I witness the desecration of this holy day and

remain silent?” Someone said to him, “But isn’t it written that ‘the

words of the wise are uttered quietly’?”

Again his answer came without hesitation; again he cited sacred passages: “Whosoever sees his neighbor committing a transgression shal] reprove him” and “Tt is time to act for God—they have violated His law.” Even as he was being led out of the courtroom to pay his fine, he could be heard muttering to himself: “The

holy Sabbath . . . desecrating the Sabbath . . . It is writ-

ten: ‘Jerusalem had not been destroyed had her inhabitants not desecrated the Sabbath...” ” Not only religious traditions based on the Written Law, but also naive popular beliefs and practices hallowed by their antiquity are at times reflected in the modern courtroom, often in unexpected ways. Thus a judge may be faced with a case that, superficially, is quite simple, calling only for an application of the law

50

SCENES

IN

THE

COURTROOM

to the facts. But suddenly, out of the confused legal argument, there emerges a revelation of the human heart that throws an entirely new light on the case and on the individuals involved. An old woman was brought to court on a charge of theft. This is a fairly common charge and rarely arouses any special interest. But this case was different. Here,

in fact, was an unusual situation: a pious old woman had

transgressed against a clear-cut legal and religious pro-

hibition. In the depth of night she had stolen a Torah

out of the Holy Ark in a synagogue—has such a thing

ever been heard of? She did not even deny the charge that with a few pennies she had bribed a poor Jew to enter the synagogue after the Ma‘ariv service, remove

the Torah from the Ark and give it to her. But what had

brought her to this strange crime? This was her story:

“My husband and I spent most of our lives in the

Diaspora. We had no children, but we lived together in peace and contentment. Our one wish was to go to the Holy Land. All our lives we saved every penny and at last, in our old age, when we had accumulated a modest sum, we gathered our belongings and came here. We did not have to worry about a livelihood, thank God, and hoped to spend our last days peacefully and quietly in the land of our fathers. But we did want to leave behind some memorial to our name. So we decided to engage an expert sofer (scribe) to write two Torah scrolls for us, one in my husband’s name and one in mine. Our names were inscribed on the silver plates that decorate the scrolls and were also embroidered on their velvet mantles. Joyfully we donated our scrolls to a synagogue, and every Sabbath and holiday we went there to hear the

Reading of the Law from our Torah. This was my only

Religious Traditions and Customs

51

pleasure. Then suddenly some evil spirit overtook my

husband. I do not know why or how such a great misfortune befell me—all at once he began to come to me

with all sorts of complaints and grievances, scolding me

for every little thing, annoying and harassing me con-

stantly. In short, I had lost favor in his eyes. One day he

left the house, took all his belongings with him and went

to live somewhere else.” Here the old woman could no longer control her tears. Weeping, she continued, “We two no longer live under one roof, and now I don’t want my scroll to stand along-

side of his scroll. I had to take it out of the synagogue secretly because the synagogue officials have been influ-

enced by him and refused to return it to me. With God’s

help, I shall give my scroll to another synagogue.”

There was no doubt that in the eyes of the law she had

committed a crime. But what is the dead letter of the law against the loneliness of an old woman who has nothing left but a scroll which she guards with jealous love, like an only child? No, it is not easy to measure this crime against paragraph such-and-such of the Criminal Code.

If some mitigating plea might yet be found for this

woman, who after all did not feel that she was commit-

ting a crime, the situation becomes far more complicated and difficult when an offender knowingly and intentionally violates the law because it conflicts with his convic-

tions and he must choose between the law and his own

concepts of sanctity. Consider the following incident: It was during the days of the British Mandate. A cer-

tain man of culture and education was accused of ob-

52

SCENES

IN

THE

COURTROOM

structing the execution of a court order. This is a serious charge and the punishment for it is severe. But what was

the story behind the “crime”?

The accused had been a well-to-do man who had met financial reverses and had lost his entire fortune. His

creditors sued for payment and the court ordered that his household possessions be sold at public auction.

Tables, chairs, draperies, fine silverware, works of art— prized possessions that had been accumulated during a lifetime—were sold, and the man watched the proceed-

ings, bit his lips and remained silent. At last his book-

cases were put up for sale. Now he could no longer control himself.

“Only over my dead body will you carry these books out of my house,” he cried out bitterly. “While I draw

breath you will not touch them!” Now he stands in the courtroom

and weeps like a

child: “The legacy of my father and grandfather is in

these bookcases. Of all my possessions only this spiritual treasure remains. Without books I should become like a

corpse. These I could not give up quietly and without

protest!” A crime? Certainly, from the point of view of the law. But there is yet another side to the coin. Let us

examine the titles of these books. The list includes works

of Halakha

(religious law)

and interpretations of the

Scriptures, by ancient as well as by modern commenta-

lg

tors; a complete set of the Talmud printed in Vilna, Lithuania; works of Bible and Talmud criticism; volumes of philosophy in Hebrew and other languages. You see before you one of those rare individuals who represent the finest of our cultural heritage, a man whose like is no longer readily found. You see with your own eyes, you feel with your own hands the cord that unites

Religious Traditions and Customs

53

the Book and the People of the Book—and you may recall the words of Bialik from his poem “If Thou Wouldst Know”: If God has left there still a remnant small, Thine eyes shall even to this day behold Through sombre shadows cast by darkened walls, Stray, lonely Jews, like shades from eras past, Dark, mournful Jews with faces lean and wan;

Yea, Jews who Forgetting toil And poverty in Who rout their

bear the weighty Galuth yoke, in Talmud pages worn, tales of bygone days; cares with blessed psalmody

(Alas, how lowly, trivial the sight

To alien eyes!) Thy heart will tell thee then That thy feet tread the marge of our life’s fount, That thine eyes view the treasures of our soul.

rf

¥

OFFENSES

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OFFENDERS

ONE

Matchmakers

The courts deal daily with a great variety of disputes

and claims, most of which are of interest only to those

SS STINET

AEM

UK

i

professionally concerned with the law. Prominent among

the cases that draw wider attention, however, are those involving the ancient art of matchmaking. It is not my intention to present an exhaustive analysis of the institution of matchmaking as it developed among Jews. Yet it seems to me that when a judge is faced with a problem involving a popular tradition of such long standing, he cannot entirely ignore its historical background and its significance in shaping the mores of a community. Some time ago, for example, a shadhan (matchmaker) appeared before me to sue for his fee. The lawyer for the defense argued that any agreement to pay a matchmaking fee, whether made by the groom, by the bride, or by the parents of either, constituted a violation of accepted ethical standards, is therefore not legally binding, and cannot be enforced by the courts. The matchmaker listened attentively to this argument and finally answered, with a significant smile, “Were

it not for us

matchmakers, half the town would have remained bache57

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lors and old maids. We perform a public service that

should be appreciated, and he has the nerve to say that our business is immoral and illegal!” Of course the shadhan was exaggerating; but historically there is a great deal of merit to his claim. True, in some western countries the law has declared matchmaking to be contrary to public morality, so that a match-

maker cannot sue for his fee in the courts. I do not wish

to go into the legal arguments for and against this stand; but surely it would be foolish to ignore the fact that this

institution, despite its undoubted bizarre aspects, did in the past—and does to some extent still—fulfill an im-

portant and useful function for the Jewish throughout the Diaspora. ‘.

community

One of the attributes that distinguished our ancestors, even in the ghettos, was their high moral standard.

Before marriage there was little contact between young

men and women, and our forefathers were most careful

to guard and preserve the necessary social restraints. Special edicts were at times issued by communities to proscribe immodest contact between the sexes, even between betrothed couples. Young men and women

therefore had little opportunity to meet on their own, and when a

girl reached the marriageable age—or even

earlier—it was the father’s responsibility to find a suita-

ble mate for her. In one of the ancient responsa we find

this interesting comment:

Every daughter of Israel, even after reaching adulthood— indeed, even a woman of twenty—is guided by her father so long as he is alive. There is none so impudent or audacious that she will make her own decision and say, “I wish to marry So-and-So.” But rather will she rely in all things upon her father ..

Matchmakers

59

And the father found his daughter’s destined mate by means of a shadhan.

The institution of matchmaking, which was a direct outgrowth of this Jewish tradition of chastity and family

purity, was therefore considered most meritorious and the matchmaker was, so to speak, a partner of the Almighty. For is it not written that the Almighty Himself “blesses the groom and adorns the bride”? At first this important mitzvah was performed by the rabbis or by

the most distinguished members of the community. Eventually, however, there evolved a specialist in this field—

the professional matchmaker, or shadhan.

The Old Yishuv in the Holy Land, from its beginning

to this day, jealously preserved these traditions of morality and chastity which distinguished our forefathers in

the Diaspora. Boys and girls were kept apart; the honor

and sanctity of the home was each family’s most cher-

ished possession. It was completely unheard of for a grown daughter to announce suddenly, “This is the man

I am going to marry,” or for a son to send a telegram to his parents saying, “Mazol Tov! We were married this morning!”——a common oceurrence today. Instead, children depended upon their parents to make suitable arrangements for them. Here again the matchmaker fulfilled his traditional role. It was he who made the

suggestions; he conveyed the terms of one set of parents

to the other; he coaxed and cajoled and persuaded the one to increase the dowry and the promised years of

kest (support for the young couple), and the other to accept less favorable terms; and, perhaps most difficult

of all, it was he who had to find a way for the young people to “meet”—a procedure likened in its difficulty

to the crossing of the Red Sea. These complications are

not easily appreciated by the outsider, but the following

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description of such a meeting, given to me by one who

was himself born and brought up in the old Jerusalem Yishuv, will perhaps serve as an illustration:

In my youth, this was how a boy and girl were brought together to “become acquainted”: On the Sabbath, at a time prearranged by the matchmaker, the boy and one or more members of his family—his father, or his uncle—would leave

the Old City by the Jaffa Gate and turn southward toward Mount Scopus. The exact hour was never set by the clock, but rather by the time of the conclusion of the mussaf service in a certain synagogue, or simply “after the meal.” Because there was no eruv (an arrangement to permit carrying on the Sabbath), the prospective groom and his relatives would

tie their red handkerchiefs around their necks, and set out.

At the same time the girl, accompanied by her mother one or more male members of her family, would leave the Zion Gate in the southern part of the city and turn ward the Jaffa Gate. While the one party was-ascending mountain, the other would be coming

down. Somewhere

the middle the two parties met—“accidentally,” and much to their mutual surprise.

and by tothe

in

of course,

“Good Shabbes, Reb Isaiah!”—thus would the eldest mem-

ber of one family greet the eldest of the other. The latter, in turn, would say, with a gentle smile on his

lips, “Good

Shabbes and a good year, Reb Abraham.

And

what brings you here this afternoon?” “Who knows?” answers the first, smiling meaningfully. “It is a nice day, the sky is clear, the sun is shining, so | decided to go for a walk with my son. Oh, this is my son,” pointing to a youngster not yet sprouting any sign of a beard. “And what are you doing here?” “] also thought I’d take a walk with my family, This is my daughter.” He points to a half-grown girl, dressed in a long silk dress borrowed from a neighbor for this important occasion. After the interchange of greetings, the first father would say “Oh” and the second would answer “Hmm” and then they would begin a conversation about some completely ir-

61

Matchmakers

relevant topic, asking meaningless questions and giving answers that made no real sense. But while this futile dialogue was proceeding, the boy’s escorts had an opportunity to examine the girl, while her companions furtively inspected the “groom.” The interested parties themselves—that is to say, the boy and the girl—probably did not dare to look at one another, held back by modesty as well as by a sense of embarrassment. They relied upon the judgment of their elders and upon Divine Providence.

In all fairness, must we not admit that the match-

maker who had arranged this delicate operation had

earned his fee?

This venerable institution, so important in its time and

place,

fulfills a vital function

even

in modern

Israel.

The matchmaker whom I quoted at the beginning of this chapter claimed that his and his colleagues’ efforts were responsible for fifty per cent of all marriages in the Yishuv. This claim is of course exaggerated; but the general public is probably unaware of how much truth there is in it. In the courtroom, however, all secrets are laid bare. Here even this delicate institution is revealed in the most prosaic manner. A matchmaker has toiled

for weeks and months to do his share of the Almighty’s

work—that is to say, to promote a match; he has brought

for the young man’s inspection a long line of eligible maidens of all ages and of all walks of life; and when at long last—may the hour be propitious—bride and groom are united under the wedding canopy, neither of them deigns to remember him, the shadhan, and all his efforts are forgotten. Left without an alternative, he turns to the court to seek redress. For cases of this kind the courtroom is filled with a

62

gallery

OFFENSES

of unusual

personalities:

AND

OFFENDERS

matchmakers,

both

male and female; experts who will testify to the historical importance of matchmaking; young and elderly couples who have volunteered to avow publicly that they themselves found their marital bliss through the efforts of a marriage broker; witnesses who will describe how

bride and groom first met; appraisers who will estimate

the value of the matchmaker’s services, in accordance with established custom; and then the simply curious,

those who have come in order to hear how the bride and groom will answer the charge.

An unusual slice of life—one that surely deserves a detailed description. No lawsuit is as likely to evoke a smile of amusement as that involving a matchmaker. The element of the ludicrous is contained in the very essence of the charge.

It is the way of the world that when a man has purchased

something for which he does not wish to pay, he presents various arguments to justify himself. We often hear: “The garment was not properly made and I will pay neither for the material nor for the labor”; “The radio is useless—not only can’t I get shortwave reception, I can’t even hear the Kol Yisrael”; “The car doesn’t move”; “The cow was diseased and her cadaver had to be burned, skin and all... .” But what complaints can the bride, or the groom, present? That is precisely why most cases of this kind are not brought to court; usually the parties attempt to arrive at some compromise, without airing their claims and counterclaims in public. After all, most people prefer not to publicize matters that are best kept private; indeed, it is generally believed that the parties’ natural fear of publicity plays into the hands

Matchmakers

63

of unscrupulous matchmakers and enables them to exact exorbitant fees, But there are a few intrepid souls who brave the dis-

grace and appear in court to present their arguments.

The following is a typical case: The plaintiff, a professional matchmaker; the defendants, a man and a woman of the working class. The matchmaker summarizes his claim briefly: “He, the defendant, asked me ito find him a wife; she, the second

defendant, asked me to find her a husband. I arranged

things between them and the match was made. Now they refuse to pay my fee. I should really get a great deal more, but I am willing to be lenient and am asking only

ten pounds.”

The husband defends himself thus: “He promised me the moon, and what did I get? I was promised a dowry of 300 pounds. What did it consist of? A bankbook for the King Solomon Bank. There is no such bank and there

is no money either. Why should I pay him a commission?

A commission on what?”

The young woman also has her story: “My husband was described to me as a man of property, but what did

he actually own? Three shares for real estate owned by the E] Hahar company. There is no such company and

there is no real estate either—just three pieces of worthless paper. For that he wants a commission?” Let us turn to another example:

Immediately after the wedding the young couple began to argue about how to invest the dowry. She wanted to open a soda stand; he wanted to invest in real estate and

had already begun negotiations with a broker. The broker brought the deed to be signed, and the couple began to

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argue again. He insisted on his way, she on hers—and suddenly the husband, enraged, lost control of himself,

grabbed the bundle of bills lying on the table and tore them to shreds, Just then they received the matchmaker’s

summons. Now they stand before the judge and plead: “Where will we get the money to pay the matchmaker? Do we have to pay him even when there is no more

dowry?”

(Incidentally, the young husband’s troubles

were not yet over: he also had to face a criminal charge

for destroying paper money, which is an illegal act!)

The popular concept of a matchmaker is that of a

woman or a man not qualified for any other respectable profession. Matchmakers of this type are known to con-

duct their business in a most primitive fashion. They

wear out their shoeleather running back and forth be-

tween the parents of marriageable daughters and those

whose sons are beginning to reach the status of eligibility,

make suggestions, coax and wheedle and flatter, negotiate and argue, transmit the demands of one set of par-

ents to the other, eulogize the prospective bride to the

young man and vice versa, and in the end are left holding the bag, while another matchmaker, shrewder and quicker, has walked in, completed the deal and collected the commission. But actually even the most old-fashioned practitioners of this ancient profession are today applying modern, upto-date methods to their craft. For example: A man appears in court to answer a suit for a matchmaking commission. He does not attempt to deny that his

daughter was married with the aid of a shadhan; but out

of his pocket he pulls three separate summonses, from

three different matchmakers, and says, “I married off one

Matchmakers

65

daughter, and I am ready and willing to pay one com-

mission. Let the court decide which of the three gets it.”

The explanation was simple. The matchmakers had

adopted a system prevalent among real estate brokers: they had presented to the defendant a pooled list of the town’s eligible young men, and now each of them claimed credit for the match. Thus the court had to solve a truly talmudic problem that might be formulated thus: If one matchmaker proposes the name of the groom, one carries

on the negotiations between the two parties, and one has

the good fortune to conclude the arrangements and to witness the signing of the marriage contract—which of the three collects the commission? Generally speaking, matchmakers of the old school demand no written guarantees, or even verbal assurances, for the exact amount of their fee. They rely on longestablished custom and the integrity of the parties and trust that bride and groom will not forget the poor

shadhan in their hour of happiness. But the true veterans,

especially those who have been taught by harsh experiences, do not depend entirely on miracles. They endeavor to obtain at least some clear-cut evidence that they did indeed act as agents for the interested parties, and are therefore entitled to payment. For this purpose, they often execute a document of sorts, signed by the matrimonial candidate, his or her parents, or a relative. These documents are composed in a naive style, with phrases and terminology obviously invented by the matchmaker himself; but the style does not really matter, so long as the document bears the stamp of a notary public. A matchmaker who holds such a stamped and sealed document is usually fairly sure of collecting his commission.

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But even so, a shadhan’s life is not always an easy one.

For example:

A matchmaker who appeared as the plaintiff in court

produced a document, duly stamped and signed before a notary public, which read: “When and if X (the match-

maker) succeeds in arranging a marriage between the undersigned (the prospective groom) and a virtuous young woman of good family, her age not to exceed

twenty-five years—if her dowry be in the amount of at least 500 liras, I, the undersigned, agree to pay the abovementioned matchmaker the sum of 10 pounds. If the dowry be considerably greater than 500 liras, a proportionate commission will be mutually agreed on.” A similar agreement had been signed by a young woman. The shadhan had brought the two together and they were married in accordance with the laws of Moses and of Israel. But the matchmaker was not paid. He sued.

Unfortunately, he did not know that in the meantime the

couple had quarreled, were no longer living together and were already trying to arrange a divorce in the rabbinical courts. In the midst of all this turmoil the shadhan demanded his commission.

I asked the young man why he had not paid his debt,

and he answered

with bitterness: “Your

Honor,

I was

cheated. That the bride he brought me is not a virtuous young woman of good family—that only I know, to my sorrow;

but that she is not under

twenty-five,

or even

under thirty-five—that you can see for yourself. As for

the dowry—hefore the wedding, I was promised everything; afterwards, there was nothing. My father-in-law offered to give me his IOU’s to be paid off over a period of ten years. Let the shadhan take back his bride and

leave me alone!”

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Maichmakers

67

And the bride? She had similar grievances. Her story

was simple: “I was told that he had a

civil service job

and was an orthodox Jew. Instead, he has no job, spends all his time in cafés, desecrates the Sabbath

and

eats

trefa. For such a ‘jewel’ I am expected to pay a commission? I will thank Heaven the day he gives me a divorce and I am free again!” The two start arguing. It seems that any minute a real

fight will break out. The matchmaker also gets into the

act and challenges them both: “I don’t believe a word of this! You’re pretending to fight just to cheat me out of

my commission!”

Then he turns to me and exclaims, “All right, Your

Honor,

let them

get a divorce!

When

I see that they

actually are divorced, then Pll forget about my commission... .”

So far we have been discussing the traditional, oldfashioned shadhan; but the topic would be incomplete without some mention of his modern counterpart, the up-to-date “marriage broker.” For the shadhan of the old school now faces a competitor who seems likely to drive him, slowly but surely, from the marketplace. The modern marriage broker establishes his trade on

a “scientific” basis, employing the latest advances in

business techniques and organization. He does not scurry through the streets in a long, flapping gabardine coat, clutching the black umbrella that was the old shadhan’s

badge of office, winter and summer. He opens an office in the center of town, puts up a sign announcing his office

hours, establishes branches in other cities, and interviews

applicants by appointment only. Nor, being a practical

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man, does he eschew the latest methods of advertising.

Thus, for example, he announces in the local papers that

he will be in Haifa every Sunday and Tuesday, in Jeru-

salem every Monday and Wednesday, in Tiberias on Thursdays, etc. He has his ethical standards, too. His

clients can rely on his keeping all personal information

strictly confidential—unless, of course, a case is brought to court, where all secrets are bared. Judging by the cases that have come before me for judgment, I am convinced that the student of contemporary social history will find

a rich and unexplored mine of information in the files of the modern marriage broker. Let us examine for a moment the advertisements he places in the newspapers, advertisments which may later be introduced as evidence. While the old-fashioned shadhan’s promises were verbal and therefore difficult to ascertain, these printed advertisements state clearly and publicly all the virtues and advantages, the praises and the promises that brought “him” and “her” together.

Here interesting comparisons can be made that serve as

an eloquent commentary on the fluctuating economic circumstances, as well as the changing social attitudes which

characterized the Yishuv at different periods of our re-

cent history.

In the depression years of the late thirties, the matri-

monial advertisements that appeared in the press, some of which entered the records of the courts, were couched in terms like these:

I am introducing a young man of _______ (the age), native-

born, educated and serious-minded; he is interested in meet-

ing a young lady of means whose parents can help him estab. lish himself in business. Her community background (ze., Oriental, European, Yemenite) is unimportant.

69

Matchmakers

Or the matchmaker might say: A young lady, aged ; distinguished family, speaks in meeting an economically consider living in a Moshava

personable and intelligent, of several languages, is interested independent young man; will (agricultural settlement) .

But in the years 1940 to 1945, a time of comparative

prosperity, the tone changed, and advertisements were worded thus:

I am introducing a young man of means, owner of a wellestablished business in the heart of the midtown area, inter-

ested in meeting an attractive young girl, preferably of central European background. Money is no object.

Or: An attractive young girl, with considerable property of her own as well as a well-furnished apartment, is interested in meeting a young man, no older than . Her parents are ready to establish him in his own business.

Announcements like these tell their own story.

The modern matchmakers also differ from their older

colleagues in that they are more circumspect and do not rely on their clients’ good faith for their reward. Nor do they wait patiently for their payment: they take a downpayment in advance and insist upon written guarantees

for the balance. These written contracts, when brought before the court, are ample evidence of the degree of refinement and perfection which the profession has attained in the hands of some of its practitioners. Here is a concrete example:

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A modern matchmaker sued one of her women clients for payment of the remainder of her fee, and introduced as evidence of her claim a contract filled out and signed by the defendant herself. The document began with a heading listing the name of the matchmaker, her business address, the date, and the client’s file number. The infor-

mation

called for in the body

of the application

in-

cluded: the applicant’s full name, place of birth, age,

height, weight, hair color, matrimonial status, profession,

monthly income, real and personal property, years of residence in Israel, education and academic degrees, lan-

guages, type of mate desired, other remarks. There was a small blank square for affixing a photograph (recent). Then followed the important paragraph: I hereby authorize Mrs. to undertake to find a suitable spouse for me. If her efforts prove successful, I promise to pay Mrs. half of her commission on the day of the engagement, the rest to be paid thirty days before the wedding. If my spouse’s property, both real and personal, does not exceed 500 pounds, the commission will be 20 pounds; if the property be more than 500 pounds, the commission will be 20 pounds plus two per cent of the total above 500 pounds. If} fail to pay my obligation in time, I will also be responsible for any expenses Mrs.

may

incur in bringing

court

action against me. This contract shall also be considered as an acknowledgment of my debt. I have today paid the sum of one pound as my registration fee, said sum to be deducted from the commission.

I hereby declare that I have read the above conditions and agree to them of my own free will. I also declare that all information given by me in the above paragraphs is true.

Date and signature followed.

We

have come

a long way

Aleichem’s Menachem-Mendel,

businesslike Mrs, ———.

indeed

from

the matchmaker,

Sholem

to the

Matchmakers

71

But even the modern matchmaker has his troubles.

His clients are not always willing to express their gratitude in concrete, monetary terms, and frequently he too must turn to the courts for justice. If, by some mischance,

he does not have all the necessary documents in black

and white, he fares no better than his less advanced col-

league. He too must then rely upon traditional law, upon custom and usage, and upon the judgment of impartial appraisers. For example:

Suit was brought against a wealthy man, the owner of a large business, for payment of a matchmaker’s commission. The sum demanded was relatively modest, about twenty pounds. Unlike other defendants in similar cases,

he appeared in court personally to defend himself. It was not, he said, that he cared much about the few pounds,

but rather that this involved a matter of principle, and for the sake of his principles he was prepared to do battle. From his arguments it became apparent that he had promised to pay the plaintifi—a professional match-

maker—a certain percentage of the dowry his wife might

bring him. He himself had no complaints against the matchmaker—on the contrary, she had done her utmost

to find him a wealthy bride. She had introduced him to

one “party” but he did not care for the girl. She had brought him another young woman of means, and again he was not satisfied. Then she had introduced him to a third girl, whom he married. Now he would gladly pay the agreed-upon percentage of the dowry—but his bride had brought no dowry with her. Instead, he had had to pay some of her debts. Thus he considered his offer to

pay the matchmaker five pounds a most gentlemanly gesture, occasioned only by the goodness of his heart. The matchmaker’s version of the story was somewhat

different. In telling it she revealed a segment of the

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OFFENSES

behind-the-scenes

activities

of

the

AND

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modern

marriage

broker. First, she argued, the sum she was demanding

was the absolute minimum to which any matchmaker was

entitled, even when there was no dowry at all. This de-

mand was yet more clearly justified when one considered the defendant’s own economic position and social status. Secondly, she had had to take unusually great pains in

this case, because the matter had not been at all simple: when the defendant had applied to her, he was a married

man whose wife had remained in Europe while he went

to what was then Palestine. The matchmaker had become involved in this complicated state of affairs, had obtained legal advice, had counseled him to apply to the rabbinical courts for a divorce, had found witnesses who testified

that the wife had refused to accompany him

(which

classified her as a “rebellious wife’? who could be di-

vorced in absentia), and thus—only through her help and assistance—had the defendant been able to obtain

a bill of divorcement from his first wife. Was she, the matchmaker who had gone to so much trouble on his behalf, not entitled to some reasonable compensation? The court appointed an expert to estimate the plaintiff’s rightful fee. His testimony was most interesting, and I shall here cite an excerpt from it: According to traditional law, it is incumbent upon the parties to pay the matchmaker a fee of at least two per cent of the property of either the bride or the groom, whichever is greater, the sum to be no less than 50 pounds, Today matchmakers usually demand more, even as much as 100 pounds. I myself make no preliminary financial arrangements, but adjust my commission afterwards according to the circumstances, as follows: the time I invested in making the arrangements; the parties’ ages, the current value of money, etc. If the woman is young, I ask more of the groom; if she is older

than he, she pays more. One also takes into consideration the

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Matchmakers

cultural level of the parties, the general rule being: the com-

mission varies inversely with their educational] attainments.

It is also common practice for a client, if he suddenly becomes wealthy, to add something to the matchmaker’s agreed-upon commission. As for beauty—that does not enter into the reckoning; it is a matter of individual taste and preference and cannot be evaluated in monetary terms. In short: there are no exact rules; the important thing is that the matchmaker must be paid, the amount depending upon individual circumstances. No one should be envious of the matchmaker. His work is almost impossibly difficult, for both parties are usually quite insane and it takes all the matchmaker’s skill to talk some sense into them and get them together.

It would be difficult to improve upon this expert’s own evaluation of his profession and its tribulations. There is still much common ground between the old-fashioned

shadhan and the modern marriage broker: when im court,

each bases his claim chiefly upon the pains he took to bring about the match—-an argument which carries considerable weight with the court when it is called upon to appraise the value of this service in promoting the happiness of a young couple and thus furthering the public welfare.

Unfortunately, we cannot conclude with the assump-

tion that all the dealings of shadhanim brokers,

as revealed

in the courtroom,

and marriage

are pleasantly

humorous. In court the matchmaker is often revealed in all his iniquity, and it becomes clear why many societies frown upon the entire institution of matchmaking. Again some historical background is called for. I

stated above

that the function

of the shadhan

was

an

honorable one in the Jewish community of the Middle Ages, and that the parents of marriageable sons and

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daughters welcomed him to their homes with every mark

of courtesy and respect. Because most parents wished to

see their children settled as speedily as possible, they were only too anxious to give credence to the matchmaker’s every word of praise. The latter was not always above taking advantage of this naive faith, and might overpraise the bride’s beauty, exaggerate the promised dowry, and paint a far too glowing picture of the groom’s many virtues and accomplishments. Often the truth did not become known until it was too late, and if divorce remained a rare occurrence, it was perhaps only because a divorce was considered a stain upon the family’s honor.

The echo of a subdued protest against the excesses of

some matchmakers reaches us from several source texts of that period. One distinguished rabbi complained that in his day it had become customary for shadhanim “‘to make up things that have no basis in fact, only in order to expedite their work,”

while another

rabbi

included

the following exhortation in his will: “If you engage in arranging a match, do not exaggerate, but tell only the bare truth.” Even the practice of rabbis helping to arrange marriages was not without flaws and aroused some harsh criticism.

In this respect, our modernized institution shows no

improvement. In the courts it is often revealed to be of highly dubious morality. Many ugly aspects come to light, tending to give weight to the argument that the entire institution is incompatible with our social ethics. I shall restrict myself to citing the following example of

this less amusing side of the story: A matchmaker brought suit for his commission. The defendant—the father of the girl who had been married through his efforts—told this pathetic story:

T 75

Matchmakers

I came to Israel several years ago. I am a businessman and my livelihood is not too bad; but the years of adjustment weren't easy. I was a stranger and found it hard to strike root when the language, the customs and the entire way of life were so different from those I had known since childhood. My circle of acquaintances was small, limited to a few other families who were also newcomers, They, too, complained

about the difficulties of adjustment. There were few young people among

them. I have two daughters—quiet,

modest

girls. They don’t run around to parties and dances: they knit

and sew, cook and bake, read a book occasionally . . . in short, they are balebatishe kinder (well-behaved, proper

girls). The older one was growing up, and the time came to think about tachlis (a purpose—specifically, marriage). Then this man began visiting my home and suggested various matches. I thought to myself, “Maybe he can help.” He started talking about one boy in particular, couldn’t seem to find praise enough for him: a quiet, pleasant boy, of good family, who earned a decent living. One evening he brought the boy over with his father and we talked awhile. It seemed all right. The father made a good impression—he had been living here for many years; his conversation seemed sensible. My daughter liked the boy, and we began to entertain the idea of marriage seriously. How much did we actually know then? We were smitten with blindness, and this scoundrel helped to push us over the cliff. Every day he kept after me: “Well, what’s going to be? When do we write na’im (the contract of engagement) ?” I begged him not to rush us. After all, a thing like that has to be considered

carefully;

we would

look around,

make

in-

quiries, and then come to a decision. But he wouldn’t let up. “What, you're still hesitating? That boy is a jewel. He can have twenty other girls tomorrow

if he wants. Aza yor oi}

mir (may I have such a good year)—that boy is a catch!” He coaxed and wheedled and pooh-poohed our doubts and hesitations. Finally I said to my wife, “Who knows? Maybe this really is a predestined match, The girl likes him, he comes from a good Jewish home, and other fathers are after him— why should we put it off any longer?” In short, we wrote

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OFFENSES ’na’im, paid over the dowry

huppah.

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OFFENDERS

and led our daughter

to the

[At these words, he choked and began to cry. Then he continued, his voice still trembling.] Not to the kuppah—we led our daughter straight to the abyss. Five days after the wedding the police came to our house to arrest the “jewel” as a common thief. We began to investigate and discovered that he had a long criminal record, had been in jail several times. My daughier spent her honeymoon in the police station, where she was questioned because they suspected her of being his accomplice. The necklace and the ring he had given her were taken away—they were stolen property. Instead of looking for an apartment, we began to run to the rabbis to seek a divorce. Every time there was a hearing, they brought him out in handcuffs, and my heart bled at the sight of my daughter’s face. I myself had brought this upon her. Thank God that she was at last able to obtain a divorce. Now the very man who brought this shame and disgrace upon us comes to demand payment for his efforts. If there were any justice in the world, he would be the one to pay!

And the matchmaker? He is quite unmoved. “‘Accord-

ing to the law of Israel”—he expounds the law as though

he knows it by heart—“‘the shadhan is entitled to his com-

mission as soon as the t’na’im are signed. The civil law

also states that a middleman is entitled to his brokerage fee as soon as he brings the two parties together. If either the buyer or the seller later changes his mind about the deal, that does not affect the commission. Divorce or no

divorce—the matchmaker must be paid.”

As we have seen, even the rabbis of the Middle Ages recognized that the institution of matchmaking had serious flaws. Today its evils are often magnified—yet, for better or worse, the shadhan is still very much with us.

TWO

Libel and Slander

Anyone who commits a crime must expect to face punishment. Usually it is the police or another governmental

agency that brings the transgressor to court. But if the offense does not directly affect the welfare of the general

public, the police authorities will often stand aside while

the private citizen who suffered injury himself initiates court action against the offender. A suit of this kind is

known as a “private criminal suit.”

Such suits originate by and large in petty quarrels, cases of assault and battery where no serious physical

injury was inflicted, or minor irregularities in business

transactions. But the place of honor—at least numerically speaking—is taken by charges of libel and slander.

No paragraphs of the Criminal Code, except for traffic

regulations, are violated or invoked

by the citizens of

Israel as frequently as are the paragraphs dealing with malicious gossip, slander and libel. Such charges transcend the boundaries of class and rank. Anyone may find his way to court to seek protection for his good name and reputation. Authors, journalists, teachers, politicians and businessmen, doctors and artists, domestics and manual

laborers—all stand ready to defend their own honor, 77

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OFFENSES

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though not everyone is equally concerned with protecting

his neighbor’s good name. It seems to me that the tendency of my fellow Israelis to engage in litigation of this particular type has four major causes. First and most obvious, there are the serious material

consequences that may be caused by slanderous state-

ments. For example: The complaint presented by one plaintiff was brief but self-explanatory. He wrote:

The accused have been spreading the rumor that my personal conduct is immoral. This has injured my reputation and caused me material loss as well as mental anguish, especially since I am a rabbi. Once they went so far as to insult me in my wife’s presence by saying to her, “Your husband sits here in the synagogue and studies the holy books, but what does he do when he is in N’vei Sha’anon?” At the same time, they exchanged meaningful winks and smiles. The incident took place in the presence of several of my congregants. Now, because of this malicious and false gossip, I am in danger of losing my livelihood as well as my good name... Secondly, there is the fact that slander often causes

serious damage to family and other personal relationships. Many times the injured party has recourse to the

courts not only to see the offender punished, but also

because he hopes thereby to straighten out his personal difficulties. Thus a young woman brought suit against the girl who had once been her closest friend. What was the

background of this crime? It seems that the defendant

had been dating a young man, the son of a prominent family, a handsome, intelligent youth—in short, a most desirable beau. In her daydreams she had often imagined her engagement and even her wedding day. Then she introduced the young man to her girl friends, among

them the plaintiff. But who can fathom the waywardness

of a man’s heart? He saw the friend, fell in love with

Libel and Slander

79

her at first sight, and soon rumor had it that the two were about to be married. The presumably jilted girl, overcome by the thirst for vengeance, sat down and composed an anonymous letter to her erstwhile admirer, in

which she wrote: “You believe that your girl friend is pure and virtuous like a white dove, but you had better

get that idea out of your head—the sooner the better.”

This pleasant introduction was followed by a

list of al-

leged “‘sins,” citing dates, names of other men, and wit-

nesses. Not yet satisfied, she also sent a copy of the

letter to the boy’s father so that he might save his son from “falling into the trap.”

How had her authorship of these anonymous letters become known? Precisely because she had been too careful. Afraid to entrust her letters to the mail, she had paid the grocer’s errand boy a few prutot for delivering them, warning him not to reveal where he had gotten them. The boy, however, disobeyed her warning and

told the secret. “Since my boy friend received that letter,”

charged the plaintiff, “his entire attitude toward me has

changed.” In short, he was no longer interested in her. Now it was she who sought revenge, hoping at the same time to win back the fickle lover’s affection. A third cause for the multiplicity of these charges is the average individual’s inability to distinguish between what is and what is not criminal slander or libel. The

law’s interpretation of what constitutes slander is strict and limited. The public, however, tends to include under

this heading all unfavorable gossip, offensive epithets, obscenity, insults and that favorite and time-hallowed verbal weapon—the curse. Vexing and annoying though

these may be, they do not necessarily involve injury to

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the victim’s reputation and thus do not always constitute grounds for legal action. For example:

A Yemenite Jew pressed criminal charges for injurious

insults against three other Yemenites, namely, the gabbai

(presiding officer), the shamash (sexton) and the reader of his synagogue. In his complaint he wrote that these

three had insulted, defamed and humiliated him, so that “his honor had become like unto the dust of the street

and the dung in the fields” and he no longer dared to raise his head among his fellow men. In what manner had they done him such grievous injury? By conspiring against him, so that since the last Passover he had not once been

accorded an aliyah (the honor of being called up to the

Torah). They had distributed these honors only among

their own friends and relatives; all his pleas and solicita-

tions had not moved their “stony hearts.” He had even

sent them a notarized letter demanding his rights as a member of the congregation of Israel, but they had not

relented. He concluded his charge with these words: ““The

accused have deeply offended me and I respectfully request the court to punish them according to their deserts, and to instruct them to accord me at least one aliyah every month, as is the custom among our people.” I attempted to explain to the bewildered plaintiff that, no matter how much IJ personally sympathized with him,

there was nothing the law could do in this case. The poor humiliated

man was shocked.

‘How

can

that be?” he asked sorrowfully. “Had they called me ‘donkey’—which everyone knows is not true—the law

could have punished them, but when they publicly trample upon my honor and shame me before the entire congregation, the court does not recognize that as a crime?” From the legal standpoint, no crime had been committed—but what a touching revelation of a simple and

8l

Libel and Slander sincere devotion

to the ancient traditions

found in this plea!

of Israel is

Among the most common complaints which the courts

have to settle daily are those caused by the popular habit

of cursing. Here again there is an opportunity to observe the folkways of our heterogeneous people. The malediction and the curse constitute a unique

chapter in the annals of the law. There is still a sizable segment of our population, especially among the less edu-

cated, who are literally afraid of a curse. In turning to the court to seek punishment for the pronouncer of the imprecation, many apparently see a means of averting its evil effects. But ignorant of the intricacies of the law, these plaintiffs usually and mistakenly make their charges on the grounds of “defamation of character,” and are then disappointed to find that the omnipotent court cannot help them.

There was, for example, the woman who filed charges

against a neighbor who had said to her, in the course of a quarrel, “May your womb bring forth stones and

not children.” The plaintiff, who was pregnant at the time, was deeply disturbed, and when the police refused to take action (petty quarrels among neighbors being

much too common an occurrence to warrant police atten-

tion every time), she herself brought the complaint to court. The charge was written by someone who obviously

had only a flimsy smattering of legal knowledge. He had

apparently heard of a law against “defamation of character” and based the charge on that. After reading the plaintiff’s brief, I explained to her that this was not a matter of criminal slander and that the paragraphs of the law she had cited did not apply to the case. Looking

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at me with wide-open eyes, she exclaimed impatiently,

“Then punish her by some other paragraph! What dif-

ference does it make to me what paragraph you use?

So long as she’s punished.”

Though curses and maledictions do not constitute criminal offenses, they are a treasure trove of popular attitudes and expressions. Because the dictionary of common curse words in our rejuvenated language is still limited and the means of access to the rich store of classic oaths and imprecations in our ancient literature are not easily available to the masses, those who seek expressive curses often have to coin their own. Here we must admit that the Hebrew curse, as it is being developed in the streets and

marketplaces, has not yet reached its true flowering. Often it is still colorless, trite and artificial. It is still rooted in foreign expressions, taken largely from the Yiddish, the Ladino or the Arabic. While many may not consider this a particularly important aspect of our culture, we should not close our eyes to its development. For if we genuinely wish to see Hebrew take its place as the language of every phase of life, we must be concerned not only with the language of the book, but also with the daily speech of the porter, the peddler and the fishmonger. Here the curse can be most instructive, both for the expressions used and for the popular attitudes they reveal—and so the court archives have inadvertently become a veritable storehouse of verbal folklore.

Let us now examine the different categories of curses.

First, there is the malediction disguised as a “benediction.” This form is especially popular with women.

Such curses usually begin with the phrases “May you

Libel and Slander

83

have...”-— “May you live to see. . .”——or simply “May

it come to pass...” Here are a few samples: “May your bridegroom be as good-looking as the dress you sewed for me”; “Thus

may you live to see your only son under the wedding

canopy”; “May you have as many children as I told lies

about you to your husband.” There are many more.

The second category of popular curses consists of those current in the marketplace, among stall keepers and peddlers. They exist in every language spoken by Jews; it is almost as though no minor commercial transac-

tion could be completed without them. Typically these imprecations are addressed not only to the immediate victim, but also to his forefathers and descendants. They

are most dish. In the style Some

common in Arabic, but are also found in YidIsrael they have acquired a Hebraic garb, but usually makes it possible to trace their origins. choice samples follow: “May you swallow a

bone and choke on it”; “May you break your arms and legs while walking on a smoothly paved street”; “May

your eyes grow dim as mine did while I was saving to

build the house you now live in virtually rent-free”;

“May the Lord send a plague upon you and all your family”; “May you and your father and your mother and all your relatives die Jike dogs in the street in one day”; “I curse your father”; “I curse your mother”; “I curse your grandfather and your great-grandfather.” Then there are the unprintable obscenities. Frequently these are expressed in foreign languages, and experts

have to be called in to testify to their exact meaning and

implications. The court records thus reveal vast treasures

of “culture” that Jews have brought with them from all

corners of the earth. For it seems that even those who normally speak a fluent Hebrew revert, when passions

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are aroused, to the language they spoke in their youth in the towns and villages of the Diaspora.

Unpleasant though this topic be, it too has its humorous

aspects. There was, for example, one woman who charged another with uttering curses against her in a foreign language. When asked how she could be so sure the other woman had been cursing her, since she admitted that she

did not understand a word of the language, the plaintiff replied, “The expression on her face and voice made it plain enough that she wasn’t An Arab, when called upon to testify in swore that the defendant had insulted the

the tone of her blessing me!” a slander case, plaintiff in his

hearing. He was asked to repeat exactly what he had

heard, but was unable to pronounce the words. Then the

judge asked him how he knew these words were insults, and he answered, “WheneverI hear one Muscovi (Arabic nickname for Russian Jews) say these words to another,

there is always a fistfight right afterwards!”

The fourth, and perhaps most basic, reason for our

preoccupation with libel and slander is the simple fact that a man’s honor is very important to him, more im-

portant even than his physical welfare. Here we touch

upon the ancient and deep-rooted attitude toward slanderous speech that has found expression in the Holy Scriptures and throughout our entire sacred literature. “Thou shalt not go up and down as a talebearer among thy people” (Leviticus 19.16) is a biblical commandment. The prophet, enumerating the sins of his generation, charged that “they bend their tongue, their bow of falsehood . . . and every neighbor goeth about with slanders” (Jeremiah 9.2-3). The slanderer was universally held in low esteem: “He that uttereth a slander is

Libel and Slander

85

a fool” (Proverbs 10.18) and “Whoso slandereth his neighbor in secret, him will I destroy” (Psalms 101.5).

The talmudic literature and the commentaries of the gages re-emphasize the deep abhorrence in which this

particular vice was held: “Come and see how great is the power of an evil tongue! Whence do we know

[its

power]? From the spies: for if it happens thus to one

who brings up an evil report against wood and stones, how much more will it happen to him who brings up an evil report against his neighbor” (‘Arakin, 15a). Rabbi

Hisda declared: “Of him who slanders, the Holy One, blessed be He, says: He and I cannot live together in

the world” (‘Arakin, 15b). Even heroes of the biblical drama are pictured as having been severely punished for the sin of slander and defamation. Thus Joseph suffered years of slavery for talebearing against his brothers, and Miriam was afflicted with leprosy for speaking against Moses. Moses himself, who had exclaimed impatiently, “Hear now, ye

rebels” (Numbers 20.13); Elijah who accused the chil-

dren of Israel of having forsaken God’s covenant (I Kings

19.10); and Isaiah who complained “I dwell in the

midst of a people of unclean lips”—they too were punished for their disparagement of the people of Israel.

Indeed, the rabbis went so far as to trace the very destruc-

tion of the kingdom to the sin of slander. Thus Rav said: “Had not David paid heed to the slander against Ziba the servant of Mephibosheth, the kingdom of the House

of David would not have been divided, Israel would not

have succumbed to idolatry, and we would not have been

exiled from our land” (Shabbath, 56b).

In the post-talmudic era it is difficult to find a single treatise on ethics (these often took the form of spiritual

testaments written by renowned scholars for the instruc-

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tion of their children and disciples) that does not warn against the sin of slander in all its many manifestations. During the Middle Ages punishments as severe as the ban and excommunication were imposed for this offense.

Closer to our own times, we find a major work—the book

popularly known as the Hofetz Haim (“He who desires life” )—-devoted entirely to the “prohibitions against

slander and talebearing.”’ The very title of this work was derived from the maxim: “Who is the man that desireth

life, and Joveth days, that he may see good therein?

Keep thy tongue from evil, and thy lips from speaking

guile” (Psalms 34.13-14). This then is the traditional Jewish attitude. In turning

to the law for redress from insults and indignities, Jews

who have been nurtured in this tradition—at times without consciously realizing it—are not merely seeking

punishment for the offender, but are expressing their deep-rooted indignation at the very nature of the offense.

The background of this Jewish attitude is interesting

not only for the light it throws on the high of our forebears, but may at times serve guide for contemporary situations. Thus vised: “In the presence of a proselyte or a proselytes, even unto the tenth generation, an Aramean [generic term for non-Jew].”

ethical values as an explicit our sages addescendant of do not insult The following

incident taken from the not-too-distant past illustrates

the wisdom of this counsel:

Shortly after the outbreak of World War II a woman

appeared in court before me to file a complaint against several of her neighbors and their children. The woman was small of stature, pale, and obviously nervous. Her

Libel and “Slander

87

three daughters—the eldest a girl of about sixteen, the second about eleven and the youngest about eight years old—pressed close to her, as though seeking her protec-

tion against some unseen enemy. Their young faces, too, expressed anxiety. All had flaxen-blond hair and pale

blue eyes.

The mother began speaking in German, her voice

trembling with tension:

I am a German Christian; my husband is Jewish. These are our three daughters. We came to Palestine before the war broke out and have been living in this town ever since. Since we came, our neighbors have singled us out as the victims of their anger and hatred. They ostracize us and avoid any contact with us as though we were lepers. All of us, but especially my husband and the children, are deeply unhappy over this situation. The children play only with each other in a corner of the yard. Yet we do not want to force our company on anyone, and we have tried to accept the thought that our neighbors will never be our friends. But since the day the war broke out we have not known a moment’s peace. Wherever we go, insults are hurled at us. When the girls venture out into the street, the neighbors’ children make fun of them and call them

names—“Hitler,”

“Nazis,”

“Goyim,”

and

the like—

and tell them to go back to Germany. And the mothers! Not only don’t they make them stop, they even encourage the children and smile at it.

Here the woman burst into heart-rending sobs. “There —in Germany—the German children made fun of my girls, called them ‘Jewish swine’ and yelled at them to go to Palestine. Every day the girls came home from school crying and pleaded with their father to take them out of that hell, to take them to Palestine. Now they are here

and the Jewish children call them ‘dirty Germans’ and tell them to go back to Germany.”

8&8

OFFENSES

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OFFENDERS

She finished her story with a bitter, almost hysterical protest against the injustice of the world: “Even if I

made a fatal mistake, must these innocent children pay

for my sin all the rest of their lives?”

What legal punishment can right this wrong? Some actions become criminal offenses in the eyes of

the law only when committed in certain places or at specified times. For example: creating a noisy disturbance is an offense only in a public place; emptying out

a pail of slop is a violation of the law only when the

refuse is poured out into the street. Libel and slander, however, know no limits of time or place. The scene of the crime may be anywhere: at home or in the street, in the village or in the town, in a store or in a workshop. But the most common stages for this particular offense are the kitchens and back yards shared by several families, the long lines on which housewives have to wait in

times of shortage and emergency, the amateur “parlia-

ments” that meet on street corners and in parks, the

waiting lines at bus stops and taxi stands. Incidents aris-

ing in these most prosaic locales perhaps reflect most truly our life today. Here are a few examples: A middle-aged woman was indicted on a charge of refusing to obey the orders of a policeman and, in addition, insulting him while he was carrying out his duties. The time—a Thursday during the war; the place—the

line waiting outside a butcher shop for the weekly meat

ration; the epithet she was accused of using—“pogrom-

shehik” (anti-Semitic rioter).

The accused told this story:

TaeTeNoMe YE

A.

gz

Libel and Slander

89

I am the mother of five children. My two older sons are in the army; I have to support the other three, because my hus+ band is a shlemiel and doesn’t earn a living. On that Thurs-

day, when I knew the meat rations were to be distributed, I

got up at four o’clock in the morning, stood on line for a while in order to “reserve” a place near the front, and then asked the woman behind me to keep the place for me. Then I went home to give the children breakfast and got them ready for school. At seven o’clock I returned to the line and tried to get my place back. The line had grown long meantime, and the women further back started screaming that I was pushing my way in. The guard came over and told me to go to the end of the line. All my pleas and explanations did no good. He simply kept repeating, “You have to stand at the end of the

line.” I was terribly upset. All week long my children had

not tasted a morsel of meat. Now, if J stood at the end of the

line, there would be no meat left by the time my turn came, and besides I would have lost a day’s business at my stand. So when he started to push me back, I just lost my head. Perhaps I did call him pogromshchik; perhaps I even boxed his ears. If so, I beg his pardon and promise it won’t happen again. This is the first time I have ever been in a court. I don’t even know how to defend myself properly . . .

Here is another incident: The line at a bus stop had grown long. There had been no bus for some time. People were becoming nerv-

ous, pacing back and forth, stretching their necks to see if the bus was coming, looking impatiently at their watches, and growing angrier every minute. At last the

bus pulled up. But it was almost full and could take only a few more passengers. The line began to move slowly and the first few entered the bus. Suddenly some-

one began pushing his way in from behind. Shouts of

protest were heard. Arms were flung out to pull him back. The bus started and disappeared, but those left

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behind were now divided into two warring camps. Someone yelled out, “Asiatics!”’; someone else yelled back, “White-faced lepers!” Words soon gave way to fists, and

suddenly the police arrived on the scene. They took down names, filled out a report, and a few days later several of the participants in the free-for-all were haled into

court on charges of assault and disturbing peace. Now the judge had to decide whether “Asiatics” and “white-faced lepers” were of vocative and insulting nature as to justify violence.

the public the epithets such a prorecourse to

The variety of insults is almost inexhaustible. One could virtually construct a cross-section of contemporary Israel life from a list of the remarks at which people take offense. The owner of a furniture store sued a customer who had during the night affixed a poster to his store window.

The legend on the poster, printed in bold letters, read: “T was cheated here!”

A butcher felt himself injured by a customer who said

to him at a time when his shop was full of people, “Dispenser of trefa meat! People like you ought to be wiped

off the face of the earth!”

A synagogue official brought charges against a member of the congregation who, at a meeting devoted to the election of new officers, accused him of stealing from the synagogue funds, keeping for himself the donations made

by congregants who had been called up to the reading of the Law, and selling for his personal] profit silver ornaments that had been given as gifts to the synagogue. And a ritual slaughterer sued the editor of a news-

paper who had printed a story to the effect that he, the

Libel and Slander

9]

slaughterer, had gone to the movies with the wife of a friend, and that same evening the friend’s home had been robbed. The plaintiff charged that the insinuations of the story were such as to cast doubt upon his moral fitness

for the office of ritual slaughterer in a Jewish community.

Then there are the insults that at first sight seem to

express praise, but upon closer examination of the cir-

cumstances surrounding their utterance, or the tone of

voice in which they were expressed, reveal their true

nature.

Typical are such epithets (in print they always appear

in quotation marks; orally they are pronounced with an

inverted inflection) as: tachshit (ornament), hokhom (sage), tsatske (delightful toy). Once a judge had to decide whether the following might be considered an

insult: “You’re worse than a halutz”

(pioneer, in a

disparaging sense). Another form of insult is that expressed in terms of certain trades. For example: A man sued another on charges of assault and battery.

The accused defended himself with this explanation: “He insulted me and called me a ‘cobbler.’ ”

An argument ensued as to whether this was an offensive expression. The plaintiff’s lawyer argued: “There is nothing degrading in that remark. The sages

of Israel were laborers and artisans. Rabbi Yohanan was a cobbler, Rabbi Yehoshua a blacksmith; they did

not consider it degrading. On the contrary, our rabbis always spoke in praise of craftsmen and said “Love labor and abhor lordship” (Aboth 1.10).

The argument seemed unassailable. But the defendant

found an answer:

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“That’s true enough, provided you call a blacksmith ‘blacksmith,’ or a carpenter ‘carpenter.’ Then there is no insult involved. But if you call a blacksmith ‘teamster,’

or a carpenter ‘kindergarten teacher,’ then it certainly is an insult. Of course, work is no disgrace. I myself am a tailor. But here is what happened. After I had sent the

plaintiff a pair of trousers that I had made for him,

he came storming into my shop like a tornado, threw the

trousers on my work table and yelled at me, in the presence of several customers,

‘You’re a cobbler!’ Well,

lost my temper and threw him out, and I won’t swear

I

that I didn’t slap his face at the same time—but he had it coming!” A special category of insults involves the names of certain countries, cities, peoples or ethnic groups. At times these are coupled with derogatory adjectives, but sometimes they seem to be considered sufficiently insulting without further additions or explanations. One man complained, “The accused said to me in the hearing of several people, ‘You belong in B’nei B’rak.’ He meant to imply that I am not completely sane.” Another

man,

an

emigrant

from

Russia,

resented

being called Fonye Ganev (thieving Ivan). A third felt his honor impugned by the epithet “Galician pig.” These terms could legitimately be considered insults, since the geographic term was coupled with definitely derogatory expressions. The court faced a more difficult decision, however, when the epithet in question was simply the word “Galician” without further elaboration. A colleague on the bench told me of an amusing case that was argued before him some time ago. It involved two residents of an agricultural settlement, one of whom

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93

had called the other “Frenk Parech” (bald-headed, or skin-diseased, Spaniard). The interesting thing about it was that the plaintiff, a Sephardic Jew, was a dark young man with full black curly hair, while the defendant—he

who had hurled the dreadful insult—was a pale Euro-

pean whose bald pate glistened like a billiard ball.

Before I leave this subject, I cannot refrain from quot-

ing verbatim an excerpt from the complaint brought by

one of our Yemenite brethren. He was a young man by the name of Zechariah ben Japheth Halevi, who had become betrothed to a girl by the name of Mazal Sharabi.

Shortly before the time set for the wedding ceremony— the guests were already assembled and the ushers were

waiting to escort the young couple to the canopy—Mazal, the bride, announced that she had changed her mind and no longer wished to marry young Zechariah. The disap-

pointed groom’s world came tumbling down—all was

darkness. Unable to forgive or forget his humiliation, he at last turned to the court, charging Mazal with calumny and defamation. This is what he wrote in his writ of complaint: I still recall that bitter night—the fifth of Adar, 5702. I was dressed in my wedding garments and was seated in the place of honor. At my right was Rabbi Yechia; the seat at my left was reserved for my bride. The house was filled with commotion and noise. The ushers went to bring the bride, and I was preparing to welcome her with the benediction “Blessed be He who created the luminaries.” Suddenly I heard a whispering among the assembled, and soon the terrible news reached me—“Mazal has changed her mind.” How could the Almighty be so cruel to Zechariah ben Japheth Halevi? He had removed from the circlet of my life its precious gem—

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Mazal. Never again will I sit near her. Yet there were days

when I used to sit in her shadow, in the noon hour of a hot

summer day. She—the pleasant and beautiful—sat opposite me, and I divided my chocolate with her—one piece for her, one piece for me. There were dimples in both her cheeks and,

were it not for the prohibition of the rabbis, I would have

filled them with my kisses, even had I known that I must pay for the sweetness of the kiss with my very life.

It has been my practice not to discuss the sentences imposed in the cases I cite, but here I must depart from that rule and relate the end of the tale. The understanding

judge called Mazal before him, spoke to her and convinced her that the path leading to the wedding canopy was more pleasant than that to the courthouse. The young couple were reconciled and Zechariah ben Japheth Halevi left the courtroom a happy man, with Mazal, his “pre-

cious gem,” at his side. Together they took the path leading to the wedding canopy.

THREE

Beggars

In the popular mind, laws are divided into two broad categories: those whose purpose is obvious and selfexplanatory, and those that have “neither rhyme nor

reason.” This may not be a scientific or a rational division, but it goes far to explain the man-in-the-street’s attitude toward individual laws, and often his conduct as

well. By and large it is easy for the average citizen to obey laws that fall into the first of these categories; if he

does happen to violate such a law and is punished for it, he recognizes the justice of the punishment and blames no one but himself. Things are quite different, however, when he comes up against the second category. To the layman, many laws seem to serve no useful purpose. Hf he is held to account for violating what appears to him a senseless decree, he may claim that he did not know of its existence, or may even challenge its validity. Among the laws that fall into this second category is the following paragraph of our Criminal Code: Any person found wandering in the streets or standing in a public place for the purpose of begging or soliciting alms by displaying injuries or physical deformities, or by using 95

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any other means, or anyone who causes a minor under sixteen years of age to beg, or attempts to persuade or force a minor to do so... is guilty of violating the law and is subject to a prison term of thirty days for the first offense, and to a year’s imprisonment for any subsequent offense . . .

The typical reaction of the man-in-the-street to this “crime” may be seen from the following incident: A Yemenite was brought into court on the charge of

soliciting alms in a public place. After the charge had

been read to him he was asked, as is usual, whether he

pleaded “Guilty” or “Not Guilty.” “TI don’t know what you mean by ‘Guilty’ or ‘Not

Guilty,’ ” he answered

angrily, in the high sing-song

voice peculiar to our Yemenite brethren. “I asked for a nedava (charitable donation). Whoever wanted to give, gave;

anyone who

didn’t want to, didn’t give. What

‘crime’ did I commit?”

He could not be made to understand why, among a

people known as “merciful sons of merciful fathers,” the

mere asking for charity should be considered a criminal

offense for which one could be punished.

The popular mind sees another unresolved paradox in

the very concept of this law. It is common knowledge that

anyone who aids or abets a criminal becomes a party to the crime. When a thief is apprehended, not only he, but all those who were accessories either before or after the

act—the man who supplied the tools used to break into the house or to crack open the safe, the “fence” who received and sold the stolen goods, and anyone else who

had any connection with the crime—are all subject to

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97

punishment. Conversely, anyone who turns a criminal over to the police is admired for his public-spirited action. But this rule does not hold true when the “crime” is begging. Not only is he who aids and abets a beggar

by giving him a few pennies not considered a criminal, according to commonly accepted principles of morality

and ethics he is thought to be performing a commendable

act of charity. And conversely, he who angrily chases away the beggar who woke him from his afternoon nap,

or dares to go so far as to call the police, becomes the object of his neighbors’ derision and contempt. Yet he

has simply obeyed the law. The problem is therefore a very perplexing one for the ordinary—and I dare say,

even for the not-so-ordinary—man: the offender is pun-

ished, but the accessory to the offense is praised.

The majority of those accused of the crime of begging or soliciting humbly admit their guilt in court and accept

their punishment, though deep in their hearts many, no

doubt, resent and protest the injustice done them by the

society in which they live and by the law that denies them, in effect, their right to dwell on God’s earth and to obtain their meager livelihood. From time to time, however, this smoldering resentment explodes into open defiance. Once an elderly man of one of the oriental communities was indicted for soliciting alms in a public place. Listening to his arguments, I realized that he was a man of some learning, and I asked him how it was that he had forgotten the rabbinical injunction to “make your Sabbath like a weekday rather than accept public char-

ity,” as well as the advice of our sages that “it is better

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to flay carcasses in the marketplace than to be dependent on charity.”

At these words he gave vent to all the pent-up bitter-

ness of his heart. “‘We, the poor,” he answered defiantly,

“are expected to live up to all the commandments of the Law, as though the Torah had been given only to us—but they, the rich Jews, long ago threw off the yoke of the Law and the commandments, and there is none to reprove or punish them. Of course it is not right to go begging

in the streets, and our sages prohibited it. But when does this apply? When the rich, too, obey the commandments

of the Torah and willingly give to the poor what was ordained for them—the gleanings of the crops, the tithes,

and private donations. But now, when the rich stretch out

their hands to grasp everything for themselves, what shall the poor man do? Shall he and his children die of

hunger? Is that your justice?” Another aged pauper once found himself in the courthouse, not as a defendant, but simply as a beggar. Seeing

crowds of people rushing in and out, he had decided that this was as good a place as any to ply his trade.

After making the rounds of those waiting in the public

rooms and corridors, he had arrived at the door of the

judge’s chamber. Undaunted, he opened this door and began his customary chant: “A donation! Give a small donation and fulfill the commandments of charity!” Immediately a clerk and a policeman rushed over,

pulled him away and shouted at him, “The judge is in

there!” At this, the old man laughed derisively, “So what? Did the Torah specifically exempt him from the commandment of giving charity?”

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99

If we truly wish to understand the development of the

concepts of charity and justice in Jewish ethics, we cannot entirely ignore this attitude. Perhaps it is indicative

of a national attitude that the Hebrew language is so rich in synonyms and idiomatic expressions for the con-

cept of “the poor.” Poverty, our sages found, purifies

the heart of man and the soul of the nation and brings the Jew closer to his Creator. Thus they explained the

verse, ‘Behold, I have refined thee, but not as silver; I

have tried thee in the furnace of affliction” (Isaiah 48.10), to mean that “the Holy One, blessed be He, exam-

ined all the good attributes He might bestow upon the people of Israel; and found none so fitting as poverty.” This

attitude was pithily expressed by Rabbi Samuel! in the popular adage, “Poverty becomes Israel like a red bridle

on a white horse” (Hagigah 9b). Since the Torah itself

had predicted that poverty would never be completely eliminated—“For the poor shall never cease out of the

land” (Deuteronomy 15.11)—it was clearly imperative

to organize the social and economic structure so as to make it possible for both rich and poor to exist.

It is indeed difficult to find, especially among the

peoples of antiquity, a society as concerned with caring for its poor and needy as was ancient Israel. Among the Hebrews, as long as they constituted an independent

nation, charity was not only a moral principle but also

a legal responsibility of the wealthy toward their less fortunate neighbors. Underlying this concept was the doctrine that the wealth of the rich had been granted them by God, who required the return of a portion of that wealth for the sustenance of the poor. He, the Creator and Lord of the earth, demanded that some of the fruit of the earth be set aside for the orphan and the widow,

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for the Levite and the stranger. The tithes, the gleanings of the fields, the olive groves and the vineyards were a form of agricultural tax that the poor and the landless

had a right to demand as their share, not to beg for as

a charitable gift. What, according to the prophet, was

the religious duty of the Israelite? “Is it not to deal thy bread to the hungry, and that thou bring the poor that are cast out to thy house? When thou seest the naked

that thou cover him . . .” (Isaiah 58.7). Even women

were not exempt from this charge: the woman of valor “stretcheth out her hand to the poor; yea, she reacheth forth her hands to the needy” (Proverbs 31.20). Because the commandments of the Torah were so explicit in providing for the needy, it was not necessary

for the poor to go from door to door soliciting alms or to roam the streets in search of charitable crumbs. Public begging was decried as shameful by the rabbis. But whenever the rich failed to fulfill their obligations, the poor came and demanded their rights.

There is a general impression prevalent today that every beggar is an impostor; that most of the rag-clad mendicants who importune the businessman in his store or the working man waiting for a bus or the youth spending an evening at a café in the company of a young woman,

are in reality rich—that

they have hordes

of

money stored away in their miserable hovels. It is also often said that the cripples who beg on street corners have turned their infirmities into valuable business “assets,” and it is even asserted that some who are too

lazy to work inflict injuries upon themselves so as to prey upon the compassion of their fellow men.

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101

Admittedly some justification for these charges can be

found among the veterans in the procession of paupers

that passes before the municipal judges every Thursday

morning. For example, one frequent member of this procession is a beggar who has become a well-known institution in our city, especially among the frequenters of the smaller cafés. It is his custom to circulate from table to table, stop in front of each, lean on his staff and

issue an ultimatum: “A donation!” Should you refuse,

or attempt to read him a lecture on his unsocial conduct, he does not become excited or attempt to argue; he simply

disappears before you have finished speaking. A little later, when he has completed his rounds of the other

tables, he will return, apparently oblivious of his earlier defeat, and again voice his demand. If you remind him

that he has already asked you before, he still makes no

attempt to argue. His face remains expressionless, and again he disappears silently. It is his to beg. It is yours to refuse.

Whenever this old man appears before a judge, he

offers a new excuse for his continued offenses. Once he

argued that he was not—Heaven

forbid—asking for

charity, but simply for a loan; as soon as his lot im-

proved, he would return the donation with interest. An-

other time he explained, apparently in all sincerity, that the man whose table he had approached owed him money, and that he was merely trying to collect the debt. His final defense was that he was not begging for himself

but for needy relatives with small children—a povertystricken brother and a destitute sister, whose misery he

wanted to alleviate a little. When asked where these poor relatives might be found, he began to mumble with some confusion that at the moment he did not know exactly where they were living, whether in Jerusalem or in Safed,

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but as soon as he succeeded in locating them he would

give them all he had collected. A search of the pockets in his ragged garments unearthed a quantity of copper and silver coins, large and small, as well as some paper

bills—all in all, a considerable

amount.

The

beggar

stared at the little mound of money on the table, but the

expression

on his face remained

one of unperturbed

naiveté, as if to say, “So what? Is there a law against my having some money as well as the next man?”

Looking at him I was reminded of a story I had heard many years ago. In a small Polish town there was a poor

Jew who came, every Friday, to the town’s rich man to

receive his weekly alms—a loaf of white bread, a portion of fish, and some money. One day the wealthy man had occasion to visit his bank and there, standing in line in front of the cashier’s window, he noticed the beggar. Somewhat surprised, he decided to keep his eyes and ears open. When the beggar’s turn came, he saw him

hand the cashier a bundle of ruble notes. A quick glance at the bankbook that the cashier returned to the “beggar” showed him that the account amounted to several hun-

dred rubles. He said nothing. But the next Friday, when

the beggar came for his weekly gift, his benefactor engaged him in conversation, wandering from one subject to another, and finally complained with particular bitter-

ness about the charlatans who, having sizable bank ac-

counts hidden away, give themselves out to be paupers

and live off the charity of their kindhearted neighbors.

The beggar quickly realized that the game was up but,

pretending not to understand the rich man’s insinuations,

he said naively, “You know, people are very funny. Take a whole town full of paupers, without a penny to their name, who give themselves the airs of the rich, eat and drink and live in grand style—and that’s perfectly all right. Nobody complains and nobody criticizes

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Beggars

them. But let one rich man pretend to be poor, and immediately everybody is down upon him. What’s there to get so excited about?” Upon closer examination, however, the tales of the

supposed wealth of beggars are found to be greatly exag-

gerated. First of all, we must realize that one cannot speak of beggars as of a homogeneous class or an organized group. The Thursday morning lineup is made up of approximately one hundred and fifty individuals, each one different from all the others, This is the human flotsam cast up by every corner of the earth where Jews have lived, but particularly from the Near Eastern and

North African countries. Here are the poorest of the poor, the very bottom rungs of the ladder of destitution.

Among them are old men and women as well as children,

cripples, child-mothers with their wailing infants, feebleminded youths. These are the lonely outcasts, who own nothing except the rags on their backs and the bundles on their shoulders, illiterates and scholars, the arrogant and the humble. Here is heard a babel of tongues—all the dialects of the East, and the languages of the West; He-

brew

in every

intonation

and

accent known

to Jews

throughout the Diaspora, Ashkenazic and Sephardic and

Yemenite; sometimes even the Aramaic of the Targum. The one hundred and fifty individuals whose fate I must decide are one hundred

from the other.

and fifty worlds, each remote

The true song of the pauper is yet to be written. Not all professional mendicants are apprehended by

the police and brought to trial. Some have learned ingeni-

ously to evade the watchful eyes of the guardians of the

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law; sometimes the guardians themselves prefer “not to

see” the miserable beggar who obviously owns nothing

but the rags on his back and is only trying to fill his

empty belly. Yet the manners and methods of even these are sometimes brought to the attention of the courts, often

in indirect and unexpected ways. Then it becomes evident that among even the most destitute there are a few enter-

prising individuals, innovators who are not content merely to follow the time-honored practices of their trade, such as going from door to door asking for contributions, or standing on street corners rattling a col-

lection box. Instead, they have perfected more “modern”

means of solicitation, patterned on the methods employed by the large-scale funds and appeals, And like the professional fund raisers, these beggars too have learned the vital importance of “psychological preparation.”

One striking example of this modernization of beggary

was discovered during the trial of a printer, indicted for publishing a public advertisement without proper identi-

fication. The accused pleaded guilty but claimed mitigat-

ing circumstances. He explained that the copy for the

advertisement had been given him by a poor man who

had asked him to prepare a handbill for distribution on the streets. The content of this throwaway was most interesting.

The heading across the top of the sheet, printed in

large bold type, read: ““An Announcement to the General Public and to the Charitable Institutions of our City! Kindly read this to the end so that you may understand our great need!” Then there were two photographs, of a man and a woman, with their names printed underneath. In the body of the text the author bemoaned his and his sister’s bitter fate—that of helplessly paralyzed cripples.

He expressed his envy of others afflicted with “lesser”

Beggars handicaps,

~

105 or whose

afflictions were

more

visible and

could therefore more readily arouse the public’s compassion:

How often have we wished that we were only blind—then at least we would be able to move around by ourselves, without needing someone to wheel us from place to place, and somehow we would manage to support ourselves .. . Yet there are those who doubt that I am really an invalid and suspect me of exploiting my infirmity for “business.” He then turned to “our merciful brethren of Israel”

with these elegiac words:

Give, for the sake of an invalid brother and sister who need

medicines, food and clothing. We cannot stand on our own feet. We have tongues to speak, eyes to see, but arms and legs powerless to do anything. We need others to feed and clothe us, and to care for us like infants. . . .

There followed an outburst of protest against the cal-

lousness of the public and of the institutions toward their unhappy plight, coupled with a veritable stream of blessings for kindhearted supporters: . The institutions do not listen to or care for the poor. For months we have been writing letters, but they simply throw them into their wastebaskets or sell them as wrapping paper for cheese. .. . Hearken unto our plea, so that the Lord may hear your prayer in your hour of need. For the sake of the poor invalids whom you sustain, God will bless you and protect you from all evil... and you will live to see peace in our day, Amen.

Finally he turned to the practical details of his pro-

gram. He had divided the city into zones so as to save time and trouble (and perhaps also in order to give

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everyone an equal opportunity for the practice of char-

ity). This division was

intended mainly

for the con-

yenience of storekeepers, for the author introduced it

with these words: “To the Merchants—I do not want you

to feel that I shall be bothering you continually, for as

you seeI shall be in a different neighborhood every day.” This was his schedule:

“Sundays—Kishon Street and vicinity.

“Mondays—Nahalat Benjamin and Herz] Street.

“Tuesdays—Allenby Street. “Wednesdays—the wholesale market. “Thursdays—Carmel Street.

fruit

and

vegetable

“Fridays—King George and Ben Yehudah Streets.”

The handbill ended with these words:

I beg of you not to complain that I come twice a week or every day. When the boy who helps me enters your store or approaches your table in a café, please give him your donation or else say “no” quickly, but for Heaven’s sake do not let me stand outside waiting, for the sun is too strong for me.

This original beggar, and others like him, are true pioneers, blazing new pathways for their ancient profes-

sion in the land of Israel.

FOUR

Men of Principle There are those who maintain that one of our characteristic weaknesses as a people is an undue love for polemics and verbal hair-splitting, and that we therefore tend constantly to be involved in litigation. I myself have never seen any statistics that indicate whether or not the frequency of lawsuits among Jews is higher than among

other people. I do know, however, that the average Jew

prefers not to become involved in legal quarrels; on the contrary, when he is forced to appear in court—either to seek redress for an injury or to defend himself against an accusation—he looks upon that day as a veritable doomsday. Frequently a litigant, or even a witness, will state— sometimes as a form of boasting and sometimes as a sort of apology—that this is his first appearance in a courtroom. Many add, half ironically and half hopefully, “May it also be the last.” One elderly man, who had been called upon to appear as a witness and was instructed to declare on oath that he would tell the truth, refused to place his hand on the

Bible, protesting that he had “never before been in a

court.” And, by way of explanation, he added, “J am an honest man.” I tried to explain that even honest and 107

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upright men at times have dealings with a court; but he

smiled skeptically. It was clear that he did not really believe me. Even so sophisticated a man as a newspaper editor who testified in court some time ago concluded

his testimony with this remark: “This was my maiden voyage as a witness.”

But one must admit the truth: one does run across indi-

vidual Jews who are “veterans” of the courtroom. To

their credit it should be remembered that, by virtue of

the many kinds of litigation in which such people have become involved, they have enriched our judicial experi-

ence and thus have helped to further the development of

Israel jurisprudence. The ways of the court are familiar to them and, both as accused and as defendants, they engage in the battle of the law with the skill of experts, never surrendering an iota of their rights, whether real or imaginary. Theirs is indeed the zeal of martyrs. First and foremost in the ranks of these valiant warriors we recognize the “men of principle.”

Most of us feel a certain contempt for the stubborn man—the man who is always ready to fight over petty issues, who insists at all times on crossing every “t” and dotting every “i.”” When the quarrel is about money, it is usually said of such a one that he “‘would rather be killed than give up a penny”—and the implication, of course, is that he is simply greedy. But the misers themselves do not recognize their moral deformity for what

it is: they dress this vice in modern garb and call it

“devotion to principle.” There is, for example, the landlord who refuses to accept the rent from his tenant two or three days after it is due, not because he has his eye on another tenant who

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will pay a higher rent and may even surreptitiously hand

over a sizable sum of “key money,” but because “‘a lease

is a lease” and he feels it his moral duty to teach his

tenant a lesson in the sanctity of leases. On the other

hand, there is the tenant who refuses to agree to an increase of half a lira in his monthly rent, requested by the landlord who is struggling to keep up with rising costs, not because he minds the few pennies but because

“the law is the law” and it is his civic duty to observe the rent stabilization law to the letter. Whenever [ encounter cases like these, I am reminded

of the old story about the man who sat in a theater wear-

ing a wide-brimmed hat. Despite the requests and complaints of those sitting behind him, he refused to remove

his hat, insisting that wearing it was a matter of conscience and he would not permit the opinions of others to force him to renounce this sacred “principle.” One woman, infuriated because her view of the stage was

completely blocked, suddenly pulled the hat off his head. To the delight of all, a shining, completely hairless scalp

was revealed, At this, the angry woman turned to the man and exclaimed, “You call it ‘principle’? I call it ‘baldness’ !” I must confess that I frequently echo her sentiment when I am called upon to decide a case supposedly based on principle, but where the real motivation is obviously far more materialistic. Consider the following example

of “devotion to principle”:

A man, an active leader in civic organizations, once

mailed an announcement to a newspaper, to be printed

in its column for public advertisements of lectures and

meetings. On the envelope he pasted a two-mil stamp. The officials of the postal service decided, however, that this

item fell into the category of regular first-class mail and

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therefore required a five-mil stamp. They marked the en-

velope with a special stamp, forwarded it to the newspaper and asked the newspaper to pay a fine of twice the

difference between the stamp and the required postage—

in short, six mils. The editorial office refused to pay the

fine and chose not to accept the letter. It was then returned to the sender with the request that he pay the fine, since

the postal service had performed its task and had at-

tempted to make the delivery. But the sender in turn

refused to pay the six mils. Now the postmaster turned

to the judicial branch of the government and with its help sued the sender for the sum of six mils plus court expenses. Thus the wheels of the legal machinery were

brought into motion. The clerk of the court issued a summons by which Ploni ben Ploni (John Doe) was

ordered to appear before the court on such and such a day to answer the charge; failure to appear would mean losing the case by default. The summons and a copy of

the charge were delivered to the defendant. On the ap-

pointed day there appeared in court the defendant and a representative of the plaintiff (the government). “Of course the issue at stake is not the money,” argued the defendant. “Why then do I refuse to pay the fine? Because this announcement was in the nature of secondclass mail and therefore required, to the best of my knowledge, only a two-mil stamp and not five mils, as the post office demands.” He was prepared to engage in a holy war for a “matter

of principle.” Now the court became involved in a complicated legal

issue. “The burden of proof rests upon the plaintiff” is a basic rule of jurisprudence. Thus the government had

to prove that this item of mail required a five-mil stamp

and no less. The government proceeded to substantiate

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ill

its case. Several sessions were needed for this. At the first

session, the court heard the arguments of the litigants; at the second session, the court listened to the testimony

of witnesses and experts; at the third session, the court

issued its decision. For each session the representative of the government had to travel from the capital to the town in which the case was being tried, once accompanied

by several experts—all of which added up to a consider-

able expense in addition to the time consumed. In the end, the defendant lost the case and was ordered to pay the amount of the original claim, six mils, plus court

expense, which added up to a sum more than eight hun-

dred times larger than the fine itself. Up to this point it is possible to grant that the defendant had some justification on his side. After all, no citizen has to give in to the demands of another, even if the other

is the government of the State of Israel, unless the de-

mand is legally justified, and the question of legality can be settled only by a court. But once the court had made

its decision, there was no further room for foolish ob-

stinacy. We say to the loser, “You have fought a good fight and lost. Now pay up.” But our man of principle

thought otherwise. He still refused to pay. Warnings and threats of further lawsuits fell on deaf ears.

What did the government do now? It turned to the

executive department of the court; and thus a third governmental agency became involved in the matter of col-

lecting the fine of “six mils plus expenses.” Again rou-

tine procedure was followed: First a request for payment was sent to the defendant. When he did not respond, a writ of attachment was issued against his property. But it developed that the property was held in his wife’s name; his own possessions were not sufficient to cover the debt.

The government did not stop there. The defendant was

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ordered to submit to an investigation of his financial status and ability to pay. All of these steps were added—

penny by penny—to the total charges; the debt, which had begun with six mils, had now swelled beyond all recognition. After a hearing and investigation, it was de-

termined that he could pay off his debt with monthly

payments of 250 mils. And so, for more than a year, this man

stood in line, once a month,

before the cashier’s

window of the court. Principle—or obstinacy—can come dear.

The following is another example of how a principle

can be distorted: One day a German Jew was driving his elegant car through a suburban neighborhood. The road was unpaved and the car became stuck in a sand-filled depression. When he realized that he could not proceed, the driver left the car and walked over to a nearby rest station where he asked a taxi driver—an Oriental Jew—to help him out of his predicament. The latter drove over to the scene of the accident and, after much physical labor and with the help of the taxi, succeeded in getting the car out of the hole and back on the road. The owner of the car thanked his rescuer and prepared to drive off. But now the cab driver asked to be paid 100 mils, the equivalent of a short taxi ride. At this the German Jew assumed an injured expression and declared that he considered it a matter of principle not to pay for what should be, in his opinion, an act of friendly assistance. The cab driver, seeing that he was not likely to collect a fee, decided

to teach the German

Jew a lesson.

He

blocked the road with his taxi, so that the elegant car

again could not move. Foaming with anger, the owner

A Fata Bas gaan

er CS naa iSacedes

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rushed to the nearest police station and returned with a policeman. After listening to the arguments of both, the

officer of the law decided that two wrongs did not make a right and that the taxi driver could not block a public

thoroughfare; he could, however, sue for payment. Immediately notebooks and pencils were pulled out; names, addresses and license numbers were written down. A few weeks later the owner of the car was summoned to appear in court to answer the charge brought by the taxi driver, who was suing for his fee of 100 mils plus court expenses. The “man of principle” was a busy executive and could not afford to take time out for an appearance in court. He therefore engaged a lawyer to represent him.

The case required two court sessions. At the first, only the plaintiff and the counsel for the defense appeared. But for the second session the defendant was subpoenaed to

appear in person as a witness. He took this opportunity to deliver a carefully prepared oration on the sacredness of his “principle.” In addition to his testimony, several witnesses who had seen the incident were heard. The decision of the court is immaterial to our story. But though he may have won the case, I venture to doubt that the owner of the elegant car ever again saw fit to

justify, by an appeal to “principle,” his refusal to pay a working man’s wages. If, in the above cases, the obstinate adherents to “principle” suffered only annoyance or relatively minor financial loss, there are times when a foolish consistency can lead to even more serious results. The following incident, which was told to me by a fellow magistrate, demon-

strates that even today there are some individuals who

are ready to be martyrs for the “sanctity of the name”—

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though here we speak not of martyrdom for the sake of Heaven but, simply and literally, for a name. This is the story: In Jerusalem there lived a man who practiced an

honorable profession and whose name was graced by a

title of academic distinction. His profession—medicine;

his title—‘“doctor.” Let us call this man Sigmund Schwartz—or rather, “Dr.” Sigmund Schwartz, for he insisted on being addressed by his full title. If anyone

presumed, either verbally or in writing, to address him

as plain Mr. Schwartz or even as Herr Schwartz, the good

doctor would pretend not to hear or see and would not

deign say to name plain:

to answer. At best, he would tum to the speaker and him, frigidly and with exaggerated emphasis, “My is Dr. Schwartz, if you please.” His meaning was “You had better remember that you are speaking

to a very important man.”

Yet in one respect Dr. Schwartz did not differ from ordinary mortals: he lived in a rented house and was subject to the same laws as all other tenants, with or without academic degrees. His landlord was a simple man, a Polish Jew who had no formal education, but was a prac-

tical man with a healthy sense of humor. As the end of the term of the doctor’s lease approached, the landlord hoped to rid himself of this tenant and to rent the house to someone else who would pay more, that is, he wished to exchange learning for money. But in the meantime the government had enacted laws for the protection of tenants in this time of housing shortages, and these laws shielded the learned and the unlearned im-

partially. Thus the landlord was forced to bide his time

and wait for some opening to present itself. He did not have to wait very long. The year’s lease was up, and the next year’s payment was due, partly in. cash and partly

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in promissory notes, as had been stipulated in the lease. But our good doctor forgot to pay. Now it is well known that failure to pay the rent on time renders a tenant subject to eviction proceedings. But the shrewd landlord decided not to act hastily. He wanted to make completely

sure of his case and to close in advance any loophole that

his tenant might use.

He sent his son to remind the doctor that the rent was

due, but not without carefully instructing the boy as to the exact words he was to use. The boy carried out his father’s instructions faithfully. He went to the doctor’s

house,

rang the bell and, when

the doctor opened

door, began his well-rehearsed speech:

“Mr. Schwartz, I have come to remind you...’

the

>

Before the boy could go on, the doctor slammed the door in his face and the rest of the speech remained undelivered. Incidentally, the father had made sure to have two witnesses on hand who would testify that the tenant had refused to listen to the landlord’s message.

When the landlord was informed of the outcome of the

errand, he was delighted. But being a very cautious man who had had some experience in legal matters, he realized that written evidence is far more dependable than oral testimony. So he wrote his tenant a letter—not unfriendly and not at all threatening—reminding him that the year’s lease was up. Since he no doubt wished to remain in the house for the following year, would he be good enough to forward his agreed-upon payment promptly? The landlord signed the letter with the customary expressions of courteous friendship, enclosed it in an envelope addressed to the proper street and house number—but with

a mere “Mr.” preceding the name Sigmund Schwartz—

and sent it off by registered mail. The trap was baited

and the victim walked straight into it. When the letter was

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delivered and the doctor saw that it was addressed to

“Mr.” Schwartz, especially when he recognized the land-

lord’s handwriting,

this man

of unswerving

principle

refused to accept it. The letter was returned to the sender, duly stamped by the post office: “Refused by addressee.” Now the landlord had all the evidence he needed: not

only had the doctor failed to pay the rent, he had before witnesses refused to listen to a friendly message and had returned a written reminder without bothering to read it.

A few days later the doctor, much to his surprise, received

a summons—addressed quite properly to Dr. Sigmund Schwartz—to appear in court to defend himself against his landlord’s request for a writ of eviction based on his refusal to pay the rent. And so the court had another case of “principle” to decide, this time involving the dignity of a name and a lease, a matter of primary importance in this era of housing shortages.

Finally I wish to include a very prosaic example taken

from everyday life, in which the chief character is not a man, but a woman of principle. A young Yemenite girl had been employed for two consecutive years as a domestic helper in the house of a wealthy family. When she at last wanted to leave and gave notice, her employer still owed her two weeks’ wages. The lady of the house refused to pay the girl, who

was then forced to sue in court for what was rightfully hers. When the case was heard, the employer did not

attempt to deny the debt, but insisted that she had the right to subtract from the wages a sum that she claimed the girl owed her. Thereupon she took a sheet of paper

from her pocket book and proceeded to read a long list

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of “debts”: “On such and such a day the maid broke a pottery vase valued at... On another day she broke a fruit bow] whose price was . . . On two days she failed to show up for work without giving any reason . . .” and so on and so forth. Before she had completed her reck-

oning, it seemed that the girl not only had no money

coming to her, but actually still owed her employer a considerable sum, and it was only due to the latter’s kind-

ness that she was not suing for payment. The judge, hoping to settle this petty dispute with a

peaceful compromise, conscience.

“Come

tried to appeal to the woman’s

now,” he said to her, “the girl has

worked for you for such a long time, and whatever damages she may have caused were certainly not intentional. Don’t you think it would be better to forgive and forget? Give the poor girl the wages you are still holding and don’t become involved in an ugly lawsuit!” The fashionable lady shrugged her shoulders disdainfully and chirped in her high, shrill voice, “I want Your Honor to understand that it is not the money I care about. But I must insist on the principle that a maid who leaves her employer is responsible for making good any damages she has caused.” After a while, however, it became clear that this was

not the real principle involved, and that the woman’s true motive was quite a different one. Not only was the fine lady ready and willing to forget what the maid “owed” her, she was even prepared to add a lira to her monthly wage provided the girl came back to work for her, for “in these days it is just impossible to get any reliable help.” But the young Yemenite would not give in so easily. Still rebellious, she declared:

“She wants to pay me only fourteen liras a month, and for that I should even sleep in with the child three nights

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a week? My father says: “Today there are no more slaves, and no one needs to work for nothing.’ Today we work by the hour—fifteen g’rush per hour, and one meal a day.

She pays—I work; she does not pay—I don’t work . . .”

And so the litigants refused compromise.

to accept the judge’s

Lest we forget, however, that there are a few truly dedicated souls to whom principles and ideals are more than facades behind which to hide their avarice, let us turn to the case of “the man who challenged Copernicus.” It is more than four hundred years now since the Polish astronomer Copernicus published his heliocentric theory of the solar system, according to which the earth, like all

the other planets, revolves in a fixed orbit around the sun.

Some decades later this theory was substantiated by the

experiments of the Italian Galileo Galilei, and since then,

despite the original opposition by the Catholic Church, its scientific validity has been universally accepted. Even if here and there a few isolated individuals have held out against it, I have never heard of any other instance—certainly not within the last two centuries—of a court of law

being asked to decide whether or not this scientific theory is true.

But in Palestine we had such a unique case, brought to court by one of our fellow citizens—“a friend of humanity irrespective of party or religion,” as he describes himself—who had discovered (so he claimed), after forty years of research and experimentation, that the Copernican theory is entirely false and that the earth is indeed fixed and immovable, while the sun and the other

planets revolve around it.

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As a citizen of a democratic country, this scholar was

free not only to believe his own theory, but also to attempt to persuade others of its truth. But this did not satisfy

him. He felt it to be his sacred duty to free all humanity

from its chains of error and to reveal the true glory of the Creator’s world to benighted eyes. For this purpose he turned to the intellectual center of Jewry, the Hebrew University in Jerusalem, urging the famous school to

establish a chair for the study and teaching of his newly

discovered truth. At the same time he turned to the foun-

dation for scientific research that is associated with the University with the request—or rather, the demand—

that it send a commission to Tel Aviv to perform the experiments necessary to demonstrate the validity of his

theory. Why Tel Aviv? For two reasons. First, because he, the originator of the theory, lived there; secondly, because Tel Aviv is located on the shore of the sea “into which the sun disappears every evening for its nocturnal immersion.” It is not known just what reply was made to this unusual communication. What is known is that not long afterwards, the University found itself summoned to answer a charge brought by the “scientist” for its refusal to give due consideration to his remarkable discovery. And so, about four hundred years after the death of Copernicus, his theory of the solar system was to be the main issue in the unusual case of “Ploni vs. the Hebrew

University of Jerusalem.” Rarely indeed is a court asked

to decide questions of such world-shaking significance, or to settle a dispute between the giants of science across the gulf of centuries.

The complaint that this man brought before the central

court in Jerusalem consisted of thirty paragraphs cover-

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ing twenty sheets of foolscap, in addition to an introduction and a concluding statement.

The introduction read as follows: “THE 1ssuE: Compensation for damages caused the plaintiff by the failure of the defendant (i.e., the Hebrew University) to comply

with the plaintiff’s requests.” And the concluding paragraph: “AMOUNT

OF COM-

PENSATION: To be determined by the court.” (Incidentally, when the court urged the plaintiff to give some estimate of the compensation to which he felt entitled, he put

the sum at 5,000 Palestinian pounds—a modest enough figure under the circumstances.) It would be impossible to repeat here all the arguments

and exhortations contained in that brief, but I shall try

to give a summary of the plaintifi’s own description of his momentous discovery. It was simple in the extreme: He had come to the conclusion that the sun is actually a large leather ball filled with energy, pulled along by the planets and emptied at night into the Mediterranean Sea (from which all this energy could again be extracted by man), while another sun shines on the other half of the world’s sphere. In other words, the planets are constantly playing a gigantic game of “catch”! All that was needed

was for the University to conduct the experiments nec-

essary to document this discovery for the enlightenment of all humanity. (This case, incidentally, antedated the development of nuclear fission by several years.) The motives of the plaintiff were entirely altruistic: he was a dedicated friend of mankind and sought no personal gain. “The value of this discovery is at least fifty million pounds.

Yet,

although

I have

expended

much

money and effort on this research and have thereby be-

come impoverished, I will not sell the rights to my dis-

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covery, for I intend to dedicate it to the benefit of

humanity.”

Why had he turned to the Hebrew University? The

mere fact that he was now suing that institution in court indicated that he felt entitled to demand its assistance, and was not asking its help as a favor. Again his explanation was simple: the salaries of the faculty of the University are paid by the Government (although he did not

explain how he had obtained his information as to the

details of the financial arrangement) ; therefore the professors are obligated to serve the Government to the best of their ability. Since the Government is simply the representative of all its citizens, it is the duty of the University

to explore to the fullest extent any new discovery brought to its attention by any citizen.

This unusual plaintiff expected the court to do the fol-

lowing for him: to determine that the University had committed a crime against humanity, against science and against the citizens of Palestine; to punish the guilty, who had permitted envy and spite to stand in the way of true dedication to research and knowledge; to order the

University to compensate the plaintiff for his financial

and moral suffering, and to pay the expenses of the trial; and to order the University to utilize all its resources for the further investigation of this discovery, and to instruct it to give full credit to the plaintiff for his outstanding contribution to the advancement of science. And so the battle was on. The University, challenged to defend its good name, and possibly its treasury, against

this extraordinary charge, engaged the services of a wellknown attorney; and a trial unlike any other began to unfold. I need hardy go into all the details of the case:

the final outcome was a severe disappointment to the hopes of the dedicated “scholar.” The court found no

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valid basis for the plaintiff’s claims against the University

and (as if that were not injury enough) he was also instructed to reimburse the University for its expenses. But the true visionary is not easily discouraged. A few weeks later this indefatigable upholder of principle was

dispensing handbills on the streets that appealed, in bold

type, to the general public for the justice he had not found in the courtroom.

FIVE

Variations on the Theme of Injustice When Rivka Sabagh’s turn came, and the syllables of her

name rolled out of the clerk’s mouth and echoed through

the long corridors of the courthouse, she rushed up to the bar and.stood there without any sign of fear. Indeed, why should she be afraid? The Hakham—whose advice she had sought when she had found the summons afhxed like an amulet to her door—had examined the document care-

fully, stroked his thin, pointed beard, stared straight at

her and said, nodding his head gravely, “It is not possible, Mrs. Sabagh, it is not possible to evict you from your home. Do not be frightened and let not your heart tremble. Tell your story to the judge and he will deal justly with you, and you will be helped.” Rivka had rejoiced at the words of the Hakham; yet she had asked shyly whether she should not seek the help of someone learned in the law to plead her case before the judge. At this the Hakham adjusted with trembling hands the spectacles that had slipped down his nose,

curled up his body until he looked like a large question

mark, and scolded her as one scolds a child who has said

something foolish:

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“Have you so much money, Rivka, that you must scatter it to the winds? Why do you need a lawyer to speak for you? I will write down a few words that you

can give to the judge, and on the day of the trial I will send with you Rabbi Avraham, ‘the Minyan Maker,’ to

explain our customs. And the judge, too, has a Jewish heart and a Jewish head and will not dare to tamper with the law. There is no need to worry, Rivka.”

Even as he spoke, the Hakham took pen and ink and

wrote something on a sheet of paper, which he then gave to Rivka. She rushed to the office of the court, handed

the paper to a clerk to be transmitted to the judge and

returned home to await the day of the trial. Now, standing before the judge, she remembered the Hakham’s reassuring words and silently blessed him. One by one the landlord and all his relatives stood up

in the witness stand, placed their hands on the Holy Book and swore to tell the truth. What was their argument?

That their family was a large one, blessed with many

small children, and that they needed more than the one

room they were all living in together. They knew of a two-room apartment in the next street to which Rivka could move if she were willing. They only wanted their own house, the two rooms they had rented to Rivka two

years ago. The judge wrote down all that they said. When they had finished, he inquired whether Rivka wanted to ask them any questions. Rivka shook her head and smiled deprecatingly, as if to say: “Why should I question them? When a Jew takes an oath on the Holy Book, of course

he tells the truth.” Actually the proceedings had little meaning for her. Soon the judge would hear what she had to say and then he would understand everything. Of

course he would understand. The Hakham had said so.

°

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125

After the landlord had finished his testimony, Rivka

ascended to the witness stand, placed her hand on the Bible, softly repeated the words of the oath after the clerk, looked straightforwardly at the judge and began: “Your Honor, I simply cannot leave the house. Even

our Hakham said that I must not leave it. Two months

ago my elder sister died in that house. Just before she

died she said to me, in front of witnesses: ‘My sister

Rivka, apple of my eye and beloved of my heart, behold, my end is rapidly approaching. God has given me no children to honor my memory, and my soul will find no

rest in the next world unless you, my sister, take this

sacred duty upon yourself. Only if you do me this last

kindness and observe the customs of our people will I

find my eternal rest and repose.’ Thus did my sister Miriam speak to me before she closed her eyes forever. And now it is my sacred duty to remain in this house until the year of mourning has passed, to guard her ‘soul candle’ and to perform the last honors for her. How can I move to a new dwelling while her soul is still wander-

ing within these walls seeking redemption?” Rivka wiped a tear from her eyes and grew silent.

Now Rabbi Avraham, ‘the Minyan Maker,’ stood up in the witness stand. He was an old man dressed in tattered clothes, who gained his livelihood by arranging prayers in the houses of mourners.

“Our people,” he began, “the Jews of Western Algeria

and Morocco, observe the ancient custom of lighting a

‘soul candle’ for the dead in the room in which they

passed from this life. We also arrange a minyan four

times during that year: after the first seven days, after the first thirty days, after nine months and after twelve months. At these times a quorum of ten Jews gathers in

the house of the deceased to pray for the soul. They eat

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something prepared by the mourners and then sit up all

night praying and studying. It is impossible, Your Honor,

for the family of the deceased to forsake the soul in that house and go elsewhere.” The old man finished speaking and let his head sink

down on his chest.

When the landlord’s attorney began to ask him for the origins of this custom, and why it was observed precisely for twelve months, and whether it was written in the

Torah, the old man stood erect, half-closed his eyes and

looked angrily—and as if in astonishment—at this coarse Jew who did not know the customs of the children of

Israel.

“When the soul leaves the body in which it has dwelt, it wanders for a year through the house, for it is written

that ‘the punishment of the wicked lasts twelve months.’ It seeks a place of rest, and the surviving members of the

family must help it find redemption. I do not know

whether this is written in the Holy Book; but that makes no difference. It is a custom that was handed down to us by our forefathers, and an ancient custom is as binding as a law of the Torah.” Rivka was confident that Rabbi Avraham had spoken wisely, When the judge asked her whether she wished to

say anything more, she replied that she had nothing fur-

ther to add; she had already told and explained everything. One can move a table or a chair from place to place; one can even move a living man or woman or child; but how can one move a disembodied soul? The attorney for the plaintiff delivered a Jengthy summation. He read from books, he swayed his body, he waved his hands. But Rivka did not understand a single word of what he said. She sat like a stone statue; only her lips whispered a silent prayer. Then the judge again

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began to write. He wrote and wrote, and to Rivka it seemed that there would never be an end to his writing. At last he began to read what he had written. Rivka did not understand everything but, out of the multitude of

long words and complicated phrases, she finally gathered

that the wise Hakham had been wrong, that the law is concerned about the living and not about the souls of the dead. One of the judge’s sentences in particular engraved itself on her memory: “The ancient custom of lighting a candle for the soul of the dead, and of saying prayers in his memory in the same room in which he died, cannot take precedence over the desire of a landlord to use the dwelling for his own personal needs. . . .” As Rivka left the sanctuary of justice, her heart was heavy within her and she burst into bitter weeping.

When the judge asked Sa‘adia whether he wished to

present his own case although he had not studied the law,

Sa‘adia looked at him with astonishment and said, “Have

I not a mouth to speak? And will not justice light my

path? The case is as simple as it can be—complicating it will only do harm. No, I do not want anyone else to speak for me. I shall speak and you shall judge.” And with a steady flow of words, with facial expressions, gesticulations and a trembling voice, Sa‘adia began to unfold his tale before the judge.

Since the day when he had come from Yemen (he had

then been a very young boy) he had been determined to acquire a plot of land and a home of his own in the Holy Land. With his heart’s blood and the sweat of his brow he had labored and saved, penny by penny, year after year. And when at last the dream had come true—a brick

house, with two beautiful rooms and a porch looking out

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on the green hills—his happiness had been great. He and

his family had left the poor small shack in which they

had lived all those years and moved

into the clean,

spacious brick house. But their joy did not last. War broke out. Gaining a livelihood became more and more difficult; his son was drafted into the army and could no

longer help to support the household; his daughter, Mazal, who had always given him all her wages, married

and went to live with her husband. He and his wife no

longer needed such a large house and so they decided to rent it to an Ashkenazi couple, while they went back to

live in a small shack, as in the beginning. Sa‘adia was

growing old and weak; his eyesight was poor; work was

hard to find. Now he lived hoping for the day when his son would return from the war and help his poor old

parents. But a greater misfortune yet was in store for

Sa‘adia and his wife in their old age. The son returned from the army lame and blind. Their daughter Mazal became a widow and returned to her father’s house with

a three-year-old child. Now they were again crowded into

the one-room shack. There simply was not enough room

and they would have to move back into the brick house— not in gladness, as on the first occasion, but out of desperate need. No one could sleep in the one room, where the wounded son groaned constantly, while the child cried for its father. The doctor had ordered complete rest for the invalid and Sa‘adia and his wife also needed some

sleep. He had no choice; he had to go back to his house.

But now the Ashkenazim refused to move out; and so

Sa‘adia had had to turn to the court to seek justice. The judge listened attentively to the story. When

Sa‘adia finished, he asked him whether he had brought

any witnesses.

Variations on the Theme of Injustice

129

“Witnesses for what?” Sa‘adia tilted his head to one

side and gazed in astonishment at the judge.

‘*Witnesses who can testify that there is another dwelling available for your tenants, as the law requires,” answered the judge calmly. Now Sa‘adia became excited and could no longer con-

tain his anger. “Do J have to provide a place for them to

live? And what if I cannot? Will they then continue to live comfortably in the house which I built with my very blood and marrow? These Ashkenazim are only two

people, and a dog; each has a room for himself, while I

and my family—amy old wife, my sick son, my widowed daughter and her child—we live like cattle in one small room! And I have to worry about where they will live? Is that your justice?” At last Sa‘adia sank down on his seat and grew silent. Sa‘adia, ignorant of the requirements of the law, had brought no witnesses, and the judge had no choice but to dismiss the case, And so the Ashkenazim would continue to live in the spacious house, while Sa‘adia and his family would return to their hovel and to their misery. Ashamed and humbled Sa‘adia rose from his seat, turned toward the door and, without another glance at the judge, disappeared from the courtroom.

For many years a famous and respected Arab judge occupied the bench of one of Jerusalem’s magistrates’

courts. This judge was known for his absolute honesty and integrity, but also for his quick temper and irascibility. Whenever a litigant or a witness spoke hesitantly, as though trying to hide the truth, the judge would flare up, pound his gavel, reprimand the offender severely;

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and at times he would forget himself and insult the hapless victim of his anger. One day he was hearing the case of an Arab woman

who had brought a complaint against another Arab. The plaintiff appeared in court dressed in loud, flashy clothes and heavily made up. Her lips were painted a bright crimson and her eyelids were heavy with mascara. Her entire manner displeased the judge, and her speech seemed to him to indicate arrogance and insolence. When the woman had finished her testimony, the judge

glared at her and said, slowly and distinctly, as though

declaiming an epic poem: “Woman, I do not believe a

single word of your fabricated tale! Lies and deceit issue forth from your lips! Your ways are the ways of a harlot and a streetwalker!” The woman grew pale and began to tremble as though

in a fever. Then, in a subdued but clear voice, she said,

“Your Honor the Judge! In a court of law all are equal,

great or small, rich or poor, exalted or humble. What a

man or woman does outside the walls of the courthouse must not influence the scales of justice in any way. I turned to you, Honored Judge, because this room is the

fountainhead of justice. I believed that you would listen to my plea, weigh the arguments impartially and make your decision strictly in accordance with the law. Instead you have publicly shamed and insulted me. Is that what

you call justice?”

The judge had bent his head low, but kept his eyes fixed on her lips. When she finished her outburst, a hushed shudder went through the audience. Everyone expected a storm to burst out and engulf the audacious woman. But suddenly the judge stood up, descended slowly from the rostrum, took his stand in the dock of the

Variations on the Theme of Injustice

131

accused, turned to the court clerk and said in a loud,

ringing voice, “Write down what I tell you.” There was general amazement. The bewildered clerk took his pen, dipped it in ink, looked around like one who

cannot understand what is happening to him, then bent over his notebook and waited for the judge to begin. The judge began to speak and the clerk wrote down every word, as follows:

“To the Magistrate’s Court in Jerusalem: a Writ of Complaint. “The plaintiff: Monira, daughter of Muhammed Hassan Alkodessi.

“The accused: Judge Ploni ben Ploni (X son of X). “On the —th day of the month , in the year ,

the accused, while presiding over the magistrate’s court, made certain remarks about the plaintiff, using the words

‘harlot’ and ‘streetwalker.’ The plaintiff finds these words

insulting and defamatory. She therefore appeals to the court to pass judgment upon the accused and to punish him to the full extent of the law.”

The judge then directed the clerk: “Read the charge to the accused and ask him how he pleads.” The clerk arose solemnly, read the charge and added,

“Does the accused plead guilty or not guilty?” The judge-defendant answered in a low voice, “I plead

guilty as charged.”

A subdued whisper of surprise rustled through the tense courtroom. This was unheard of—a judge pleading guilty and publicly submitting to punishment! The judge passed his hand over his face, closed his eyes for a moment, and then ordered the clerk to take down the verdict. And these were the judge’s exact words as written by the clerk:

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The accused pleads guilty to the charge of slander, and the court has no choice but to punish him. Justice is clearly on the side of the plaintiff. In the courtroom there must be no discrimination based on differences of status: all are equal before the law. Neither a person’s manner, nor his attire, nor even his habits of speech can prove his innocence or his guilt. Man sees the surface of things; but justice must probe the heart. All who turn to this court seek justice, and it is the duty of the judge, as the representative of the law, to deal impartially with all. A judge who presumes to insult a man or woman standing before him is guilty of perverting justice and merits a severe punishment. The accused is therefore found guilty and is sentenced to pay a fine of five liras.

Aiter the judge had finished pronouncing the sentence,

and had signed it, he called a guard to conduct him to the

cashier’s office. There he paid the fine he had imposed upon himself. Then he returned to the courtroom, resumed his seat and proceeded to re-hear the case from the beginning.

Some years ago there lived in the port city of Haifa

an English judge whose best friend was a Jew. One day this Jewish friend came to the judge and told him that he had received a summons from the court in Shechem. He was accused of two offenses: exceeding the speed limit and driving without a license. “You know,” he added, “that I sold my car long ago and, since I have no car, of course J have no driver’s

license. Tell me what to do.” “That’s very simple,” answered the Englishman. “Tell

the judge your story just as you told it to me, and if what you say is true—and I know that it is—the judge will realize that a mistake has been made and will dismiss

the charge.”

Variations on the Theme of Injustice

133

The accused followed his friend’s advice. On the ap-

pointed day he arose early and took a bus to Shechem, rushing to make sure that he would get to the court on time. In the courthouse he had to wait more than an hour for his turn. But when he entered the courtroom he was overjoyed to see his good friend, the Englishman, on

the judge’s bench. Now he was certain that he had only to begin speaking and the case would be dismissed with-

out further ado.

The court clerk read the charge and the defendant, calm and confident, began to speak: “Your Honor... the car... it was a mistake ... the license...”

Before he had managed to utter a complete sentence,

the judge curtly interrupted him. “What are you babbling about? Are you going to try to tell me that you were rushing to a sick relative? Or that you changed suits that day and forgot your wallet? I hear these excuses every day and I am sick of them! The clear fact is that you were speeding. The fact is that you were driving without a license. There is no excuse for that! You are fined three liras. Next case, please.” The man could not believe his ears. Confused and unable to say another word, he did not even dare to look at his “friend,” the judge. With head bent low and faltering steps he rushed out of the courtroom, paid his fine

at the cashier’s window and, seething with anger, re-

turned home. But the inexplicable conduct of his English friend continued to gnaw at his heart. “Is this the way a friend acts?” he asked himself. “Is this justice?” Bitter thoughts troubled him all day long; he went about his business gloomy and distraught. At last he determined not to rest until he had ferreted out the truth of the matter.

OFFENSES

134

AND

OFFENDERS

That same evening he met the judge at a café and,

without any attempt at embellishment or diplomatic introduction, he angrily demanded an explanation. The judge smiled ruefully. “My dear friend,” he said, placing his large hand on the man’s shoulder, “you will have to forgive me. I had no other way out. I simply had to bring you into court, find you guilty, and pronounce a sentence.”

The Jew’s face now expressed even greater bewilder-

ment. These words of explanation were utterly incom-

prehensible to him. “Just put yourself in my place for a moment,” con-

tinued the judge pleadingly. “One morning a few weeks ago I was driving to the court in Shechem. It was late and

I still had a long way to go. I was rushing and, without

realizing

it, was

driving faster than the speed

limit

allowed. Suddenly a traffic policeman stopped me and

accused me of speeding. He was absolutely right and I had no excuse to offer. He asked me for my driver’s

license so that he could make out his report. But I was

ashamed to show him who I was, and pretended that I had left my license at home. ‘Aha,’ said he with a sneer,

‘another violation—driving without a license.’ Then he asked me for my name and address. Now I was really trapped. How could I, a judge, tell him who I was and make my offense public? At that moment I had a wild

idea: I decided to put all the blame on one of my friends. And who is my best friend? So I gave him your name and address, and that’s how you received that summons.” By now his Jewish friend was beginning to relax; his anger melted quickly. “Tell me yourself—what else could I have done?” pleaded the Englishman penitently. “A friend in need is a friend indeed, and I hope that you will forgive me.”

Variations onthe Theme of Injustice

135

With these words, he opened his wallet, took out three liras and gave them to his friend. It was the evening of the gay holiday of Purim, after the Adloyada procession. A merry-making group of Tel Aviv Jews gathered in the home of one of the crowd and

there continued celebrating with joy and revelry, as is

the time-honored custom on Purim. Nor did they neglect the tradition that encourages drinking on this day; the more zealous among them were thoroughly intoxicated, conforming to the commandment to drink “. . . until one cannot distinguish between “Cursed be Haman’ and

‘Blessed be Mordecai.’” In the midst of this carousal

someone suddenly suggested a drive to the river Yarkon. The suggestion was greeted with shouts of “Hurrah!” and the entire crew,

rollicking and

befuddled,

rushed

into the one car that was available to them. But the car could not possibly hold them all. Those who could not

find room inside climbed up on the roof or stood on the running boards on either side, and one intrepid soul even found his way onto the hood that covers the motor. This last reveler, who had chosen for himself such a conspicu-

ous seat of honor, was at other times a dignified judge

of the magistrate’s court! The happy, boisterous company raced noisily and joyfully through the streets of the city, heading in the general direction of the cool waters of the Yarkon. Suddenly, blossoming forth out of ambush, a uniformed policeman appeared. He blocked the way of the joy-

riders, stopped the car, pulled out his notebook and—as

though this were any ordinary day of the year—pro-

ceeded to take down the name and address of the driver,

his license number and his description. “Happy Purim!”

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he mockingly called after them when he put away his notebook. “We’ll meet again in court!” A few days later the owner of the car received a sum-

mons to answer to a charge of reckless and dangerous driving. On the appointed day he appeared in court and, to his great surprise, found that the judge who was to hear his case was none other than his friend, the same one

who had participated in that wild ride sitting on the car’s hood!

The charge was read and the defendant shamefacedly admitted his guilt. But he was taken aback when the judge

began to read him a lecture on his irresponsible conduct: “You reckless drivers! What do you care about en-

dangering the lives of peaceful, law-abiding citizens!

You invite a friend for a ride and then cannot find room for him on the back seat of your car—as befits a guest-—— or even up front next to you, but you let him sit outside on the hood, the most exposed and dangerous spot. Did you stop to think what could have happened to him? How could you ignore the danger in which you were placing him? J shudder when I think how he might have slipped and been crushed like a dog under your wheels! He was probably a young man—or perhaps my age. How would you have been able to face his widow and his orphaned

children, had anything happened to him? .. .”

The hapless driver listened silently to this torrent of accusation and did not dare to raise his head. The whole thing seemed like a fantastic nightmare. Only the judge’s last words, “. . . a fine of two liras and a strict warning

not to let this happen again . . .” penetrated his consciousness and made him realize that the trial was over. He hurried to pay his fine and fled from the courthouse. That same day a sealed envelope was delivered to his

home. When opened, it was found to contain a check for two liras, signed by his accomplice, the judge.

COURTROOM

HUMOR

ONE

Sources of Humor

At first glance it might seem that “humor” and “courtroom” do not belong together, that they are, indeed,

mutually exclusive and contradictory. Most people think of a court as a crucible of agony and affliction, where the voice of suffering is never still, where the wheels of

justice, groaning under their heavy burden, grind end-

lessly to destroy their luckless victims, of whom they leave only a fine, powdery dust. Does any sane man voluntarily enter a courtroom? Does anyone ever leave

it with a smile of amusement on his lips? The very words

“court of Jaw” inspire the layman with a sense of awe and even fear; the average Israeli is proud to state that his path has never led him there. “Happy is the man who

has no contact with the courts; whoso would preserve his

soul keeps at a distance from them” is an adage that expresses the sentiments of the majority. Yet there are few places where the humorous side of our national life may be seen as clearly as in our halls of justice. Everyday life is generally somber enough. The

problems that arise between man and fellow man, between husband and wife, or between father and son are

serious ones and do not often afford grounds for amuse139

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HUMOR

retold ment; but sometimes, when viewed in retrospect or

to in tranquility with all their minute details, they seem — shed their solemnity and are seen in a different focus is clearer, lighter, more vibrant and less solemn. Then it

that they yield a vein of lively humor—eflervescent, beguiling and entertaining.

There is another element that makes this type of humor

so effective. The courtroom is not an amusement park; and one does not come here to tell or to listen to jokes sed witticisms. There is nothing premeditated or rehear of about courtroom humor: it bursts forth like a flash

lightning, spontaneous and accidental, a product of the

conflicting stories told by opponents of verbal exchanges between lawyers and witnesses, and of an occasional wry comment made by the judge. It is revealed in a folkt saying that finds its way into the testimony of a litigan d or a witness, in a talmudic quotation or an unrehearse

y aside that somehow hits the nail on the head after length

Freand learned discussions have confused the issue. e gestur a by quently the onlooker is tempted to laughter of or a facial expression that accompanies the testimony s a witness or the argument of a lawyer. All these touche

ease the tension and solemnity that reign in the courtcal room, and add color to the drab monotony of the techni

different trial procedure. In short, this humor, in all its

manifestations, contributes to the preservation of a living contact between the executors of the legal process and the laymen who are at their mercy; it furthers the recogthe nition of the fact that courts, too, are but creations of their of t benefi the for human spirit, operated by men

fellow men. Not a day passes that the atmosphere of the

courtroom is not relieved by the healthy laughter of litithe gants, witnesses and spectators, often reinforced by True, clerks. and laughter of judges, attorneys, bailiffs

Sources of Humor

14]

the ripples of laughter are soon quelled by the judge’s

stern glance or the guard’s rebuke. Then all faces quickly

resume their serious expressions, and the solemnity of the law again permeates the atmosphere of the courtroom.

Courtroom humor derives its nourishment from the

most direct sources, from that vast canvas of life that depicts our contemporary situation in all its forms and

shades of coloring. I do not know whether this humor can be analyzed and catalogued scientifically. But from the

point of view of day-by-day experience it is possible to

delineate some of its characteristics on the basis of a

cursory classification. What are the sources of this humor? The lack of a legal attitude may be cited as a frequent cause of laughter in the courtroom. It, in turn, may be

caused by an imperfect understanding of the legal rights

to which all are equally entitled. Israel law (and prior

to the establishment of the State, the Mandatory consti-

tution) establishes certain basic rights for the protection of those who become involved with its judiciary system. But, although these rights and privileges are written and

enumerated in the statute books, the average citizen, uninitiated in the intricacies of law, is often unaware of

their very existence. Even when they are brought to his attention he does not always understand them; he cannot realize that they are intended for his benefit, and he does not know how to make use of them. For example: One of the basic laws of the Mandate was that any defendant in a criminal case had the right to stand trial before a British judge. Naturally, not everyone was aware of this “privilege,” and so the law specified that a Palestinian (that is, non-British) judge had

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HUMOR

to inform the aecused who were brought before him of this provision.

Most

prisoners

were

not

particularly

elated by the news. Indeed, their responses made it clear

that, not only did they fail to appreciate the reasoning

behind this law, but they could not grasp in what way it would be of real benefit to them or how it would make their situation any more pleasant. Their comments, some

naive and some barbed with the special brand of Jewish

acumen, often displayed a humorous attitude, based on

deep-rooted phrasings.

folk traditions and

expressed

in colorful

There was, for instance, the elderly woman who was

arraigned before me. I asked her, as the law prescribed, “Where do you want to stand trial—here, or before a British judge?”

Smiling good-humoredly, she answered, in Yiddish,

“T don’t know. What would you do?” Another woman,

when asked the same question, also

replied with a smile, but shaking her head—and J could

not tell whether she was honestly confused or consciously ironic—“I don’t know . . . wherever it’s cheaper.”

One man answered this question by asking a question in turn: “What? Have they got a different kind of law?”

Another elderly Jew nodded his head, shrugged his

shoulders, winked at me and finally answered, in a tone of complete indifference, “Bah, it doesn’t matter to me.

Let it be a British judge—he won’t hang me, either.”

A third placed his hand over his heart and said to me,

with a pleasant, fatherly smile. “Is this such a hard case

that you have to have a goyishe kop (Gentile head) for

it? I’ll take my chances on you.”

An Oriental Jew, when asked whether he preferred a Palestinian or a British judge, replied naively, “Isn’t

there a Sephardic judge?”

Sources of Humor

143

On the other hand, after two Jews had been elevated by the Mandatory power to the rank of “British” judges ,

a Jew who was asked this same question replied, “Yes, I

want a British judge—but make sure he’s an Ashkenazi! ” Once, however, when I informed a youthful offender of this privilege, he jumped up, stood erect, clicked his heels together smartly, saluted like a soldier and announced in a voice trembling with emotion, “For the

honor of my people I demand that I be tried by a Jewish judge!” Once a prisoner was brought before me, escorted by

two burly, armed policemen. He was an elderly man,

ruddy of complexion, with two shrewdly twinkling eyes

and a witty tongue. I explained his constitutional privilege of choosing a judge, but he shook his head to indicate that he did not understand Hebrew. I then repeated the

explanation in Yiddish, stressing the point that the de-

cision was up to him. “Where do you want to be tried? It depends entirely on what you want.” When he had at last understood, he winked one eye,

shrugged his shoulders and said, slowly and emphati-

cally, “What I want? What do you mean—what I want? They dragged me here! Do you think I wanted to come?”

He pointed at his two escorts, and at the revolver each had in his holster, This privilege of choice was unconditional, and the accused was never required to justify his decision. But some of the accused felt uncomfortable: how can one

say to a judge, “‘No, sir, I don’t want you; I want a dif-

ferent judge?” And so, in order not to hurt the judge’s

feelings, some would try to find excuses for their choice,

and these excuses were often highly amusing. One man

said to me, after much

hesitation,

“Your

Honor, I can see that you are a very busy man. I will take

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144

HUNOR

a British judge so that you won’t have to bother with me

in addition to all the work you already have.”

A woman who had obviously been born and reared

in one of the small Jewish shtetls of eastern Europe, but

had spent a short time in America before coming to Palestine, explained to me—in an English so broken the newest greenhorn in America would have been ashamed of it—that she ought to be tried by a British judge because he, the Englishman, would understand the language

of her native Jand: America. And she would find it so

much easier to explain her story in the language she knew best: English.

Another aspect of legal procedure is often the cause

of amusing misunderstandings. According to the law, anyone is entitled to testify, even one who is himself an interested party to the dispute. This is something the average layman finds difficult to understand, perhaps because the law was different in the country of his origin, or perhaps only because he thinks inwardly: “What is the point? Would anyone willingly testify against his own

interests? How can the law accept testimony that is obvi-

ously prejudiced?”

How does the man in the street express this thought? I once asked a plaintiff whether he wished to testify in

his own behalf; and he answered, “What good would that do me? Nu, and if I were to say ‘My name is Sh’lomo,” would you believe me?” In another case, the accused was greatly surprised to learn that his wife could testify for him and, reverting suddenly to his native Yiddish, he exclaimed, “You mean that a wife can be useful, too?”

Such is the popular Jewish attitude toward a law that validates testimony without regard to the nature of the witness or his relationship to the disputants.

Sources of Humor

145

The layman’s confused conception of his rights under

the law is but one of the channels by which fragments

of humor find their way into the courtroom. Another consequence of this imperfect understanding is the manner in which the citizen makes use of his rights, and this

again creates currents of humor and wit that enliven

judicial proceedings. Here are a few examples: In cases involving relatively minor infractions of the law, the presiding judge is permitted to excuse the accused from attending the trial in person, provided he submits a written admission of guilt. Most people do not know of this provision and appear in person to hear their sentence, even for the slightest offense. But even those few

who are aware of the existence of this rule generally do

not know how to go about using it. As I said before, the accused must admit his guilt in writing; this means that he must sit down, pen in hand, and compose a few sentences on paper. But this simple act already entails a number of problems that are not easily resolved. First of all, what should he write? Secondly, what is the proper form of addressing a judge? Can one write to him simply as man to man? And then again, should one, perhaps,

take this opportunity to plead for a lenient sentence? At any rate, plicity and reveal of the A woman oughfare by

these letters are often touching in their simnaiveté, as well as amusing in what they popular attitude toward the law. was charged with obstructing a public thorplacing a crate out in the street in front of

her fruit-and-vegetable store. In her letter she wrote:

I am very sorry that 1 will not be able to be present in court, but today is the busiest day in my store since tomorrow is a holiday, and I have no one to leave in charge. I admit that I placed a crate in front of my store, but it was only for a few

minutes and nothing happened. At the same time I wish to

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HUMOR

inform Your Honor that the state of affairs is very bad. I am a widow and have seven children to support, and I hope you will take into account the fact that this is my first offense, Very truly yours, Mrs. ........ P.S. My neighbor got a fine of only 250 mil last week, and he had put out two crates. Besides, he already had two previous offenses, I put out only one crate, and this is my first offense.

Now it was clearly up to the judge to figure out how much of a fine could justly be imposed on this “firsttimer.”

Another incident involved a driver who had received

a ticket for parking too close to the corner. When the court clerk called out the name

of the accused,

a boy,

about ten years old, was seen pushing his way through the crowd of traffic violators who were awaiting their turn.

When the lad reached the judge’s desk he handed him a crumpled note and a one-lira bill and said, all in one breath, “Daddy went to Gaza today to do some work for the army, and he couldn’t come here. He sent this note

and the money, and said that I should get the change.”

The note was in order and quite properly stated the father’s admission of guilt, but neither the written nor

the oral law provided any precedent for the boy’s demand for change.

Thus does the man in the street try to make use of cer-

tain regulations formulated for his benefit and protection. To tell the truth, this confusion of attitude is found

not only in regard to privileges and legal concepts are unfamiliar to the layman, but also in relation number of legal practices that would seem to be known. For example: Sometimes a person who has been

that to a well con-

ee

ee

victed of a crime and sentenced to serve a prison term is

Sources of Humor

147

permitted to enjoy the benefits of “special conditions.” This expression is often found in newspaper accounts of

trials, almost everyone reads and speaks about it; but

how many actually know its meaning? Some time ago a young man was brought to trial on a charge of theft. He admitted his guilt and unfolded before the court a frightening account of suffering and pain, physical as well as emotional. I do not wish to dwell

on his story in great detail, for these pages are dedicated

to the comic rather than the tragic aspects of the courtroom scene, but I will summarize the story in brief: The young man was a refugee from Eastern Europe who, lacking a skilled trade or profession, had not succeeded in establishing a firm foothold in his new homeland. After some months of aimless drifting, hunger and privation, he had at last found a job on a farm owned by

a woman, not far from Tel Aviv. The work was hard and tiring, especially for one who was not used to it. But the

owner of the farm, a widow some years his senior, took a liking to the boy and began to show him marked attention. At last, seeing no other way out, he gave in and married her. His work was now made easier; he began to take part in the management of the farm and came to look upon himself as a true landowner.

But his real purgatory was only beginning. His wife

had children by her first husband. Soon she bore him

children, too, and there was constant enmity and dissen-

sion in the family. Then, too, wherever he went he found himself the butt of embarrassing jokes. Often he was asked, sometimes innocently but more frequently maliciously, whether the woman was his mother. Now he regretted his marriage. He realized too late that he had actually sold himself for money. His discontent and unhappiness literally made him ill. He began to suffer

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COURTROOM

HUMOR

from strange ailments. The doctors, unable to diagnose his illness, gave him injections of narcotics to relieve

his pain,

and thus

began

the final chapter

of his

disintegration. After he had recovered from his illness he continued

to take drugs, both out of habit and so as to forget his

troubles. Soon it had gone so far that even three or four shots of morphine a day were not enough for him; his skin, like that of all addicts, had become a veritable sieve. The drugs were expensive: the druggist would not sell them without a doctor’s prescription, and the doctor would not sign the prescription without being paid. The young man began to spend every cent he had on drugs and was soon left without money. Yet his body craved more and more narcotics. What could he do? He stole

a doctor’s prescription pad and began to write out his own prescriptions. He used this pad for several months and was thus able to obtain his drugs cheaply. But finally he was arrested for the theft. The young man told his story in court simply and straightforwardly. Before me I saw a tortured soul that needed help, and I asked him, “How can you be saved?

What do you think should be done with you?” “Tf it were up to me,”

he answered,

“I would

give

for a minute;

and

myself a sentence of three months in jail, with ‘special conditions.’ ” The suggestion sounded strange, and I asked him just what he meant. He explained, ‘““These are the ‘special conditions’ I want: first of all, that my wife cannot visit me; secondly, that I be given hard physical labor every hour of the day; thirdly, that I be kept under constant surveillance

and

not be left alone

e

in

fourth, that my clothing as wel! as my cell be checked frequently to make sure that J have not hidden any drugs.

Sources of Humor

149

I know myself well. I will probably find some way of

getting around these precautions; if, despite everything, drugs should be found in my possession, a more severe

sentence should be imposed.” What the accused requested did indeed constitute “special conditions,” but certainly not the kind intended by the lawmakers. Up to now I have discussed the Jayman’s erroneous conception of his legal rights and the confused ways in

which he makes use of them. Now J turn to a third pipeline that brings a stream of humor into the courtroom, namely, the order of legal proceedings. It is not enough for a man to know that the law is on

his side. When he decides to bring his grievance into a court of law, he must also know how to present his claim

and how to word his arguments in accordance with estab-

lished procedures. This is not always a simple matter. In every generation courtroom and trial procedures are changed and revised. In the course of the years there has been a vast accumulation of rules and regulations regard-

ing the forms of subpoenas and summonses, the presen-

tation of claims and counterclaims, the submission of evi-

dence and corroboration, the testimony of witnesses and experts, and so on and so forth. It is a science that de-

mands study. Even those who deal with the law profes-

sionally are not always sure of exactly what they should do. Sometimes they also make mistakes. How then shall the layman, who has not studied the codes of law and their various revisions, find his way? There is a popular saying to the effect that “he who represents himself in court represents a fool.” Nevertheless, there are still a great many “fools” who act as

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their own lawyers—either because they never heard this

saying, or because they, like one famous judge, believe it was coined by lawyers only to discourage laymen. In any event, since they do not know what is essential and what should be omitted, these amateur attorneys confuse important and trivial arguments, pile accusation upon accusation, pour out all their pent-up bitterness before the judge, and at last present a brief that reads more like the traditional T’hinah (woman’s prayer book) than a

legal document. Thus one woman wrote in a complaint against the

neighbor with whom she shared a kitchen:

To the Honored Judge of the Court in...

On..... (the date) the accused publicly reviled me with insulting and slanderous names, such as pig, trash, riff-raff,

etc. She also took my mirror off the wall and threw it on the floor, where it shattered. And a while ago she and her husband forcibly removed my table from the kitchen and put it outside in the yard, where it was ruined by the rain. And she has spit at me in front of witnesses, and has also hit my small children. And when I am not at home she uses my oil and

takes kerosene out of my burner and causes other damage;

and in addition to all this she refused to pay her share of the electricity bill and when I tell her that I will not let her use the current at my expense any more, she threatens to beat me and to break my bones. Now I have had enough and I ask the court to bring her to trial and to punish her to the fullest extent of the law.

As she speaks, so she writes. Indeed, it is impossible

to get a clear picture of what goes on in that kitchen unless one reads the complaint all in one breath, as it was

written. Could the judge possibly fail to sympathize with this sorely tried woman and rush to her aid?

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151

Here is another complaint, written in bitterness by a man: “The accused frequently embarrasses and insults me

by calling me

such

names

as ‘old horse,’

‘Ashmedai,’

‘angel of death’ and others that are not fit to be written

on paper.” So far this would seem to be a normal libel and slander case.

But no!—the plaintiff continues: “She has also built a

shack against my wall without my permission, and she refuses to remove it despite my repeated requests.” Now

it seems that, in addition to the charge of slander, there

is also a charge of trespass.

But that is not yet all. He goes on: “Every night her

son has company and they sit on the porch, talk at the tops of their voices, sing songs and create a general dis-

turbance; and her daughter throws the garbage into the

back yard. When anyone mentions this to the accused she laughs and says that she is not afraid, even of a policeman or a judge, and if she were to get a fine it would not bother her because she has plenty of money.” The subject is growing more and more complicated, and still

the point of the complaint is not clear. Just what is the

man getting at? He proceeds: “The woman is known to be quarrelsome,

gets into arguments with every passer-by, and won't let her neighbors enjoy their rest . . .”

But what is the court asked to do? Now we come to the summary of the complaint: “I therefore request that the accused be called before the court and ordered to pay damages for the insults and also to remove the shack which is the source of all the quarrels between myself

and the accused .. .” It began with name-calling and ended with trespass,

but in between there was a wide range of complaints and

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insults, charges of misdemeanors and personal criticisms. Clearly the plaintiff was untrained in legal terminology; the complaint had obviously not been drawn up by a lawyer.

TWO

Entertaining Witnesses

Anyone who happens to be present in a courtroom dur-

ing the questioning of witnesses, especially in minor criminal] cases such as slander or assault or other incidents of petty conflicts between individuals, is sure to retain some amusing impressions with which he will regale his friends and acquaintances for a long time thereafter.

I have already mentioned the difficulty generally en-

countered by parties to a lawsuit, either civil or criminal, in trying to persuade witnesses to appear in court on their behalf. Even after these reluctant witnesses have been talked into coming forth voluntarily or have been forced to appear in answer to a subpoena, and are already

in the witness stand, it is often difficult to get them to speak. It is not because they want to conceal the truth that they stubbornly refuse to open their lips or hesitate in their answers, but simply because, by and large, they

do not trust their questioners. They suspect that they are being led onto slippery ground and feel that they must

be careful and on their guard. How does a suspicious witness try to exercise caution? By carefully considering and reconsidering the wording of the question, turning it

over and over in his mind, hesitating for a long time 153

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before speaking, and, finally, by giving an irrelevant or equivocating answer, often in a tone of voice that leaves doubt as to whether he is answering a question or asking

one. Once an elderly man was called upon io testify in a criminal suit involving a threat of physical violence. As soon as he appeared in the witness stand it was obvious

that he was annoyed by the whole affair and liked neither the lawyer nor the litigants who had disturbed his peace

and forced him to appear as a witness. Above all, he was suspicious.

After giving his testimony in favor of the plaintiff, he

was cross-examined by the lawyer for the defendant. Here

are the questions and answers that ensued:

The lawyer: The witness Yehoshua ben The lawyer:

“Is your name Yehoshua ben Levi?” (hesitantly): “Nu, and if my name is Levi, what of it?” “Do you know Reuben ben Yaacov, the

defendant in this case?” The witness (shaking his head doubtfully) : “And what if I do know him?”

The lawyer: “Isn’t it true that you have done business with him?”

The witness (surprised): “And what if I have done business with him? Is there a law against it?”

The lawyer (with suppressed anger): “When was the last time that you were in his house?” The witness: “Had I known that I would have to give you a report about it, I would have written down the

date and the time.” The lawyer: “You stated to my distinguished colleague, the attorney for the plaintiff, that this quarrel

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155

took place three months ago. What is the current month?”

The witness (suspiciously): “Look in a calendar and you'll see.” The lawyer appealed to the judge, who warned the witness that he must answer the question. The witness now stated, reluctantly and with great hesitation, the

name of the month.

The lawyer: “And what was the name of the month three months ago?” The witness (impatiently): “Did I come here to be tested on my knowledge of the calendar?” The lawyer: “‘All right, then, but exactly what took

place on that day three months ago?” The witness: “I’ve already told the whole story once.

Do I have to repeat it a thousand times?” The lawyer: “Not a thousand times, but once more.” Silence.

The lawyer: “Well, what is your answer?”

The witness: “Well, what.is your question?”

The lawyer repeated the question, his voice quivering

with tension and anger.

The witness: “The defendant threatened the plaintiff

and said that he would kill him.” The lawyer, leafing through the papers in his brief case, asked the next question either sarcastically or ab-

sentmindedly: “Well, did he carry out his threat?”

The witness (turning to the judge with a protest): “Do I have to answer that ridiculous question?” The judge assured him that no useful purpose would be served by answering what was clearly a rhetorical

question, and the witness turned back to the lawyer with an undisguised expression of triumph, his eyes gleaming with disdain and mockery.

\ }

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The multitude of questions that a witness is required

to answer, and the entire order of procedure during the

interrogation appear even more incomprehensible to the uninitiated when he is being questioned by an attorney whom, in private life, he knows well. Then, when the lawyer asks questions to which he obviously knows the answers, the witness is completely perplexed and amazed. Why should an intelligent man like his friend the lawyer pretend ignorance and ask questions that have neither rhyme nor reason?

The story is told about an elderly Sephardic Jew who

was being cross-examined in a Jerusalem court by a lawyer, also a Sephardi and otherwise a close personal friend of the witness. The latter spoke Ladino; the lawyer, Hebrew; a translator interpreted. The examination

was conducted solemnly and seriously, and began thus: The lawyer: “What is your name?”

The witness (astonished): “Adio, Nissim, don’t you

recognize me?”

The lawyer (via the interpreter): “You are supposed

to answer, not to ask the questions. Again, what is your name?” The witness hesitated, then, with much hemming and hawing, gave his name.

The lawyer: “What is your address?”

The witness (standing erect and speaking slowly and distinctly) : “Adio, Nissim, what in the world is the mat-

ter with you? Did you suddenly forget where I live?

Didn’t you yourself drive me here this morning from my house?” The lawyer (without looking at the witness, and still maintaining the pretense of not understanding Ladino) :

Entertaining Witnesses

157

“J do not know anything. Just answer my question. Where

do you live?” The interpreter translated. The witness shrugged his shoulders, mumbled

something to himself of which the

only audible word was bueno; then, like someone submitting at last to the inevitable, turned to the interpreter and explained: “I and he, the lawyer, we live on the same street, in the same house, he on top and I on the ground floor. He is just pretending he forgot, but he really knows it perfectly well.”

The lawyer (continuing as though he had not heard): “How old are you?” Now the old man’s patience was exhausted. He turned

protestingly toward the judge and, gesticulating excitedly

with his entire body, explained that only a few days earlier the lawyer himself had congratulated him upon his seventieth birthday and today he pretended to know

neither his name, nor his address, nor his age. This honest witness, and hundreds like him, could not comprehend the fact that the lawyer was asking these questions, not to obtain information, but in order to con-

form to the requirements of legal procedure.

Often the witness’ suspicious atitude toward the crossexaminer stems from the atmosphere of distrust with

which the attorney surrounds the questions he asks. Fre-

quently the examination of a witness is turned into an

interminable battle of offensive and defensive tactics, a

battle in which the two opponents employ verbal arrows, epithets that cut like keen swords, a deadly barrage of words and gestures intended to intimidate and to frighten. And the lawyer is not always the winner.

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I still remember one man who testified on behalf of the plaintiff in a civil lawsuit. After he had had his say,

he was cross-examined at great length by the counsel for the defense. The witness, no longer young but clearly a man of culture and learning, spoke with composure and dignity and interspersed his answers with apt biblical

and talmudic

allusions. The longer the witness

spoke,

the more favorable was the impression he created. When

the lawyer at last realized that he was defeating his own purpose, he blurted out in anger, “You are lying!” and

sat down. The witness showed no sign of surprise. He simply held himself a little more erect, looked straight at the lawyer and said, his voice ringing out slowly and clearly

as if he were counting coins, “You have tried to find a

hundred and one excuses for whitewashing your own dirty affairs, but now you are trying to smear me without any excuse at all. Where is your sense of justice?”

With these few words the witness had found the perfect answer to all the abuse that had been heaped upon him in public. I have already made reference to the fact that plain-

tiffs and defendants do not always employ lawyers to

argue in their behalf. Often, especially in civil suits involving petty amounts of money, or in minor criminal cases, the laymen speak for themselves. Since the art of interrogation is foreign to them, they grope in darkness and the questioning of a witness becomes a dialogue that, while disregarding all the rules of formal and customary

procedure, serves to establish the background of the dis-

pute. Here is a typical example:

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159

A tenant sued her landlord for slander. Both appeared

without lawyers. Their arguments and counterarguments

ignored al] the accepted rules and regulations. At last the time came for hearing the testimony of witnesses. The plaintiff stood up to testify in her own behalf and swore to tell the truth. Thus the curtain rose on the first act of

the comedy.

The witness: “He called me ‘crazy’ in front of my hus-

band and the neighbors.”

The accused: “Yes, but didn’t you first push a broom

in my face?”

The witness: “True, but why did I do that? Wasn’t it

because you burst into my apartment and threatened to

smash all the flower pots on my porch?”

The accused: “And why did I want to smash your

flower pots? Wasn’t it only because the water you poured on them dripped down and ruined the bedding my wife

had put out for an airing?” The witness: “Maybe the water did drip down from my porch on your bedding, but why wouldn’t you let me keep the flower pots in the yard?” The accused: “Flower pots, flower pots! Flower pots by day and flower pots by night! I’m fed up with your flower pots. When you used to keep them in the yard

they blocked the entrance, and at night they were a dan-

ger to life and limb. One could break one’s neck tripping over them.” The witness: “Well, that’s why I kept them on the porch. So what are you complaining about now?” The accused: “Who’s complaining? Did I complain? You dragged me into court!” The witness: “But you insulted me and called me ‘erazy’ in front of my husband and the neighbors. . . .”

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And so it goes on and on, until one or the other breaks off the argument with the comment, “It’s no use talking

to you,” or “I’ve heard that same story a hundred times already—there’s nothing more to say.”

Astonishment at the rules of legal procedure and ig-

norance of courtroom conduct are especially prevalent

among the women of the older generation. Once, for example, an elderly woman was called upon to ascend to

the witness stand, place her hand upon the Bible and

swear that she would tell the truth. In order to convince the court that she really intended to speak only the truth, she placed both hands upon the Holy Scriptures and announced, in a loud voice and with barely suppressed enthusiasm, “I swear to tell everything I know.”

The lawyer who had called her to testify smiled gently

and said, “I am certain, madam, that a woman of your

age knows a great deal, but for the moment we will restrict ourselves to the argument between the two parties and forget everything else.”

Another old woman, as soon as she heard that she had to swear to tell the truth, said quickly and all in one breath, “I swear that I saw that she hit him and he hit her, and then a policeman came and took both of them

to the police station, and more than that I don’t know and don’t ask me any more questions.”

When she had finished she turned back to the audience

and heaved a deep sigh of relief, as if to say, “Thank

God, I have done my duty. A heavy stone has been lifted from my breast.”

A third woman began to speak even before she reached the witness stand:

“This is how it all happened. I was standing at the

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161

door of my house and they were in the yard. Suddenly I

heard a shout and I saw...” The clerk interrupted the flow of words because he had not yet had a chance to enter her name in the records or to swear her in properly. But she was in a hurry to tell her story, a story which she obviously knew by heart. She had repeated it over and over to herself before coming

to court,

forget it.

and

now

she

was

afraid

she

might

THREE

Types of Testimony There are two types of witnesses: the inexperienced and naive, and the sophisticated who are familiar with court procedure. There are no rules by which one can deter-

mine to which category a given witness belongs; this can

only be deduced by observing his behavior, and the way in which he reacts to events and occurrences. Two individuals can see the same incident, at exactly the same time and place. Yet when they are called upon to describe

what they saw, their stories are entirely different. Wit-

nesses differ in degree of keenness of observation as well as in their ability to put what they have experienced into

words. The one imagines that it is his duty to tell literally everything that he heard or saw, the trivial together with the essential, and his tale becomes so long and detailed

that it is impossible to penetrate to the heart of the matter. The other, however, quickly grasps what is demanded of him and in a few concise sentences paints a faithful

picture of what took place.

Everything depends, of course, upon the individual’s cultural level, experience and understanding of life, his skill in interpreting impressions and expressing ideas, and his ability to understand all the implications of a 162

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163

question and to answer it simply and completely, but

without distortion. In short: the witness’ ability to demonstrate clear thinking and coherent expression is of vital

importance. But the naive as well as the sophisticated witness may at times be a source of amusement and entertainment to those attending a trial. The witness—any witness—reveals himself by the way

he stands, by the way he speaks, and by his general alertness or lack of it. The witness who is appearing in court for the first time is almost always to be pitied. He feels like a lost child. He does not know how to stand, what

to do with his hands, where to look. His eyes are fright-

ened, his face flushed, his voice hoarse, his answers fragmentary. He creates a poor impression only because of his stage fright. But his outstanding characteristic is the utter naiveté with which he speaks.

Every people has its own peculiar brand of naiveté. English folklore describes a typical Briton in this anecdote:

In a case involving a railroad accident a witness was asked to tell in his own words exactly what had hap-

pened. This was his story: “My friend Hall and I were

walking along the tracks. I heard a steam whistle and

got off the tracks. After the train had passed I went back

and continued to walk along the tracks. I didn’t see Hall anywhere. A few minutes later I saw Hall’s hat. I continued walking and suddenly I saw one of his legs; then I saw one of his hands and the other leg. And then, right next to the track, I saw Hall’s head. Then I said to myself, ‘Good God, something’s happened to Hall!’ ” Such extreme simplicity, natural or assumed, may also be found in the stories told by Jewish women when they are called on to testify. For example: Once two entire families—fathers and children, hus-

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bands and wives—were summoned to appear in court to answer to charges of mutual assault and physical violence. This is how the cause and development of the freefor-all were described by one of the female witnesses: One Thursday I was returning from my shopping and passed by the accused’s shop. She came out of the store and told me she would kill my son because he had hit her daughter. And then she pushed me and I went home and cried. My husband asked why I was crying and I told him the story. And then he went over to the store. He walked quickly——maybe he was even running—and I was a little in back of him, holding

the child by the hand. The accused’s husband was also in the store, and my husband started to talk to him. My husband told him that you can be put in jail for hitting other people. Then her husband said that he wasn’t afraid of going to prison, and he hit my husband. My husband almost fell—he raised his arm just to protect himself, and I can’t understand how her husband’s glasses were suddenly broken. Then she began to scream, and her older son came running out of the next room, looking just like a murderer, and he slugged my husband so that he was bleeding. Then I began to yell and my boy began to cry and scream. It was like the wailing on Tisha b’Av. Then a lot of other people came in, and I recognized my brother in the crowd. I don’t know how he happened to come along just then, but he appeared Jike an angel from Heaven. It’s true that he is a soccer player and that he once spent a week in jail for assault, but he was innocent then and he’s innocent now. He only tried to push them away so they wouldn’t kill my husband, and I never saw a knife in his hand at any time. How should I know how the blood got on her husband’s clothes? I only know that all of a sudden some policemen came and took my brother and the accused to the police station, and they took my husband and her husband to the first aid station of the Red Magen David... .

Could the scene have been described more vividly? And here is how one young Yemenite, in complete sin-

cerity, described the events of a quarrel that took place

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165

within a synagogue, The charge was criminal] assault; the principals involved, plaintiffs as well as defendants, were the elders and the young men of a Yemenite congregation. The witness told his story as follows: It all happened on Simhat Torah. We were praying in our synagogue. It is our custom that after the Reading of the Law, wine for Kiddush is distributed to everyone. The cantor requested everyone to remain seated until after he had recited the Kiddush, and I was supposed to serve the wine. I filled the glasses one by one. Then one young fellow asked me to pour him another glass. “O well,” I thought to myself, “it’s Simhat Torah today—let him drink as much as his heart desires.” I poured him another glass, and then another. But how many times was I supposed to serve him? Finally J refused to give him any more, and Pinchas agreed with me. Then Yaakov sud-

denly began to hit Pinchas, for no reason whatever, and the

gabbai began to hit Yaakov, and then everybody was hitting everybody else unti] the whole congregation was in the fight.

Now the witness was asked to point out the participants in the battle royal, and to describe the extent of their

participation. He began to rattle off the names in rapid succession, like the names of the “Ten Sons of Haman”

in the Megillah on Purim: “Yaakov hit; Sabri didn’t hit; Moshe hit; David hit; Issachar was beaten; Yosef I didn’t see; Yafeth hit and was hit; Chaim was hit and hit back; Sharabi was hit; I was hit and ran away; Yehuda was

hit and ran away; Zechariah jumped up on a

table and

threw a bottle at Shalom; etc., etc.” All this in one breath,

his eyes darting from one to the next, while his finger wandered through the air and pointed at the different members of the Yemenite assembly in the prisoners’ dock. Often a witness, especially when he is personally involved in the dispute, does not wait to be questioned but

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hastens to tell all that he can remember. Should the lawyer try to interrupt this flood of words with the comment,

“This is irrelevant to the subject,” the witness retorts, “Why is it irrelevant? This is the most important part! And anyway, how would you know what is relevant and what isn’t? You weren’t there. No, let the judge hear the

whole story and then he’ll see what kind of people are walking around free who should be in jail!’ And he con-

tinues as if his soul’s salvation depended on every word.

Although, from the legal standpoint, testimony of this kind is not very valuable, it is a real treasure for the student of human psychology, since it provides a keen insight into one man’s reaction to the world around him. The tale itself is a compound of essential and trivial details, interspersed with laments for the woes of the common man, the difficulties a newcomer faces in the land of his fathers, the pressures created by the housing shortage,

the problems of earning a livelihood, or the precarious position of Israel among the nations of the world. And the language? It is a confusion of languages, including

Yiddish, Ladino, Arabic, as well as jargons and dialects of other tongues, embroidered, every once in a while, with a phrase from the Holy Scriptures or a quotation

from the prayer book that does not fit into the context.

Quotations and metaphors and confused translations—an

Israel version of Sholom Aleichem’s “Tevya.”

In complete contrast to the naive witness is the witness

of the second category—the sophisticate. As soon as he

ascends into the witness box one realizes that he is a veteran. He stands firm and erect; his whole bearing speaks of calm self-confidence. He looks straight ahead and speaks only when asked a question. His answers are

Types of Testimony

167

brief, clear and comprehensive. When this sort of witness is cross-examined by a young, inexperienced lawyer, it

is the lawyer rather than the witness who arouses our pity.

Indeed, after a few minutes it may be difficult to tell who is questioning whom; the witness seems to be the cross-examiner, while the lawyer is hard put to defend

himself. And no one can tell just when or how the roles

were reversed. An attorney was once cross-examining a witness of

this type and, hoping to demonstrate that the witness’

memory was unreliable, he questioned him at great length, repeating the same questions over and over again.

At last the witness wearied of the game and, turning to

the lawyer, said, “Here you have already forgotten that

you asked me this same question barely five minutes ago—and not just once, but several times—and yet you

expect me to remember exactly what happened more than three months ago!” And then there was the lawyer who subjected a witness to an endless cross-examination and asked, perhaps for

the tenth time, “‘Are you absolutely certain that the de-

fendant is the man who stole your car?” To this the witness replied, not without a shade of irony, “I was quite certain of it until you began to crossexamine me—now I’m not even sure that I ever owned a car.” One of the favorite tactics employed by the “expert” witness is to demonstrate that the assumption upon which the questions or charges against him are based is patently untenable. Here are several examples of this: One of Tel Aviv’s celebrities was a well-known athlete—a man with a body of iron and muscles of steel, who bent metal with his bare hands and crushed coins between his fingers. He was, in short, a Samson. This

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man was once indicted for assault and battery. After the

plaintiff and his witnesses had testified, the accused asked to be allowed to speak in his own defense. He arose from

his seat and walked toward the witness stand with slow, measured steps, and immediately drew every eye upon

himself. He stood with his feet planted wide apart, grasped the railing of the witness stand with both his

hands, leaned on it with his full weight and stared straight ahead, as though ready to pounce upon his victim. Then, speaking slowly and distinctly, he addressed the court:

“The plaintiff claims that I hit him. That is not true. I have in my possession a certificate signed by thirty-six doctors to the effect that anyone whom I hit with any degree of force would immediately be reduced to a heap of broken bones. With the permission of the court I am ready to demonstrate the truth of this statement upon the

plaintiff. Can you believe this man, who has the strength

to stand on his own feet and to babble, when he claims

that I assaulted him and beat him up?”

A discharged veteran, one of our Yemenite brothers,

was once haled before a court on a charge of assault. He freely boasted that in the army he had been known as the best wrestler of his battalion, and had been invited to compete in wrestling matches throughout Europe and in England. “Wherever I went,” he proudly declared, ‘I fought for the honor of my people and glorified the name of Israel among the nations. I have converted anti-Semites into Zionists; Gentiles sat and marveled at the strength of an Israelite. But who dares to say that I would attack a Jewish boy? That is sacrilege!”

His logic was iron-clad and obviously beyond dispute.

FOUR

The Language Problem

Our tiny country is blessed with a multitude of peoples

and a babel of tongues. During the Mandate period the law recognized three official languages: Hebrew, Arabic and English, and every citizen was entitled to plead his cause in all government offices in any one of these three. In practice, there was always some fourth language which, although it never received official recognition, was used by a considerable segment of the people both among themselves and in contact with the representatives of government. This fourth language has never been clearly defined or fixed; it has fluctuated and changed with the different waves of immigration. Thus, for example, Russian became one of our unofficially accepted languages in the years immediately following World War I, when Russian Jews constituted the largest group of immigrants. During the middle ’twenties, Polish was heard more frequently,

not only on the streets and at popular gatherings, but also in governmental offices, at municipal council meetings and other civic gatherings, official as well as informal. Whenever a new wave of immigrants was being absorbed, a new language was heard. Roumanian, Hungarian, Greek, American English, and every other tongue 169

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spoken by our people in the Diaspora has had its turn. After the rise of Hitler, German was for a long time the recognized fourth major language.

This was the official—or semi-official—situation. Ac-

tually there is almost no language unrepresented in some

corner of contemporary Israel life. This mixture of the languages of Orient and Occident, this complex of dialects and tongues, has also resulted in a special chapter

in our legal folklore. Since, in the courtroom, only the

three major languages are granted recognition, it often becomes necessary to translate into one of these not only documents and legal arguments, but also thoughts and ideas, wishes and desires, so that litigants and judges,

witnesses and lawyers may understand each other. But the task of bridging cultural chasms is not an easy one.

Here, perhaps more clearly than anywhere else, we are forced to recognize the absolute necessity of exchanging

the habits of the Diaspora for the dress of our common

homeland, of becoming truly one people, speaking one tongue.

The following is an example of the effect of generations of exile:

A woman stood before the court, charged with selling fruits and vegetables without a license. The accusation

was read in Hebrew. In answer to it she mumbled something in a monotonous sing-song. Evidently she had not

understood a word. This woman had come from distant

Bukharia only nine months before. During this time she

had acquired a few basic Hebrew words, such as: carrots, tomatoes, melons, grapes, and the names of other seasonal

fruits and vegetables. She had also learned the words

for certain weights and knew how to recognize most coins; but more complex concepts, such as law and justice, guilt and innocence, paragraphs and sub-para-

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171

graphs, she had not yet mastered. So she continued to mumble in her ancient tongue, accompanying her words

with gesticulations and grimaces, A translator was needed,

but even a court in Israel

is not always equipped with an interpreter for all the world’s languages. Suddenly a young woman in the audience rose to volunteer her services. She too, we discov-

ered, was a new immigrant—from Turkey. Indeed, she was the daughter-in-law of the accused, whom she had accompanied to court in order to help her. In her home

in Turkey this young woman had spoken Ladino, and in the home of her husband and his mother she had picked

up a smattering of Bukharian. The situation was now somewhat easier. The remote Bukharian language could now be translated into the more familiar Ladino. The problem was not yet entirely solved: Who would com-

plete the chain? But the people of Israel is never entirely lost. Among

the spectators there happened to be a young man who had recently come from Syria. He himself spoke Arabic, but

he had worked among Sephardic Jews and had married a Sephardic girl. Thus he had learned a little Ladino,

though as yet he spoke no Hebrew. Another link in the chain. True, the last link was still missing, but the prob-

lem was now much simpler: we had reached the boundary

line of the official languages, and there was sure to be

someone among the courtroom personnel least two of these. All these diverse “children of Israel” perform the sacred task of administering Land of the Patriarchs. The charge was Hebrew, then translated into Arabic,

who spoke at

now united to justice in the read first in

from Arabic

into

Ladino and finally into Bukharian. The accused made her replies in Bukharian; these were translated into Ladino,

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then into Arabic and finally back to Hebrew. By this tortuous method the judge learned that the accused denied the charge. He thereupon asked the prosecutor to present his evidence, and the process was repeated: the testimony of every witness was translated into each of the four languages; then, for the benefit of the accused, the prose-

cutor and the judge, the testimony of the accused herself as well as the verdict were repeated in all four languages.

Should it ever happen that the parties to a dispute are,

respectively, a Jew from Caucasia on the one hand, and

a German Jew on the other, a verbal bridge might have to be constructed that would link Central Asia to Central

Europe by way of the Slavic and Balkan languages to Turkish, Persian and the diverse Arabic dialects.

FIVE

Tenants and Landlords

In the courtroom one can always feel the pulse beat of

the community, the tumult and excitement of everyday life. At times the work of the court is concentrated upon

questions of legal detail that seem dull and colorless to

the onlooker; at other times the court listens to arguments and counterarguments embroidered with fine and subtle casuistry, with hair-splitting assumptions and deductions; at still other times it turns to deal with the darkest

side of life, with crimes of greed and violence, with the

foul deeds of the lawless and the vicious, with moral outcasts. But at all times it retains its living, human contact

with the world, and discovers, even in the lowest depths,

the image of the human being.

Life is complex. The struggle for survival makes man’s burden a heavy one. But fragments of humor are caught

sometimes even in the thicket of tragedy, and sparks of

light are strewn over the harsh countenance of reality.

It is the smile and the good-natured laugh that preserve the thread of humanity in the dry routine of the law, and

that ease somewhat the tension which necessarily develops between judge and judged, between plaintiff and accused, between defendant and prosecutor. This humor 173

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is genuine, growing out of the comic confusion we call life; when it makes its appearance, men can for a few

moments forget the harsh business of living. This aspect of humor is perhaps best demonstrated by one of our most common contemporary situations.

Should you ask: “What kind of cases came before the

court today (any day), and what sort of problems were discussed there?” even a child could answer, without ever having heen in court: “If a tenant fails to pay his rent on time, shall he be evicted?” Or: “If a landlord refuses to provide hot water even once a week, shall the

court issue an order forcing him to comply with his com-

mitments?” The phenomenon of “lawsuits regarding leases and evictions” has not yet reached its final phase; it is constantly being expanded before our very eyes; not a day passes without some new incidents and further developments. When in the future the full story is told, it will be a biting and penetrating commentary on these critical days in our history. But for the present I shall confine myself to a few random examples:

A young man and a girl had been “going steady” for

some time. At last they both realized that they were meant for each other. There was nothing to hinder immediate preparations for a wedding, except the lack of a place to live. For surely it would not be right that after the wedding she continue to stay with her parents and he in

his bachelors’ boarding house. So the two set about the difficult task of finding a home. They spent all their free

time searching, not for entertainment or diversion, as is

the custom of young people, but for a place to live. Like

tourists who seek out the spots of interest mentioned in

their maps and guidebooks, these two embarked upon a

daily inspection tour after work, following a list of ad-

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dresses of rooms and attics that had been given them by friends and acquaintances. For hours they dragged

their weary feet through streets and alleys, back yards and basements. All to no avail. It seemed that there

simply was no place for this young couple, who asked no more than to be able to establish a modest home in the land of their forefathers. Then one day the young man came running to his girl

friend. Someone had told him of a friend who lived in the suburbs who had been told by a neighbor that he had seen, in a village not too far from the city, a little

beyond the new cemetery, a sign posted on the door of a house that read: “Rooms for Rent.” The couple immedi-

ately raced to the village to behold this miracle with their own eyes, trembling lest they come too late. As is well known, the “good old days,” when such signs appeared on every door and in every store window and even on the trees in the parks, are gone forever. Today a “For Rent” sign is a rare phenomenon. But our young couple’s efforts were successful: they sought and they found. The

accommodations,

it is true, were

far

from spacious, consisting only of one room and a kitchen

to be shared with the landlady; and for this they were asked to pay “key-money”

amounting

to seventy-five

pounds. But love’s flame burned bright and they dared

not hesitate, lest this “bargain,” too, disappear before their eyes. The young man borrowed money and signed the lease, and shortly afterwards the two were married

“in accordance with the law of Moses and Israel.” They entered their quiet nest and their happiness knew no bounds. Several months passed. Their passionate love began to abate. The novelty of married life wore off, and the devil

began his work. At first there were only small disagree-

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ments, slight misunderstandings, petty quarrels, stubborn insistence upon having one’s own way, and unwillingness to forgive and forget. After a while these small arguments developed into open warfare. Every night screaming and shouting and the clatter of dishes being thrown was heard from their room. One night the police were

called. The neighbors complained that the two were disturbing the peace, that they often screamed at each other

until long after midnight. The policemen, as is their custom, listened and took notes, and promised that the offenders would be summoned to court. By now everyone agreed that the marriage had not turned out well, and man and wife turned to the rabbinical courts for a divorce. All formalities were taken care of with mutual agreement and consent; the husband delivered the get (bill of divorcement) and freed the wife of the bonds of matrimony. Everything was finished—everything, that is, except one detail: who should remain in possession of the apartment? In their hurry and excitement they had forgotten to settle this. And it was not an easy matter. In these difficult days an apartment, even a room, meant at least a roof over one’s head, a resting place for the weary body, a shelter against the storm. But these two had given

no thought to the problem, and no settlement had been

made. On the evening of the day of the divorce the woman returned to her room, ate her supper and went to bed. The man, too, returned home

after work, a few hours

later. He found his ex-wife fast asleep in bed. Quietly

he made up his own bed on the couch. That night the

angel of peace spread his pale wings over the tiny room. The same thing happened the next night, and again the

next. Every night ex-husband and ex-wife retuned, at

different hours, to their apartment and slept peacefully

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in their separate beds. Now at last they were able to live together, like two gentle doves, in peace and harmony. They never spoke to each other, never quarreled, never

hurled accusations at each other. The neighbors, too, were undisturbed. But friends and relatives began to interfere. “It simply is not right for a divorced couple to continue to live to-

gether under one roof,” they maintained. Propriety de-

manded that one of them leave. But which one? He said, “Let her go! I paid the ‘key money’ and the

rent, and I am still paying off the debts.”

She argued, “He has to leave. I bought all the furniture with my own money; I put up the curtains and made the place livable; I cleaned up the kitchen and arranged it so it can be used, and I intend to go on using

it!” Thus two laid claim to one room, and each said: “Tt is all mine.” The story ended as such stories must. He instituted eviction proceedings against her, and she brought a countercharge against him. The court was faced with a dilemma. If a husband and wife who have been divorced continue to live in the same house, and each refuses to

leave, who is in the right? Who has to make way for

whom? Witnesses were velopment of the woman, from its Then the opinions

called who described in detail the derelationship between the man and the romantic beginning to its bitter end. of experts on religious law were heard.

One rabbi, speaking on behalf of the woman, declared

that since Jewish law forbids the man to remain in one dwelling with his former wife, simple logic dictates that he shall move out and leave the house to her. But the rabbi who had been summoned by the husband testified

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that, on the contrary, according to the laws of Israel it is the husband who retains ownership of the home and

all its furnishings both before and after a divorce, and that therefore it is the woman who must make way. And so there was a new problem: which of these interpreta-

tions should be adopted by the civil court? The actual decision is irrelevant to our story. It is my

purpose simply to demonstrate how a human tragedy may sometimes be revealed in the courtroom in its comic

aspects, and how the petty problems of everyday life influence the kind of law that is developed in our courts.

I offer another example:

A landlord and his tenant became involved in a law-

suit. The landlord, a tall man with a full, long beard, was

a Lithuanian and spoke Yiddish, a Yiddish enriched with many phrases of biblical Hebrew. The tenant, a slight, small Yemenite, spoke Hebrew with a strong admixture of Arabic. His sparse beard quivered as he spoke.

The owner of the house presented his arguments in a

plaintive voice:

Of all my possessions and after all my life’s toil all that remains to me in my old age is this small house, or hut, consisting of two rooms, that stands on the outskirts of the city between Tel Aviv and Jaffa. Nu, times are hard. Prices are

high. The small allowance that I receive from my children in America is not enough to support me and my wife; so I talked to her and explained that in times like these we don’t have to live in a palace. Where is it written that we must have two rooms? We can get along in one and rent out the other. Finally she agreed, and we put up a “To Let” sign. To whom did we rent the room? To this man. We thought: a little we get from the children over there, a little we'll get as rent here,

and we'll manage somehow. True, it will be a meager life, but praised be God from day to day. What I did not know was that

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I was bringing hell itself into my house. Hell? I cannot find words to describe our misery. We know no rest by day or by night, on the Sabbath or on the Holy Days. First of all, there is the matter of the rent. According to our agreement, he is supposed to pay at the beginning of every month. Nu, the first month he paid on time~he had to, or I wouldn’t have given him the key. But since then he has avoided me like the plague. At the beginning of the second month, when I asked him for the rent, he put me off till the next day. I thought to myself: “Maybe he really does not have the money today; Ill wait till tomorrow.” On the next day I reminded him again and he said, “Next week.” I thought it was a

little strange; after all,

the rent was not a fortune, just twenty-five liras a month, and even this he didn’t have? But I had no choice, and I waited. And so he put me off, with “tomorrow” and “next week,” and finally he paid half and the other half remained as a debt. In the meantime we had gotten into the third month and again he did not pay, neither the old debt nor the current rent. I asked him, I pleaded with him. And he kept repeating the same thing: “ll pay, P'll pay—I’m not running away.” About the middle of the month he paid me something on account, and then there were more delays and postponements. “Come again in the morning—come at night—come to my shop.” And I kept waiting. What could I do? My feet were worn out with running after him and my throat was parched from pleading with him. Now I can’t bear it any longer. Who can keep track of our confused accounts? Am I a bookkeeper? Once in a while he throws me a few pennies, as though he were giving me a donation, and says, “A deposit.” So now he owes me for half a month here, a third of a month there,

a fourth of a month and then three more months—and who can figure out how much he has actually paid and how much he still owes me? Where will it end? Secondly—woe to the rest and quiet I should be enjoying in my old age. I spent many happy days in this land, but now I have brought misfortune upon myself with my own hands. I used to say to him, courteously, like a man speaking to a friend, “Be so good, my dear man, not to empty your garbage can in the back yard. It ruins the few flowers that grow there.” Or: “It is not nice to pile your ashes and rubbish

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right in front of my window. After all, we have special refuse cans in the back; it is a matter of health, too.” Nu, nu, when

he heard this he raged like a mad dog and screamed at me, “You're not going to teach me manners! I'll do what I please and you'll keep quiet, old fool that you are. Nowadays the tenant is the boss—that’s what the law says!” And then he said, “If you don’t like the way I act—well, you're free to look for some place else to live.” Have you ever heard anything like it? I—the landlord—should move out, and he—the tenant—will take over my house? Has the whole world really gone mad? Is there no justice and no judge? I want no more of him. I have put up with him for one whole year. Are there no limits? Thank God, there are other houses in the city. Let him go. Let other landlords find out what kind of a “jewel” he is.

The old man finished his lament and was silent. For a few more seconds he continued to shrug his shoulders, while his lips moved silently as if he were still carrying on a debate with himself. Then he leaned on his cane,

bent his gray head and waited submissively for the verdict. Now the tenant, the Yemenite, began to speak, his sparse beard trembling with excitement, his finger ges-

ticulating through the air:

Lies, Your Honor the Judge, all lies! Everything the landlord has told you here is lies and falsehood from beginning to end—there is not a word of truth to it all! Rent? I pay and I pay. Promptly and on time. I don’t owe him a penny. Let him swear on a Torah that I owe him anything, and I'll pay a fine of a thousand pounds to the Jewish National Fund.

Yes—a thousand pounds! I swear it by my life. True, it does

happen sometimes that the rent is a day or two late; but what of it? Is the world coming to an end tomorrow? People don’t always pay me on time either, but do I drag them into court? No, I don’t start lawsuits. I wait. They will pay—I’m not afraid—they will pay! So why make a fuss?

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But the trouble he causes me—that he didn’t tell you about.

I swear, Your Honor, there isn’t another Jew like him in the

whole world, You simply can’t imagine what kind of a man he is. Receipts he doesn’t give. He wants me to rely on his word alone. Whenever I pay my rent and ask for a receipt, he points to his beard and says, “This is worth more than any receipt.” All day long he walks around like a policeman and gives me orders: “Don’t sit here!” “Don’t walk there!” I’m not allowed to put a nail into the walls; I’m not allowed to keep my charcoal on the porch; I’m not allowed to have a guest stay overnight. What is this—Sodom and Gomorrah? He’s always looking for fights and arguments. And he curses! My God, how he curses, in that language of his which I don’t understand and don’t want to understand! Even the Arabs in Yemen were better than he! In truth, they were better! If there were only some place else I’d move out immediately. I'd be glad to leave. But there is nowhere to go. What shall I do? Shall we sleep out in the streets, my children and I?

The Yemenite shook his head once more and held it sideways as though his neck had suddenly grown stiff, so that he looked like a crooked question mark. He let

his arms fall and dangle at his sides, sighed deeply and

then was silent. The trial was postponed for a few days and the parties were instructed to bring witnesses. On the appointed day

the old Lithuanian Jew and his Yemenite tenant appeared

once more before the bar of justice. I looked through the dossier and asked whether they had prepared their evidence in the case of the disputed house. At this the old man raised himself to his full height, spread out his hands

as though in supplication—the cane he held in one hand

was quivering—and began to speak with barely suppressed sobs: “What case? What house? There’s no need now for a trial, no need for witnesses. The government has settled

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our argument. The department of health said that my house was infested with rats and they could start a plague. So what did they do? Early one morning they sent workmen and tore the house down. Nothing remained, nothing. Wiped off the face of the earth as though it had

never been there. There’s no house now, and no need for

a trial.” He began to weep like a small child. As he was speaking, the Yemenite tenant nodded his head slowly as if, for the first time in his life, he agreed with everything the old man said, even if he did not understand a word of the Yiddish. He wiped the tears from his own eyes with his sleeves and, seeing that his former archenemy was trembling from head to foot,

stretched out his hand to prevent the old man from fall-

ing. Then the landlord and old comrades, the courtroom.

two, the old Litvak and the Yemenite, tenant, with their arms interlocked like turned toward the exit and together left ...

Landlord-tenant relations, the housing shortage and

its consequences—key-moneys and agents’ fees, all the

devious methods of evading and bypassing the law, the complaints of tenants and sub-tenants on the one hand, and the long list of harassments endured by landlords at the hands of unscrupulous tenants on the other—these are serious contemporary problems that demand a basic solu-

tion. But when these problems come to light in the court-

room, in the course of eviction proceedings or other complaints growing directly or indirectly out of rent prob-

lems, they often reveal a humorous aspect in spite of their fundamental! seriousness.

There was, for example, the case of an elderly man who was faced with eviction proceedings. This was during

183

Tenants and Landlords World War

II. The defendant knew

that his case was

weak, since he had violated almost every basic condition of his lease. But who, in such difficult days, was foolish enough to vacate an apartment without fighting to the last

minute? So the old man stood up in court and announced cheerfully, “Let all the kings of the East and the West

come and try to force me. I won’t move out!” He wouldn’t

move—that was all there was to it. And why? Because,

when he was still living in his native town in eastern

Europe during World War I, he had once moved from

one house to another, and while he was busy transferring his belongings, a bomb hit the new house and destroyed it and everything in it. He himself luckily had not been there at the moment and so had escaped with his life, but you can’t count on a miracle every time.

Under no circumstances would he agree to move during

wartime—and what Jew would be hard-hearted enough to endanger the life of an old man? Then there was a tenant who had not paid his rent for several months. The landlord sued for eviction. During the course of the hearing it became clear that the defendant’s finances were really in a very sorry shape, and that he had neither the money to pay his old debt nor enough to pay the current rent. The landlord himself felt

sorry for him and made the following offer:

“Since you honestly cannot pay your debt, and in your present circumstances this debt will only grow and grow and become an intolerable burden to you, and since I

cannot be expected to keep you indefinitely free of rent,

I suggest that you move out immediately, and I in turn will forget what you owe me up to now, including the court expenses, and I will even give you fifty pounds in cash when you turn over your key.”

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A most generous offer, one might think. But the tenant

did not agree. When he heard it, he jumped as though

bitten by a snake and shouted excitedly, “What?

Only

fifty pounds? Three beautiful rooms on Rothschild Boulevard, with all modern improvements, running hot water,

steam heat—a veritable palace—and you offer me fifty pounds at a time when people are paying fortunes for

apartments! No! A thousand times, no! I will not let myself be cheated!”

He had quite forgotten that he faced a lawsuit and

that, if he lost, not only would he have to move out without any compensation at all, but he would also be forced to pay his debt to the last penny.

Here it may be appropriate to take note for a moment

of a well-known phenomenon: the Jew’s habit of laughing

at his own troubles. This is not laughter for laughter’s sake. The bitterness that accumulates in his heart, both for the sufferings of his people and for his own private worries, gnaws at his vitals and threatens to explode if it cannot find some outlet. This release takes many different forms, but perhaps the most biting, the most penetrating, is satire. A Jew pours out his bitterest thoughts

in mockery and ridicule. He picks at his own wounds,

bites his own flesh with the fangs of irony, laughs at himself, lays bare his own helplessness and thereby purifies his heart of the bitterness that has nested there. He casts it, so to speak, into a universal mold that is no longer confined to a specific time or place. This tendency of laughing at oneself is sometimes found in courtroom humor too. There was a popular story told about a tenant who faced eviction because he had not paid his rent for several months. The judge asked why he should not be or-

Tenants and Landlords

185

dered to vacate his apartment if he could not pay the rent. The tenant answered, “I have three arguments on my side. First of all, when J first moved into this apartment

the landlord—as is the custom among decent Jews—gave

me his blessing and expressed the hope that the next time I moved it would, with God’s help, be into a house of my own. God has not yet granted this prayer; so, if the landlord does not want his blessing to have been given in vain, let him sign over one of his many houses to me, and I shall be glad to move out of this apartment immediately. Secondly, while it is true that I have not been paying my

rent, what guarantee does he have that the next tenant will be any better? And, thirdly, if the new tenant also

does not pay, then I, at least, am already an old acquaintance and can claim squatter’s rights.” Then there is the story of the landlord who asked his tenant to vacate a house because he, the landlord, needed

it for himself. When the tenant refused, the landlord sued. In court the plaintiff presented his argument: “With the sweat of my brow and my heart’s blood I built this small home for my family. Then, because of my job, I was forced to move temporarily to a different city,

and I rented the house to this tenant with the stipulation

that he would vacate it without argument as soon as I returned. Now my employer has transferred me back to this city, but the tenant refuses to move out and, while he lives

in three comfortable rooms, my family is left out in the street like homeless strays.” The judge was impressed with the argument and recommended a compromise solution: for the time being the tenant would sublet one of his three rooms to the owners, so that with respect to this one room their roles would be reversed: the tenant would become landlord and the landlord tenant. The other two rooms would remain the tenant’s.

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The owner of the house was pleased with this suggestion for settling the dispute and, in order to make it seem even more attractive to the tenant, he added, “‘He is now paying me four pounds a month for the three rooms; I am willing to pay four pounds for the one room until I

find another apartment, so that in the meantime he will

live in the two rooms free of charge.” The tenant hesitated before answering, and then said that he would have to talk this matter over with his wife.

The case was postponed for a day. The next day the two

litigants again met in the courtroom. When the tenant was asked by the judge whether he was ready to accept

the compromise, he declared that after consulting with his wife he had decided to reject the suggestion. “My wife says,” he added by way of explanation, “Don’t you know what tenants are like nowadays? Once they get in, they never move out again.’ ” This argument could not be refuted, for he himself was living proof of its truth.

Here is another example, perhaps apocryphal, but of

interest in that it reveals a widespread attitude: A tenant was charged with assault and battery: he was

accused of attacking his landlord and inflicting physical

injury. The defendant did not deny the charge, but argued that he had not committed a crime. The judge carefully

re-examined the accusation and then turned angrily to

the accused: “You admit that you beat up the landlord and threw him down a flight of stairs. Yet you stand there and say that you have not committed a crime? Did you think you

had legal permission for what you did?”

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Tenants and Landlords

187

At this the tenant pulled from his pocket a document

covered on both sides with fine print, and handed it to

the judge. “This,” he said, “‘is the lease I was forced to

sign. Its forty-nine paragraphs, which must have been drawn up in Sodom, contain a detailed list of everything

I am not permitted to do. I am not allowed to sublet or transfer my apartment or any part of it to someone else. I am not allowed to extend hospitality to guests—that is,

friends or relatives other than my wife and my chil-

dren—for more than twenty-four hours without the landlord’s permission. I am not allowed to keep a dog, a cat, a bird or any other pet. My wife cannot launder linens either in the bathroom or in the kitchen or in the basement, nor can we hang up linens to dry in the back yard. I and all the members of my family must do nothing that might be construed as a desecration of the Sabbath or a holiday. We may display no signs of any kind on our doors, on our windows or in the hallway. We may not keep a baby carriage or a trunk in the basement, nor can I keep my coal or other household equipment on the

porch. My rent is due on the first of every month, and

I am not allowed to be a day late in paying. I cannot use my apartment for any business or other purposes except as specified in the lease. I am not allowed to do this and I am not allowed to do that. It is all written down clearly;

there’s no room for doubt or misinterpretation. But it doesn’t say a word anywhere about throwing the land-

lord down a flight of stairs.”

The accused now ended his outburst ance: “You must agree, Your Honor, not expressly prohibited—that I may The logic may have been poor, but

unmistakable.

on a note of defithat whatever was do!” the sentiment was

SIX

Emergency Regulations

The numerous rules and regulations enacted during the war emergency brought a new face into the courtroom:

that of the normally law-abiding citizen.

The habitual criminal violates light and serious laws indiscriminately. The fact that he is not charged with

breaking every law on the statute books does not indicate that he intentionally obeys some of them; it means

simply that he “specializes” in certain crimes and is not

interested in others outside his particular field of opera-

tions. Should the opportunity arise, he would with complacency commit any crime, great or small. It is, however, the honest citizen who most frequently violates the special regulations enacted during an emergency period. There are many reasons for this. First,

these laws are enacted suddenly and in great number.

Hardly a day passes that a new one is not issued or an old one revised, so that often the layman does not realize that what was permissible yesterday is prohibited today and what was only frowned upon last week is definitely illegal now. Secondly, the average citizen feels that one small violation will hardly change the course of world affairs, and, after all, he intends to ignore the law only 188

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189

this one time, to return forever after to his normal, lawabiding ways. Then, too, each individual is convinced

that he had a compelling personal reason for what he did; once he explains this to the judge (should things actually

go so far that he has to stand trial), the judge will surely

take it into consideration. However, just because he is not used to evading the law and has had little experience in delinquency, the honest citizen is usually apprehended and brought to account for even the slightest infraction.

And when this novice-criminal stands trial, it is almost

impossible for the onlooker to suppress a smile of amuse-

ment at the manner in which he attempts to explain or excuse his offense. For example: During the years of World War II the Mandatory government decreed that no animal was to be killed except

in the municipal slaughterhouse, under the supervision of

a veterinarian. In addition, slaughter was permitted only on certain specified days of the week. A young Yemenite Jew was once accused of having slaughtered an animal illegally. He did not deny the offense, but offered a complicated explanation. It seems that, in obedience to the call of the nation’s leaders as well as the dictates of his own conscience, he had volunteered to serve in the army fighting against Hitler’s forces, and had been seriously wounded in the Battle of Tobruk. While he lay in the hospital hovering between life and death he had made a vow—as is the custom among the Yemenites—that if God granted him life and returned him to health he would, as a token of his gratitude, distribute fresh meat to the poor of his community.

The miracle came to pass, and he lived. Now he felt obli-

gated to redeem his pledge. To do this he purchased a tender calf and made preparations to carry out his prom-

ise. These were the “meatless” days, and the eyes of the

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HUMOR

police were everywhere. But he found a way out. His house, situated in the heart of the Yemenite quart er, had a small attic, probably intended as a laundry room. Somehow he managed to get the calf up the narrow staircase to this attic and there he slaughtered it, carefully observ-

ing the ritual law. Then he began to distribute the choic est cuts of the meat among the poor. The news spread like wildfire: meat was being given away free! Men and

women grabbed every available vessel—kettles and pots, platters and bowls—and ran to stand in line, patiently

awaiting their turn for this miraculous bounty. Then the

guardians of the law passed by, noticed the unusual crowd, began to investigate, and discovered the “crimi-

nal” in his attic.

“Tn truth, Your Honor,” so the poor man concluded

his tale, “I was doing this only for the sake of Heaven and not for my personal profit. Should I be punished

for it?”

And here is another example: A young man was accused of violating the blackout

regulations. He lived on the top floor of one of the houses

in the city (most of the trouble in those days used to originate on the top floor) and had carried out a brilliant idea: up on the roof, right above his apart ment, he had placed a comfortable beach chair and a readi ng lamp

with a shade made of heavy cardboard, and when the

summer nights were hot he would sit in this chair and read by the light of the lamp. At first the youn g man attempted to deny the accusation. When the details of his “arrangement” were explained to the court , however, he looked bewildered and said plaintively, “Yes, perhaps the light could have been seen from above, but how could the Civil Defense people see it from the stree t? That roof

is entirely surrounded by a solid stone wall!”

Emergency Regulations

19]

As far as he was concerned, the blackout regulations

were not meant to prevent light from being seen by enemy planes overhead, but rather by the Civil Defense patrol below. And now that I have mentioned the Civil Defense patrol, I recall the devotion and loyalty with which its volunteer members performed their task. They stood on guard, ready to protect the city’s security, not only during

blackouts, and not necessarily in the streets to which they

were assigned, but at all times and in all places. I remember particularly well an incident that occurred while I was hearing the charges against a young man accused of receiving stolen property. The young man denied having committed the crime and a number of witnesses were called. Suddenly the air raid sirens were heard.

At the time all of us had been deeply impressed by the

courage of the British people, who continued to go about their work calmly while German bombs fell all around

them. Inspired by their example, I suggested to both the public prosecutor and the counselor for the defense that

we could go on with the trial. But suddenly the prisoner himself jumped up, searched his pockets and pulled out

a rumpled arm band bearing the insignia of the Civil

Defense volunteers, tied it around his arm and began to shout instructions to all those present: “To the air raid shelter! To the air raid shelter immediately!”” Then he turned to me and said, politely but firmly, “Your Honor, please gn down immediately. Now I am giving the orders

here. Pi sase go to the shelter!” The courtroom emptied

out in a few seconds. A little later, when the all-clear had sounded, the court

reconvened, and the young man, pale and serious, said

to me, “Now I am again under your jurisdiction.” With

that he quietly resumed his seat in the dock.

SEVEN

Unconscious Humor

In the foregoing paragraphs I have attempted to analyze

the major sources of courtroom humor, but it is impossible to enumerate them all. Hidden rivulets branch off

from the main current and flow on, and it is impossible to assign a name or category to each. They reappear in different forms and in unusual ways. Sometimes frag-

ments of humor are revealed in the words of litigants, wit-

nesses or lawyers; sometimes in the cleverness or in the naiveté or in the attempted deceptions of offenders as well as of their victims; sometimes in the peculiar thought processes of the layman who turns to the court for redress. But this much is certain: the primary source of courtroom laughter is the daily life of our people, and

this includes every class and level of our body social.

One day I was hearing evidence in two criminal cases, both involving charges of theft. In the first case the defendant was a woman of the upper classes. The charge

was that she had entered a store and, while the owners

were busy with other customers, had picked up several

items of gold jewelry and placed them in her purse. She had been apprehended as she was leaving the store, and now she was standing trial. The accused stood in the dock 192

Uneonscious Humor

193

obviously bewildered, her head bent low while her fingers

played nervously with her purse. When the charge had been read and she was asked whether she pleaded guilty, she nodded her head afhrmatively without uttering a sound. Then her husband requested permission to speak,

but asked that she be excused from the room. After the

woman had been led out, the husband ascended to the witness stand, took the oath and proceeded to reveal a tragic story. In summary, this was his tale:

He was a physician by profession. For several years his wife had been suffering from a severe case of klepto-

mania, and science had not yet found a cure for her

disease. He tried to make sure that whenever she went shopping, he either accompanied her or sent along one of the children or the housekeeper to keep watch over her. But occasionally she did succeed in evading his guard, and then he would find in her possession various objects that she had picked up. If they bore any kind of identification marks he would run to the stores to return them or to pay for them; if not, he would lock them in a closet and hope that someday the owner would turn up. He had already been forced to change apartments several times because of the embarrassment she had caused him and his children. As soon as he moved into a new home he made the rounds of the neighboring storekeepers, grocers and fruit peddlers to explain about his wife’s illness. He pleaded with them to act as if they knew nothing

about it. If they noticed her taking something, they should

pretend not to have seen it, and simply add the cost of the object to his account. They kept accounts, and he paid. Every month he paid their bills without asking any questions. Only he himself knew the full extent of the tragic situation, but he never said a word to her. His own experi-

ence as a doctor, as well as the books on this subject

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HUMOR

that he had studied, warned him that it was dangerous to reproach her, for then she might try to injure herself.

On the day of this particular incident she had somehow eluded his watchful eye and had entered a shop where she was not known, and there the incident had happened.

She had indeed committed the theft, but from a medical standpoint she was not responsible for her action. He therefore requested the court to take her illness into ac-

count when rendering the verdict.

This was the husband’s story, told with frankness and sincerity. The sentence was of course a lenient one because of these special circumstances. Immediately afterwards came the turn of the second defendant. He was a young Persian Jew accused of stealing a bicycle from a cellar. After the charge had been

read to him, the accused began to speak, with much grim-

acing and gesticulation: “I...1...I am just like her—like the woman who was here before me. .. . I don’t want to steal . .. I really don’t want to steal anything. . . . But when I see something valuable, a voice inside says to me: “Take!” .. . and then I take... But I am not responsible ... I am not a thief... just like

that woman...” I asked him whether he could produce any witnesses,

and he answered with a puzzled smile: “Witnesses? How can I bring witnesses? Nobody else hears this voice inside me. Only I hear it. Where would I find witnesses?” To what category of humor shall one ascribe this story?

A few more examples of humor that defy classification:

A woman was found guilty of some minor offense and was fined one lira. As she left the courtroom she smiled (was it an innocent or a knowing smile?) and said

195

Unconscious H. umor

liras quietly, as though to herself, “Nu, I still made two on this business.” Then she explained that at first she had consulted a lawyer, who

asked a fee of three liras for

handling her case. Choosing instead to defend herself, she had to pay a fine of only one lira, leaving her a clear

profit of two liras. And a man who was fined 500 mil for a blackout vio-

lation asked, “What, has the price gone up? Last week

they were charging only 250.” Bus drivers like to tell the story of one leagues who was charged with violating one transportation rules: overloading his bus as many as seventy passengers at a time.

of their colof the public and carrying A policeman

testified that he had noticed that the vehicle looked unusu-

. ally crowded, had stopped it and counted the passengers The judge, wanting to see for himself whether the accu-

sation was justified, ordered that the bus be brought to

with the courthouse. This was done. Then, in compliance hapthe judge’s directives, it was filled with people who

pened to be standing nearby. When the bus was jammed

zed in, full and not another soul could have been squee

the judge counted and discovered that it held only some fifty-odd people. He thereupon dismissed the charge, explaining that there must have been some error in the policeman’s count.

The driver was naturally pleased with the decision and

thanked the judge. Before he left the courtroom, however, the he turned to the judge and said, “But, Your Honor,

truth is that the policeman was right.”

I The astonished judge asked, “How is that possible?

myself tested the maximum capacity of the bus and found

that it could not possibly have held seventy people!” The driver smiled and answered, “Maximum capacity,

bah! The people you used to fill up the bus did not

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COURTROOM

actually want to go anywhere, so they the people I carried had been waiting were anxious to get home. They had to like that don’t know about ‘maximum always room enough for them.”

HUMOR

felt crowded. But in the hot sun and get in. Passengers capacity.’ There’s

Drivers, who as a group are among the court’s most

regular “clients,” have developed a humor of their own. Their wit spares no one, neither judge nor policeman. It is their theory that the driver who quickly pleads guilty to whatever violation he is charged with is likely to get a more lenient sentence than the one who attempts to defend himself. Thus the court usually manages to dispose of a

hundred cases involving bus or truck drivers in no more

time than it would take to settle five other traffic violations. As an illustration of this principle, drivers tell the

following story:

One Friday the government attorney responsible for prosecuting all charges in the category of public transportation arrived at the courthouse in the morning, looked around and saw that the waiting rooms and corridors were unusually crowded. He realized that even if only a

small percentage of the accused were to plead innocent

and demand individual hearings, he could not finish his job by nightfall. He thereupon addressed the assembled drivers as follows:

““Gentlemen, we are here today to deal with violations

that are relatively minor. Those who wish to plead guilty,

please step over to my right; those, however, who are determined to pay a fine of at least ten liras, remain on

my left.”

That day the court finished its work in record time—at

least, that is how the drivers tell the story.

«

Unconscious Humor

197

make one general Before closing this chapter I must false impression of observation. So as not to create a incidents related in levity, 1 must emphasize that all the

ng one day or even these pages did not take place duri comic interludes, the during one year. Except for a few ing.

deals is not amus subject matter with which the court ected in these proThe image of our generation is refl rays of the setting ceedings. The hour is twilight. The last

dawn of tomorrow. sun of yesterday mingle with the n. It is our fate— Light and shadows and great confusio tion—that within ourthe fate of a generation in transi intertwined; there is selves yesterday and tomorrow are courtroom, that faithno wholeness in our soul. And the paths of a people thirstful mirror, reflects the troubled for redemption. Day ing for salvation and hungering als and tell, in the after day men pass through its port g and

bles, sufferin simple language of the people, of trou and the , the aspirations, the longings

toil. The pain bare. These reveladesires of the individual are here laid r times depressing. tions are at times amusing, at othe se

intended to arou But the humor is not of the kind that is Life in is the tragedy told for its own sake.

laughter, nor or of the courtroom, all its nakedness is seen in the mirr of Jewish folkways to where we may trace the patterns these pages. whose description I have dedicated

COURTROOM

TRAGEDY

SESE, ot

ONE

The Juvenile Delinquent on Trial All those who habitually attend court sessions, as well as

many who find themselves inside a courtroom only infre-

quently, are familiar with the regular courts, their names and jurisdictions—that is, the Magistrate’s Court, the Court of Appeals, and the Supreme Court. These courts

carry on their work in public; their doors are wide open,

and anyone may come in and listen. Not everyone, however, knows that in one building, far from the din of litigants, plaintiffs, defendants, accusers,

accused and onlookers, remote from the tumult of clerks, guards, prosecutors, defenders and witnesses, a different kind of judicial activity is carried on, quietly and behind closed doors. This is the court that deals with juvenile

criminals—the Youth Court—where children and adolescents, who have strayed from the path and have come

in conflict with the law, stand trial. How does this court differ from all others, and what

is its function in our national community? Legislation designed to provide special care for the young criminal, with the aim of guiding him back to a socially acceptable life, dates back only about thirty years. In order to appreciate fully the change in values that has taken place 201

202

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during this period, in legal theory as well as in its practical implementation, it is necessary to know something of the situation as it was before the influence of western thought was felt in this country.

Before the conquest of Palestine by the British, and

even for some years thereafter, there was only one single

paragraph on the statute books which included almost all the laws governing the status of young offenders, as well

as instructions to judges for dealing with such cases. If we bear in mind that the Ottoman criminal code had last been revised in 1858, we can easily imagine what consideration was accorded the problems of the criminal in general and the youthful criminal in particular. Some changes and improvements, it is true, were made in the

course of the years, but the code as a whole remained in

effect until 1937, and the paragraph dealing with minors

until 1922. A youthful criminal, as defined by Ottoman law, was

any adolescent who had not yet reached complete sexual maturity, a period that was limited by the law to the years between twelve and fifteen for a boy and nine to fifteen for a girl. With regard to guilt and punishment the theory was

that no one, no matter how young, was exempt from pun-

ishment. The tender age of a criminal was reason only for ameliorating his punishment, but not for doing away with it entirely. Thus, for example, if the offender had not yet attained the age of puberty—that is, if he was a boy younger than twelve or a girl less than nine years of age—the assumption was that he could not yet fully distinguish between right and wrong and could therefore not

be punished with the same severity as an adult. Gen-

ote

The Juvenile Delinquent on Trial

203

erally the court was to place such a child under the guardianship of his father, his mother or other relatives,

provided that sufficient guarantees for his good conduct in the future could be produced. If, however, such guar-

antees were not forthcoming, the special! leniency of the

law could not be applied and the child had to be sentenced to a prison term “for his own improvement.” We

may easily imagine what improvement such a youngster

found in prison in the company of criminals of every age and description. In the case of an adolescent—a boy between twelve and fifteen or a girl between nine and fifteen—it was up to the court to determine the extent of moral responsibility. If, upon examination, the judge found that the youth could not distinguish between right and wrong, he would be subject to the same law as a younger child: he could be released in the custody of his parents or friends, the necessary assurances for his future behavior having been given. If, on the other hand, the judge established that the accused could be held morally responsible, his sentence would be more severe—although here, too, the

law allowed for some leniency and prescribed a lighter

punishment than for an adult who had committed a similar crime.

These were the mitigating provisions established by

the law: if the crime was one that was otherwise punishable by death, hard labor, life imprisonment or life banishment, the adolescent was sentenced to a five-year

prison term for “self-improvement.” If the offense was

one punishable by imprisonment or hard labor for a limited number of years, or by temporary banishment, the young criminal was required to serve a prison term of not less than one-fourth and not more than one-third the normal term. In addition he could be placed under

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police surveillance for a period of from five to ten years.

Should the offense normally also involve the loss of civil

rights, the minor—whose civil rights were negligible—

would instead be required to serve an additional prison

term of between six months and three years for “selfimprovement.” In the case of lighter offenses, the young criminal was to serve a term of no more than a third of what was otherwise provided by the law, “for selfimprovement.”

These provisions, which show little regard for the im-

provement of the mora! or social condition of the juvenile criminal, were altered in two major respects even during the period of Turkish rule. In 1874 the minister of justice decreed that both “males and females under the age of thirteen shall be considered

children,

and

youthful

offenders who have reached the age of fifteen but are not yet sexually mature shall be considered adolescents.”

Thus the rules of parental guardianship could now be applied to both boys and girls up to the age of thirteen, while youths past fifteen might in some instances benefit from the lighter punishments provided by the law for adolescents. The second major change took place in the year 1911,

during the reign of the “Young Turks” who were attempt-

ing to introduce many reforms in the political and social structure of the Ottoman Empire. By this new law, the court was empowered to assign a minor under the age of thirteen to a special school instead of returning him

to the custody of his parents or guardians. In practice this important change had little effect, since there were

few reform schools to be found in the Turkish Empire,

and this remained a theoretical rather than an actual improvement.

The Juvenile Delinquent on Trial

205

An additional change came with the abolition of the

death penalty and life imprisonment for those between

the ages of fifteen and eighteen. This indicated that the

legislators had at last come to the realization that the

years from fifteen to eighteen still belong to the period

of youth, and that a teen-age criminal cannot be held

fully accountable for his actions. Instead of the harshest penalties, more lenient punishments were provided for criminals of this age group.

Such was the situation until the conquest of Palestine

by the British and for some years thereafter. The civilian administration that replaced military rule turned to the task of pruning the complicated Ottoman legal structure. One of its first reforms, in 1922, was the enactment of a new law for juvenile offenders. The major provisions of this new statute and its sub-

sequent revisions may be summarized briefly as follows:

any offender less than nine years of age was not subject to punishment, on the assumption that such a young child does not yet possess the faculty of distinguishing between right and wrong, and cannot, therefore, be considered to have criminal intentions. Nor can he be held criminally

responsible for his actions. Any child younger than thirteen could not receive the death penalty or be sentenced

to hard labor, imprisonment or the payment of fines. An offender older than thirteen but younger than eighteen was not subject to capital punishment nor to life imprisonment with hard labor, though he might be sentenced to serve a term in prison. A male offender younger than sixteen might also be subject to corporal punishment, or could be released in the custody of his parents

or guardian instead of the usual punishment.

The most significant aspect of this new law, however,

was not its greater leniency or the establishment of lighter

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sentences for various age groups, but the special provisions it contained for the purpose of healing the sick soul of the youthful criminal: education and reform instead of physical punishment. These provisions took two major forms: first, assigning the delinquent youth to a special school; and second, placing him under the sur-

veillance of a probation officer.

Special schools for juvenile criminals were established by the government and the law provided that if a boy under sixteen (or a girl under eighteen) was found guilty of a major offense, the court was to assign him to such a school or other appropriate institution for not less than a year. Even if the offense were a minor one, but the parents of the delinquent refused to assume responsibility for his behavior, the court was authorized to consign him to a reform school. The purpose of such a sentence was to give the offender the opportunity to acquire some education and training during the term of confinement. Under no circumstances was anyone to be kept in such an institution after he had reached the age of twenty. The presiding officer of the court could, either on his own initiative or at the request of the director of the school or of the youth’s parents or guardian, terminate this sentence whenever he was convinced that such action would serve the child’s best interests.

In accordance with this same desire to keep the young delinquent out of the regular prisons where he might

come under the influence of hardened criminals, the law

also provided that a defendant under the age of eighteen

could be assigned to a reform school or similar institution while awaiting trial.

The second innovation of the new legislation was, as

mentioned above, the creation of a special legal and ad-

The Juvenile Delinquent on Trial

207

ministrative body for dealing with the juvenile criminal:

the probation office. The law provided that when a youth

under the age of twenty was convicted of a criminal offense, the court, instead of imposing the usual sentence,

could recommend his release and place him under the

supervision of a probation officer for a period of not more than three years. For this purpose the presiding officer of the municipal court was authorized to appoint a number of men and women, chosen from the ranks of educators and others concerned with the problems of the young, as probation supervisors.

The task of the probation officer is to visit the young delinquent entrusted to his care at frequent intervals, to advise him and to assist him in times of trouble. The

officer also has to remain in touch with the court and submit to it periodic reports on the probationer’s behavior and progress. If the officer comes to the conclusion that all efforts are in vain and that the delinquent youngster is showing no improvement, he must so inform the court. The presiding judge then summons the delinquent and his parents or guardian and reimposes the suspended

sentence. And vice versa: if the youth’s behavior satisfies

the probation officer, the judge may, on his advice, end

the probation even before the expiration of the term and

can also have the conviction stricken from the record. In contrast to the situation that had existed previously, the law of 1922 marked an extraordinary turning-point in the legal attitude toward youthful offenders. However, an entirely new and even more progressive era in the realm of dealing with juvenile delinquents and in the effort to eradicate delinquency began with the enactment

in 1937 of new legislation, which

September 1938.

became

effective in

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COURTROOM

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The outstanding characteristic of each and every paragraph of this law as well as of its subsequent revisions, and the pervading spirit of the legislation as a whole, were derived from the recognition that young children, even if they have committed felonies and from the point of view of society are classified as criminals, must not simply be punished, but must be treated as unfortunate and forsaken youngsters who need guidance and education. The child was now seen not so muchas a criminal but as the victim of a social crime; the legislators therefore instructed those who sit in judgment not to inflict punishment, but rather to find ways of removing the child from his unwholesome environment or to help the youngster even if he remained in the same surroundings in which

he had been raised.

Although technically the place where the juvenile offender stands trial is called a “‘court,” the Youth Court, the aim has been to give that place a home atmosphere in which the child will not feel himself confronted by hostile judges, but will sense that he is in the company of men with experience in the problems of life who are interested in his welfare. The law therefore provides that the Youth Court shall hold its sessions in a building or

room different from the court for adult criminals, or at

least that this court shall meet on different days or at different hours. The presiding magistrate may also, at his discretion, hold hearings involving a minor in his private chambers. The tension, the ceremonialism and the depressing solemnity that characterize the proceedings of a regular court are entirely absent in this tribunal. The public is excluded. Lawyers and their staff are admitted only by permission of the court. Representatives of the press and of the news agencies are admitted unless they are specifically barred, but no one is permitted to

The Juvenile Delinquent on Trial

209

publish the defendant’s name, picture, address, the name

of the school he attends, or any other detail of his per-

sonal life that might identify him. The mark of Cain which is usually stamped upon the brow of anyone who has had the misfortune to be accused of a crime—and the undiscerning public rarely differentiates between one who was only accused and one who was actually found guilty—must not be permitted to cast its shadow upon a youngster who stands on the threshold of life. If the accused has no legal counsel, his parents or guardians are permitted to advise him on how to conduct his defense. The court has jurisdiction over them, too, when it comes to deciding on the ways and means to be employed in

healing the disease that has afflicted the young criminal.

Not only in the court itself, but also on the way to and

from it, the youth must not be overwhelmed with fear of

the law. For this purpose, and also in order to prevent him from falling into evil company, the youngster, while

he is taken to or escorted from the courtroom, while he is

sitting in the waiting room or while he is being held for

trial, is not allowed to come in contact with adults who

have been accused or convicted of a crime. Once the juvenile stands before the bar of justice, there

is no basic difference between the proceedings here and

those in a regular court. The judge explains, in simple language, the nature of the crime of which the defendant stands accused. If the crime is such that it may entail a prison sentence of more

than five years,

the court must

ask the accused whether he prefers to be tried here or in a municipal court. Whichever tribunal he chooses, the court must, in hearing his case, observe the special provisions of the law governing minors. If the accused pleads “‘not guilty,” witnesses are called

and it is the duty of the court itself to examine and ques-

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COURTROOM

TRAGEDY

tion these witnesses. If the accusation is proved or the defendant admits his guilt, the court must ask him

whether he has anything to say that might extenuate his guilt and reduce his punishment.

Up to this point almost everything is handled just as it would be in a regular court, But from here on, there is a parting of the ways. The court is now dealing, not with a criminal whose punishment is to serve as a warni ng to

others, but with a child who needs help and guidance. It

is not the general welfare that the court must protec t so

much

as the welfare

of the individual,

the victim

of

society. The court does not rush to pronounce sente nce and impose punishment, but investigates and studie s the background against which the crime took place, so as to be able to decide upon measures to be taken for the future. For this purpose it gathers information from the delinquent himself and from his parents and his probation officer, regarding his general conduct, the home environment and social group in which he lives, his prog-

ress in school, his health, both physical and mental, and

so forth. If the court cannot obtain all the necessary information immediately, it may postpone sentence or place the youth under special medical observation. When the court has thoroughly investigated the youth’ s life and background, it imposes sentence upon him. Since the court’s main interest lies in protecting the youth ful

offender’s own welfare, the sentence, too, must be directed

toward this goal. One of the important factors to be considered is age. The law recognizes three different age levels of juvenile criminals: a “child,” who is young er

than fourteen;

an

“adolescent,”

who

is over fourteen

but less than sixteen years old; and a “young adult,” one

between sixteen and eighteen years of age. In English

law, as indicated above, a child of eight or under is not

The Juvenile Delinquent on Trial

2il

subject to punishment, the assumption being that one so

young cannot distinguish between right and wrong. While

the law of 1937 did not specifically deal with this point, we may assume that under our law, too, a child of eight

or less cannot be held criminally responsible. The types of punishment which the regular courts can impose upon adult criminals are limited. Not so in the

Youth Court. The forms of punishment which may be meted out to juvenile criminals are many and varied, and there are few limitations. These limitations, moreover, are all in favor of the offender. Thus, for example,

a

“child” may never be sentenced to a prison term. Even an “adolescent” may not be subjected to imprisonment if any other way for dealing with him is available, such as: probation, fine, corporal punishment (this was abolished in 1950), reform school, and so forth. No one under the age of eighteen is subject to capital punishment, Should a minor commit a crime which carries the death penalty, he is sentenced to prison for a term to be

decided by the Minister of Welfare (formerly by the

High Commissioner). The place and conditions of confinement are likewise subject to the Minister’s decision.

Except for these limitations, the Youth Court, in pro-

nouncing sentence upon a “child” or “‘adolescent,” has a wide choice. It may entirely suspend the conviction,

release the youth in his own custody or in the custedy

of his parents, place him in the charge of a relative or other responsible person or under the supervision of a probation officer, assign him to a reform school or similar institution, impose a fine upon him or upon his parents, or, if all other methods appear to be futile, the court may sentence an “adolescent” to a prison term. In the last analysis, it is entirely up to the discretion of the court to

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deal with the youth in whatever manner it deems most

suitable for his own welfare.

I have already remarked that the efforts of the legisla-

tors were directed toward giving the Youth Court the

nature of a legal institution that protects the young against crime, rather than punishing them for committing a crime. These efforts found their noblest expression in those provisions which, for the first time in the legislation of our country, extended the jurisdiction of the court over the problems of children and adolescents who were in need of aid and supervision. In the natural course of events a person, be he an adult or a minor, is brought to trial only after he has com-

mitted a crime. Current law, however,

has opened

the

door to judicial supervision over young people who stand

in danger of becoming involved with crime, so as to pre-

vent their falling prey to evil influences and eventually breaking the law. Like the English law upon which our

law was patterned, this legislation also provides that

responsible public officials—in our country, the probation officer or the representative of the government’s social welfare agency—may bring to the attention of the Youth Court children whose appearance indicates that they are under sixteen years of age, who are found begging in the streets or wandering without a home or visible means of support, children who are found in the company of a known criminal or prostitute, or minors who are living in an atmosphere that may tend to cause their moral corruption. In all these cases, if the court becomes convinced that the child or the adolescent is in need of supervision and protection—even though no actual crime has as yet been committed—it may provide

for the removal of the youngster from the corrupting

environment in which he lives, by assigning him either

The Juvenile Delinquent on Trial

213

to the custody of a responsible individual or to an appropriate institution, or by placing him under the surveillance of a probation officer. The Minister of Welfare may at any time at his discretion terminate this supervision or release the youth from the institution. In addition, if the Minister of Welfare sees that a de-

linquent child or adolescent is about to be released from

such an institution, but fears that his release is likely to be against the youngster’s own best interests, he may re-

quest that the Youth Court extend the term of the youth’s

confinement to the institution for any length of time, up until he reaches the age of sixteen. I have already referred several times to “probation

officers.” The function of the probation officer in the ad-

ministration of justice for juvenile offenders is an extremely important one. He organizes the preliminary investigation before the youth stands trial, and prepares

a detailed report to the court on the family environment

in which the delinquent lives, on the relations between

his parents, on his educational background, on the moral and economic status of his brothers and sisters, on the

social background of his crime, on the delinquent’s personality as revealed in his relations with his family and

his friends, in school and on the streets. This report, which includes the probation officer’s recommendations,

is of great assistance to the court when it decides upon the method to be employed in handling the youngster after his guilt has been established. If the court decides to place the youth under the supervision of the probation office, this officer periodically visits his home and ob-

serves his conduct, his way of living and his employment.

He speaks with the youngster as well as with his parents, tries to persuade him to live up to the provisions of the court order, advises and assists him and attempts, in co-

214

operation with appropriate

COURTROOM

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social agencies,

to obtain

suitable employment for him and to interest him in the activities of some congenial youth organization. In short:

the probation officer functions as a “big brother,” anxious

to help the young offender reform his life. He also submits periodic reports on his ward’s behavior to the court, and it is on the basis of these reports that the court determines what further steps shall be taken. Much has been written and more has been said about the problem of crime and delinquency among our youth.

Teachers and educators have had their say, as have doc-

tors and social workers, psychologists and all those interested in various social reforms. But their approach has always been that of the specialist equipped with his tools: numbers and statistics, medicines and prescriptions. The portrait of the young criminal, as seen against the background

of his environment,

emerges

colorless, shallow

and blurred. I am not here attempting an exhaustive scientific analy-

sis of the nature of juvenile crime. I will simply try to sketch a picture of the delinquent’s personality, and to submit a brief explanation of some of the causes that bring him before the court. Who are the youngsters who appear in Youth Court?

What has led them to commit the acts for which they are arraigned? Here are several examples:

Shortly before the outbreak of World War II a young

girl, whom we shall call Rivka, was arrested on a charge of theft. Rivka was fifteen years old, but she looked like a child of twelve or less. She was short, her body frail, her face yellowish and pale, her cheeks hollow between her cheek bones. Yet her hands were the hands of one

|t | |

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who has known hard work, and her black eyes told of a life of toil and disappointed hopes. She had long since left the world of childhood. Rivka had parents and six brothers and sisters; the oldest was seventeen years and the youngest six months

old. All of them—a family of nine—lived in one room.

The rent for this room was one lira a month. The father was sick and needed an operation; because of the lack of money he no longer went to a doctor but bore his pain in silence. The mother used to be the breadwinner, but now she had to take care of an infant as well as of her sick husband. The entire burden of providing for the family

thus fell upon the eldest son, who earned two liras a

month, and upon Rivka, who received two-and-a-half liras a month as a domestic. She had begun work when she was eleven years old, and as she had become more experienced her wages had risen. Whatever she earned she gave to her mother for the support of the household, without leaving herself a penny of her own. But there was simply not enough to make ends meet; want and deprivation were never absent from the house. Rivka herself expressed it in a sobbing voice: “It was just too much.

Always to suffer and to suffer. In truth, I was sick of my life.”

Recently a man, a widower of thirty-five, had begun to frequent the house and had taken a liking to the fifteen-

year-old Rivka. He spoke with her parents and they

agreed to the match. Rivka was not consulted. But when she was told she made no attempt to disguise her joy. At

last she would be freed from her slavery and would live

a life of her own. This girl, who had not known the mean-

ing of childhood, was already dreaming of a home, a hus-

band and a family.

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The date of the wedding was set, and Rivka began to make the necessary preparations. But now she faced an insoluble problem: where could she get the money to pay for the few dresses that she had to have, for some

linens and for a pair of shoes? Her parents were penniless

and could not help her. Rivka struggled with temptation

and succumbed. Her employers trusted her completely,

and she knew that in a chest in the bedroom, among the

sheets and pillowcases, her mistress occasionally hid

small sums of money. Once, when she was alone in the house, Rivka searched the drawer, took out two ten-lira bills and concealed them in her shoes, That night she brought home several yards of dress material. The next evening she brought home a hat, and the third night a pair of high-heeled shoes. The mother was astonished by

all this splendor, but Rivka had prepared her explana-

tion: this was her “‘lady’s” gift for the wedding. Some days later the mother met the “lady,” Rivka’s employer, and expressed her deep gratitude for the kindness she had shown the girl. The woman was surprised and did not know what to answer. But when she returned home she began to search and soon discovered the theft. The matter

was placed in the hands of the police and Rivka was

arrested. When the groom heard that his bride had strayed from the path of virtue, he broke the engagement. Rivka continued to work for strangers. The badge of shame was forever engraved upon her soul. And here is a second example: David is a boy of fourteen. He has three brothers: twelve, nine, and five years old. He also has two sisters: seven and three years of age. The father, an honest work-

ing man, provided for his family so that they never knew

want. The older children went to school, the mother took

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217

care of the house and of the small children—all as is

proper and fit for a good Jewish home. But when David

was twelve years old and in the sixth grade, his father suffered a paralytic stroke and became a bed-ridden invalid. David, the oldest son, left school and took upon

himself the burdens of a breadwinner. He began to work as an errand boy in a grocery and with his meager earnings supported the entire family. The mother was unable to lighten the heavy load that had fallen so suddenly

upon the shoulders of her first-born, for in addition to

her regular daily work she now had to attend and comfort her sick husband. When the father became ill, want entered the house. The family moved from its comfortable apartment into a single room, for which the rent was one lira. With great difficulty David paid this lira out of his earnings. But no matter how carefully they economized, his wages simply were not enough to supply even the barest minimum of the family’s needs. David now assumed a new task: he began to engage in

“business.” In the early evening hours, after he had finished his work at the store, he strapped a smal wooden

box onto his chest and filled it with pencils, some jars of ointment, a few small mirrors, soap, shoelaces and simi-

lar odds and ends. Then he made the rounds

of cafés,

restaurants and other gathering places and called out his

wares in a plaintive voice: “Combs, notebooks, pencils—

do you need anything?” The income from this “business” was not likely to make him rich, for the patrons of the

cafés were not particularly pleased with the peddling

youngsters who disturbed their leisure, and more often

than not would chase them away with the comment: “Why

don’t you go to work, you loafer!” Or: “Your place is

on the school bench, young fellow!” The waiters would

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scold: “Get out of here, you scamp, or I'll call the

weeks, when David could no longer bear to watch the suffering of his parents and his small brothers and sisters, he got up, dressed and went out. A short time later his

mother was informed that he was being held in the police

station. Her agonized inquiry revealed that David had gone to the home of one of the grocer’s regular customers, had asked whether anything was needed and, while the woman was in the kitchen, had put into his pocket a purse

full of money that was lying on the table; he had also

hidden in his basket a camera that was hanging from a hook in the foyer. On his way out, overcome with nervous-

ness and

confusion,

he had

also attempted

to steal

a

bicycle which someone had left in the lobby. He was caught immediately and confessed his crime. Here is a third, and even more disturbing, example: Rachel was arraigned on a charge of prostitution. Her story was short, but its circumstances were frightening. Her father had died when she was a small child and her mother supported herself by doing laundry for others. But the mother’s income was insufficient and Rachel was sent out to work in a hotel. Her wages consisted of her meals plus a small amount of cash. There were several younger brothers and sisters. But since there was no one to care for them at home, they roamed the streets, rum-

yen on gun 4 geben |e

neglect his “business” while he was sick. Now the family really began to feel the sharp bite of poverty. After two

ae APE

in his place. David was greatly upset by the loss of his

job, but he was too weak to leave his bed. He also had to

ac epee te”

police!” Despite this, David would retum home at midnight, his pockets full of coins and bills. He gave every penny he had earned to his mother, and this money helped to cover the weekly expenses. One day David fell ill and the grocer hired another boy

The Juvenile Delinquent on Trial

219

maging through garbage cans and pilfering fruit from the carts of peddlers.

When Rachel was thirteen she was married. A few

months later her husband divorced her and she returned

to her mother’s house and to her work. The poverty of the

home was depressing, and again her hard work brought her only small compensation. The mother, always busy with the laundry, had no time to think about Rachel or

what she was doing. When the girl finished her work at night she would wander through the streets of the city and stare enviously at the colorful dresses and the shiny shoes displayed in the windows of the big stores. The young men who habitually loiter in the streets began to

notice and to follow her, awaiting an opportune moment to meet her “accidentally.” Rachel did not repulse them;

on the contrary, she became friendly with them. One night she did not return home until after midnight. From

then on she was often seen in the company of a man—

sometimes two—in various night spots or in a cinema.

She neglected her work and after a while left her job,

without asking her mother’s permission.

But she was

never without money. She began to watch her appearance,

groomed her hair stylishly and dressed in pretty clothes. Once she came home carrying an expensive leather handbag. Now the mother became suspicious and turned to a social welfare agency for help. It was a clear case of neglect, and the agency decided to take the girl under its wings. Rachel was placed in a dormitory for girls, sent to night school and given a job. But the pull of the street was too strong: the girl could not adjust to the wholesome atmosphere which now surrounded her. She ran away from the dormitory and stopped going to school. This time she did not return to her mother’s house, and for a long time there was no trace

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of her. A few months later she was picked up by a police-

man in a nearby city and brought back home. But she could not stay there. The lack of sufficient food and decent clothing, and the absence of a watchful eye and a guiding hand combined to throw her back into the street. She disappeared a second time. The police could not locate her; her mother gave up all hope of seeing her again. One day she appeared in the police station of the next town, weak and disheveled, and pleaded for protection

against a man, a procurer,

who

had enslaved

her and

lived off her earnings. She was arrested and charged with prostitution. A medical examination revealed that she was suffering from a venereal disease. She was fourteen years old.

The above examples suffice to indicate the major cause of crime among youngsters like these—poverty, want and deprivation in all their ugly guises; poverty that leads to moral neglect and poverty that inflicts physical hunger. Poverty has many demonic assistants that ensnare the young and lead them into temptation. The lot of the children of poverty is a bitter one; their life becomes a burden to themselves and to others. They lack a sense of security in facing the future. The only conversation they

hear from their parents is about the fear of what the next

day will bring: the rent will fall due, the grocer will

demand payment, shoes for the winter must be bought. The father is often unemployed. The mother shares the burden of earning a livelihood and is not able to devote herself to the care of her children. And the child shows the effects of this neglect. His meals are not ready on time and his clothing is not kept in order. His body is undernourished and his resistance

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to disease is low. All around him he observes a merciless

struggle for a meager existence. Quarrels break out between his parents over petty sums of money, and in his immature mind there develops the thought that money is the foundation of all human life. When there is money there are shoes and warm clothes and a nice place to live. With money one can also buy candies and toys and all the things his neighbors and classmates enjoy and which he, too, craves. Money—money—that is the answer. And

the child determines to obtain money somehow. His schoolwork no longer interests him, for he has already

learned that knowledge will not fill an empty stomach.

He leaves school and goes out to seek work or do “business.” Any kind of work and any sort of business that comes his way will do: shining shoes, working in a fruit store, running errands for a grocer, peddling shoelaces and toothbrushes and similar employments that take

him out of the innocent world of childhood and bring

him into the adult world of self-sufficiency. If his parents demand that he remain in school he seeks work at night, during vacations, and sometimes even between classes. The street, and the give-and-take of the marketplace, tug at him with magic strings. He begins to cut classes, plays truant occasionally, and then finds that he has been absent more often than he has attended school. Through his new activities he comes in contact with all sorts of people, some of dubious character, and grows accustomed to vulgar speech and profanity. Soon he is aping the speech and manners of these people.

Then there is another factor to be remembered. A child

is always a child, whether his parents are rich or poor. Every child craves toys, new clothes, a piece of chocolate. The children of the poor have no spending money. When the class goes on a picnic, the other children boast that

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TRAGEDY

they have ten g’rush, or perhaps fifteen, to buy candy and soft drinks. But the poor child has only a piece of bread spread with margarine that his mother prepared before she went to work. Envy gnaws at him: why can’t he have as much as the others? Why do Yosef and Obadiah and Miriam have all they want, and only he has

to be satisfied with so little? Something inside him whis-

pers that he need only stretch out his hands and take, and no one will notice. When the opportunity arises, it is hard

to resist. And opportunities arise on the street and in the marketplace. In a poor neighborhood the street fulfills another role.

The entire family lives in one dark, airless room. All eat

and sleep here, adults, children and infants. This would not be so bad. A child can find entertainment even in an overcrowded room. But the adults will not let him play

among the bed linens and the wash tubs. They chase him

out into the street. And this street is not merely a street; it is a marketplace: slaughtered chickens, vegetables, fish

and herring, second-hand furniture, old clothes and scrap

iron-——all these are sold here in hopeless confusion, and the child in the midst of all this is again not free to move. Wherever he turns and whatever he does he interferes with someone—the peddler, the storekeeper, the porter— and these too scold him and chase him from one place to

another. An apple falls from the cart of a fruit peddler.

There it lies under the wheels and no one has noticed it.

The child picks it up, at first with the intention of return-

ing it, but then changes his mind, hides it in his pocket

and eats it when no one is looking. The next day he looks

for another apple, and if he finds no fruits that have fallen accidentally, he tries to take one from the crate.

If the peddler is busy, especially on a Thursday or a

Friday, he has no time to watch the youngster. And so the

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223

first theft has been commitied. He grows more experienced and soon dares to engage in more serious thefts.

The road to crime lies open before him.

Yet another trap lies in wait for him. In the crowded streets he meets bad companions. These are not members of an organized society of criminals, but other neglected and abandoned children just like him. Experience has taught them that acts of petty thievery are more easily carried off by two than by one. One diverts the attention of the peddler while the other slips fruits and vegetables

into his pockets; then they meet in a dark corner and

divide the loot. When they have successfully completed one coup, they embark upon a second and a third. They put their heads together, they plan, they pool their cunning; if necessary they take in a third parmer—and a new “gang”’ has been formed. When the child brings home his spoils—a box of nails, a rusty hammer, a worn garment—the poverty-stricken

parents often do not question too closely how he came by

these. The father uses the nails and the hammer, and the

mother sews a new dress for the baby. They are eager to

accept the child’s explanation that he found these treas-

ures; they are easily satisfied with it. The problem becomes even more acute in the case of a girl. The destitution at home forces the parents to send

their young daughters out to work for others. In the homes of their employers these children see an entirely

new world, a world of plenty. The weakness of the under-

nourished

body

has

undermined

the

child’s

moral

strength. If there is no close supervision the girl will not

long hesitate to take small items from her employer’s

wardrobe: a colorful scarf, a pair of stockings, a night

gown. And there is another danger. On their way to and. from work these naive girls make the acquaintance of

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unscrupulous men who are only waiting to entrap them. And the wretched children often stumble and fall. Some argue that, although there has always been pov-

erty in our midst, yet in the past Jewish children did not become delinquents. To them I say that our generation is not like the generations before it. In the shtetl of east-

ern Europe, and in the villages of Yemen and Morocco

and Algeria, the Jewish community was a homogeneous one. There were no internal divisions into Ashkenazim,

Sephardim, Yemenites, North Africans and Bukharians, Europeans and Orientals; nor were there sharp differences in the standards of living and general patterns

of behavior community.

among

the

individual

members

of the

But now? Go out into the main streets in the early

evening hours, even late at night, and you will see bare-

foot, ragged waifs pressing their faces longingly against the panes of brightly lit store windows. They stand for

hours and stare at the childish treasures that beckon to

them through the glass, or at the pastries and delicacies that make their mouths water. For a blissful moment they imagine that they need only stretch out their hands and take whatever they desire. But that is a fleeting illusion. In the end they return to their wretched homes and go to

bed half hungry. Can one expect these children not to feel the burning desire somehow to obtain the penny with which to buy the toy, or the cookie, or the pretty ribbon? Can every child be strong enough to conquer that desire and to subdue that longing when the test comes?

Every educator will tell you that a large percentage of the children who cannot concentrate on their schoolwork and who create classroom problems come from

°

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homes where family relations are disturbed. Accusations,

quarrels and arguments between parents are like angels of destruction: they distract the child’s attention from

his studies and implant in his heart respect for adults, undermining the that is essential for the development and the formation of a wholesome youngsters sooner or later reject the

an attitude of disemotional stability of a healthy mind personality. Such moral precepts and

spiritual values taught by adults. These are the children

who become “problems” at home, in school and eventually in the society which they must enter.

The same phenomenon is recognized by anyone who

has had contact with the work of the courts, especially

in the field of juvenile delinquency.

A child from

a

broken home is likely to become a “problem” not only to his parents, but also to social work agencies, to the police and finally to the courts and to the correctional institutions set up by society to deal with the juvenile criminal.

I offer several examples of delinquents who were the products of broken homes: A boy of twelve was arraigned on a charge of theft. The proceedings of the trial and the report of the investigating probation officer revealed a segment of the depressing history of a family hopelessly discordant. The

father had been forty years old when he married; his

bride was fourteen. She had borne him five children, but the disparity between the ages of the parents had been a constant source of friction between the two. From the beginning the father was jealous and suspicious. He would frequently close his shop in the middle of the day and come home unannounced. While she was still young and naive, the woman accepted all this unquestioningly; but as she matured she rebelled against her husband’s

lack of faith and began to defy him openly. Quarrels and

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arguments, accompanied by insults and curses, became

daily events. The children were divided into two warring

camps: some supported the father, while the others took the mother’s part. One day the fighting reached a stormy climax. The father, overcome by uncontrollable fury, smashed a mirror into fragments. The frightened children hid under

the beds and under the table, but from their hiding places they saw him raise his hand and strike the mother. When she fell to the ground, he kicked her mercilessly. After this episode the mother,

on the advice of her

relatives, left the house, taking with her only the youngest of her children, a one-year-old infant. Desolation and neglect descended upon the home. The father was totally absorbed in earning his livelihood, and the children were left without any supervision. The father sent messages to his wife pleading with her to return; but she answered that she would consider coming back to the children only on the condition that he leave the house. He consented; but now the full weight of supporting and caring for the children fell upon her shoulders. It was a heavy burden for a woman, but she took it upon herself without complaint. The children of school age returned to school. The oldest son, a boy of seventeen, went to work and gave the

mother all his wages. Thus they lived, in straitened circumstances,

but in peace

and quiet.

Now,

however,

the father’s resentment again disrupted their life. He began to follow the younger children on their way home from school and when they played in the street, giving them candies and toys and trying to stir them up against

the mother. She, for her part, tried to win them over to

her side and forbade them to accept any gifts from the father. All except one obeyed her and avoided the father when they saw him in the street. But one boy, the accused,

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227

had always been on his father’s side and now, for a few pennies’ reward, gave him a complete report on what went on at home. Every night the boy came home from his

father’s store, rebellious and defiant. Finally he left the

house and went to live with the father. Here he was given complete freedom of action. He stopped going to school.

Officially he was said to be helping his father in the store,

but actually he roamed the streets all day, falling into the company of other vagabond children, and was finally arrested for theft.

Here is a second example: A ten-year-old boy, in one

of the Oriental communities, was arrested for stealing clothing on the beach. He had seven brothers and sisters,

ranging in age from one to fifteen. The father was a

gambler and a drunkard. The mother supported the family with a little assistance from a welfare agency; but the father spent every penny on drink. The children often went to bed hungry. When he came home at midnight the father would rouse his wife and demand that she give him her day’s wages. When she had no money he beat her mercilessly. She was afraid to complain; if one of the children dared to open his mouth in her defense the father would fall upon him like a wild animal and beat him. “T have had only one good year since my marriage,” sobbed the woman at the trial. ‘““That was when he went to live with a ‘bad’ woman. But she grew tired of him and threw him out. Then he came back to us, and our life has

again been filled with the torments of hell. The children

have no father; and I, their wretched mother, cannot pro-

vide for them and also take care of child himself testified that he used at night for fear of his father and cellars, in buses or in the lobbies

them properly.” The to dread going home would often sleep in of apartment houses.

On the day of the crime he had had nothing to eat; when

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he happened to see a jacket that apparently had no owner,

he hid it under his own jacket, hoping to sell it in the marketplace. He was caught and brought to trial.

Along with this boy another child had been arrested,

a boy of eleven, also an Oriental. At home there were

three more children: a boy of sixteen, a boy of thirteen

and a six-months-old girl. Eight years previously, his father had divorced his mother and taken a younger wife. The rabbinical court had ordered him to pay the divorced

wife for the support of the children, but he refused. It was difficult for the mother to provide food for the children, and often she did not even have the half-lira she needed to pay for a summons against her former husband for nonsupport. When the woman’s relatives and the

elders of the community reproached the man for his neg-

lect of his own flesh and blood, he argued that he did not earn enough to support two households. However, he was willing to take back his first wife—he was growing a bit tired of the second one. The mother, seeing no alternative, swallowed her pride, remarried the husband who had cast her off, and came to live under one roof with her successor. In the meantime the second wife had given

birth to a boy and a

girl, and soon the first wife bore

another child. It is not difficult to imagine what went on in that house day after day. Fights and arguments, screaming and cursing, even fistfights occurred daily between the husband and his wives, between the two women, and between the children. At last the first wife,

the mother of the accused, could bear it no longer and again accepted a divorce. When she left the house she took her children with her. For a long time now the boy had been neglected by his father and mother, and was untaught and undisciplined. After the second divorce he had no idea where he

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229

really belonged. When asked where he lived, he answered

that he had two homes, his father’s and his mother’s. But

in reality he lived in the streets and slept in the public parks. The mother complained that she could not support him and sent him to the father. The father chased him away and sent him back to the mother. And so, having

no place to stay, the child chose the street, that spacious

abode of all abandoned youngsters. There he met his friend and accomplice. He had many other friends who were outcasts like himself. This time he had stolen only

a petty trifle from the beach; the next time he might at-

tempt a more daring exploit—breaking into a cellar, or perhaps armed robbery. A career of crime awaited him. I have discussed the broken family as a major cause, ranking only below poverty and destitution, of the increasing rate of juvenile crime. The number of youthful delinquents who come from broken homes is truly ap-

palling. A mother cannot fulfill the role of fatherhood,

nor can a father take a mother’s place. The partnership of two guiding hands is needed to impress upon the soul of a child the seal of decency and morality. The home should be the first area in which the individual is trained

for life as a member of society, in which sound social

relationships are formed. The broken home creates, instead, a poisonous atmosphere that inevitably produces antisocial tensions. A child, growing up in such an en-

vironment, feels himself different from his friends and

classmates. He tends to withdraw into himself, to keep apart from other children, to draw up a reckoning of

his own against the world. In the end he is filled with

resentment against his parents, his teachers and all the adults who surround him, against their ways and the

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order of their world. There grows inside him the desire to upset this order—either consciously, as a means of avenging his own wretchedness, or subconsciously, out of the realization that he has nothing to lose. In either case, his world is filled with darkness; there is no one to

feel his pain or to share his sorrow.

This depressing phenomenon may be even more clearly observed in the case of stepchildren. All the tales that, as children, we read about the hard-hearted stepmother and the defenseless orphan come to life again in the procession of misery that passes daily before the bar of justice in the juvenile courts. The only difference is in the

epilogue. In the fairy tale the poor little orphan girl

stands at last, joyous and happy, at the side of the prince who came from afar to rescue her. But the child of reality stands before a judge to hear sentence pronounced upon him. The future of this child is wrapped in shadows. Many are the stories of such children. Here is one: A boy of fourteen—a “refugee” from another town— stands before the court. He is accused of stealing a bicycle from the lobby of an apartment house. He is an only child. The family situation in which he was raised was an unhappy one; there was constant dissension between his parents. But the child was not greatly affected at first, for in his presence the adults refrained from

exhibiting any overt hostility. Their economic status was

fair and they were able to give him adequate care. But, in silent competition for the boy’s affection, each pam-

pered and spoiled him. Finally, however, they separated and the boy remained with his father.

Soon a stepmother moved into the home and his happy childhood days came to an abrupt end. At first she did not show her antagonism openly and harassed him only when his father was not present. She scolded and punished him

‘

€

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for every little thing he did or did not do. She found something to criticize every day: he had spoken too

loudly in front of company; his table manners were deplorable; he had not behaved well during a visit; he had

soiled his new suit; he had tramped across a clean floor

with muddy boots; he spent too much time in the house;

he had stayed out in the street too late. Nor did her criticism take the form of gentle reprimands; it was accompanied by insults, curses and often blows.

This was the situation soon after she moved in and while the boy was still the only child in the house. It became far worse when she gave birth to a child of her own. The attention that the father had devoted to him in

the evenings was now concentrated entirely upon the new infant. The stepmother no longer hesitated to disparage

the boy openly before his father: “Your son didn’t do his homework today. . . . Your son climbed a tree and tore his new trousers. . . . The neighbor is furious because your son has been teasing his dog. . . . Your son is going to disgrace us all someday—he belongs in a reform

school!” The father’s attitude also changed. He no longer spoke gently or affectionately to the boy; now he was

always angry and ill-tempered. “What has happened to you?” he would shout angrily after he had heard the accusations brought by his wife. ““You have changed completely; you will end by bringing shame upon me before everybody. Remember that I warned you—and be careful!’ The father did not realize, or did not want to realize, that it was not the child but he himself, and the atmos-

phere of the home, that had changed. The stepmother continued to make life miserable for

the boy, and the father, now entirely under her influence,

began to beat him regularly. When the child could bear it

no longer, he stole some money from the stepmother’s

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purse and ran away to a different city where he knew no

one. At night he slept in a public lodging house and by day he roamed the unfamiliar streets. When he had no money left and hunger began to gnaw at him, he stole the tattered clothes of his fellow lodgers and sold them for a few pennies. One day he met another boy, as lonely as

himself but already an experienced thief, and together

they began to pilfer clothing and small sums of money from the beach chairs at the ocean-side. Success encouraged them and they decided to steal items of greater

value. Their first “major” theft was a bicycle they had

found in a lobby. They were caught before they managed to get far, and the investigation of the probation officer uncovered the tragic history of the young “criminal.”

Here is a second example of a stepchild’s misfortune:

This delinquent was a boy of thirteen. The charge was

stealing clothing from the laundry of an institution that cared for poor children. The boy was himself a student in

a school for backward children, but was unable to keep up with his studies even there. His father had died several years before and his mother had remarried. Her new husband was himself the father of six children. Everyone except the mother looked upon the boy as an intruder, an unnecessary addition to the family. He had to perform all sorts of menial tasks and the other children told tales against him to their father, who beat the stepson mercilessly at the slightest provocation. Many nights the child, as punishment for some minor fault, was forced to sleep in the attic, without a pillow or a blanket. The mother had

pity on him and would sometimes try to give him a little pocket money, a piece of candy or a new shirt. But the stepbrothers were always on the alert, like hunting dogs,

and reported everything to their father.

Once, when the stepfather was told that the mother had

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233

secretly prepared supper for her son whom he had just

chased out of the house, he threatened that the next time

he would throw both her and her mamzer

out into the

street for good. The child bore a grudge against the whole world—even against his mother, for remarrying: he saw

in this a desecration of his dead father’s memory. The only place where he felt free and equal to everyone was

in the street, and it was in the street that he first met cor-

ruption and was finally arrested. The investigating social worker labeled the child a psychopathic case, and the principal of his school de-

scribed him as follows:

He can no longer remain in our school. He has been with us for the past two years. Throughout this time he has been suffering from severe emotional disturbances. He cannot meet the requirements of the curriculum or obey the regulations of the school. He responds to every gesture or word, even if it was not meant for him, with curses, screams and blows. He

cannot sit in one place, but changes his seat constantly or gets up suddenly to walk around the classroom, seeking every opportunity to annoy his classmates. He is especially difficult during recess and is involved in constant fights outside the classroom. When angered, he is dangerous—he will pick up any nearby object and hurl it at his opponent. He climbs trees,

throws stones, steals from the school and from his classmates.

He does exhibit a certain proficiency in some of his studies; he reads fluently and appears to comprehend what he reads. He also enjoys shopwork. But it is impossible to keep a child with such personality problems in a school. We have done so until now only because his mother has pleaded with us time and again to “give him another chance.” His parents have no control over him. He is rarely at home and is influenced mainly by his companions in the street, older boys who use him to help them commit thefts. The influence of the street nullifies our influence; perhaps he would be better off in an institution.

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All the above was true. But how can such a child reform? Shall he turn to his stepfather? Or to his friends of the street? But these two factors—the stepfather and

the street—were the original causes of this unfortunate boy’s downfall! Here is a third, and even more disturbing example:

Two half-brothers, sons of one father, were arraigned for

theft: not just for one theft, but for a whole series of

thefts. The older boy was fifteen and the younger eleven.

When the older boy was three years old the father had

divorced his mother and remarried. In order to avoid

paying alimony the father had taken the child, and for

several years the boy had lived with him and the stepmother. She, too, had a son. Then the father tired of her; he divorced her and married for the third time. The two boys remained with him, and now both of them felt the

rod of the stepmother. The new wife did all in her power

to turn her husband against his sons. She was totally un-

interested in their physical welfare, did not bother to

prepare their meals or to keep their clothing in order. They spent most of their time roaming the streets. When the father returned from work at night, the stepmother would recount all their faults and he would vent his anger by beating them. At the time of the trial the body of the older boy in particular still bore the marks and bruises left by his father’s blows. This boy had spent three years in the fifth grade and had not been able to advance. The

father

beat

him;

the

stepmother

beat

him;

even

the

teacher beat him, in the belief that, since this was the only treatment the child was accustomed to, no other method

would help. The boy was so frightened that when the teacher made a move to punish one of the other children,

he ran for his life. Even in the courtroom, when anyone

The Juvenile Delinquent on Trial

235

moved suddenly, he instinctively raised his arm as though to protect himself against attack.

The two brothers were devoted to each other. It was

not the common father but the common enemy, the step-

mother, who had brought them together. One took care of the other. They walked together, roamed the streets together, played truant from school at the same time, committed petty thefts together. When the beatings be-

came too much for them to bear, they ran away from

home together. Each ran to his own mother. But the cord was not broken. Every moming they met at an appointed spot and embarked upon the day’s adventures. What they

found they took and shared equally: an apple that had

fallen from a fruit peddler’s cart; plums and peaches and other fruits that were beginning to rot and had been

thrown into the garbage; a bunch of radishes that they

managed to pull quietly out of the shopping bag of a housewife returning from her marketing; or stale cakes that the baker distributed among poor children. They examined everything and were interested in everything that came their way. But there was one thing they never

had: money, real money. Then the older brother became

an assistant to a porter; for the younger boy he found a job leading a blind beggar on his route through the streets of the city. Both boys were caught stealing from the beggar’s money box. In court they admitted that they had been taking small sums of money from him for a long time. They used the stolen money to buy cigarettes and candy and to go to the movies. It would be a mistake to assume that it is only at the lowest social level that the broken family creates problems like these. Here, for example, is the story of a boy

who was the son of well-educated and cultured European

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parents. They had separated while they were still in Europe and the boy was raised by his grandfather. The

latter exercised practically no influence on the boy, who eventually spent two years at a reform school. Just before the outbreak of the war, the father immigrated to Palestine and took the child with him. Here they discovered that the mother had also come to Palestine several years earlier. The parents effected a reconciliation and decided to start a new life together, but their effort ended in failure. They separated once more. The boy wandered back and forth between the father and the mother, each of whom tried to give him a decent upbringing. But the child had never known a normal family life and was seriously maladjusted. The parents then decided to send him to a boarding school, in the hope that here he

would find what he needed most: a home and proper supervision. This effort also failed. The teachers saw

only an intractable boy who exerted a detrimental influence upon his schoolmates. They were strict with him and severely limited his freedom of movement. The boy’s unruly spirit rebelled at these restrictions; during the years of wandering from country to country and from home to home he had developed a thirst for adventure that at last drove him into the outside world. He ran away from the school and found a job. But he did not stay in one place for long. A hidden force seemed to pull and push him hither and yon; it was as though he were trying to escape from a net that threatened to strangle him. Finally he shipped as a sailor on a merchant ship and

spent the next few years traveling from port to port in

the company of tough, restless seamen.

While on shore leave one day, he was caught stealing

dance-band records and was brought to trial.

«

The Juvenile Delinquent on Trial

237

There are, to be sure, many experts in other countries who do not recognize the broken family as a major cause of delinquency. Statistical researches in those countries

have revealed that the percentage of youthful lawbreakers

who are brought into court from the background of a

broken home is not appreciably greater than the percentage of such children from normal families. It is also com-

mon knowledge that the average parent will make every effort to keep even a problem child out of the courts in order to protect the reputation of the family. This, however, is not the case when the delinquent is the child of divorced or separated parents, or of parents who are too busy quarreling with one another to pay attention to him. When such a youngster gets into mischief, his chances of staying out of the reach of the law are much slimmer. If, despite this, the statistics indicate that the percentage of juvenile delinquents from these two types of home is

the same, or almost the same, it would indeed seem wise

not to exaggerate the dangers that threaten children of broken homes.

But where does this hold true? Only in those countries

which have a uniformly high level of culture, whose governments take an active interest in the welfare of their youth and where, among other important laws and regulations, education has been made compulsory for all children. Every child in such a country, even if the atmos-

phere of his own home is disturbed, attends a school] where he receives at least a minimal education. This, however, was not the case in Palestine,

were not obligated there could be no children grew up discipline, became

where parents

to send their children to school. Here doubt that the broken home, in which without academic training or social a noxious breeding ground whose at-

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COURTROOM

TRAGEDY

mosphere poisoned the bodies as well as the souls of its young. That was why our leaders in education and youth

work incessantly called upon the Mandate government to enact a compulsory education law.

The State of Israel now has a compulsory education law, but as yet there is no marked improvement to be

noted in this area. There are two basic reasons for this: First, in recognition of the complexity and diversity of backgrounds of the Israel population, the law was limited to the sphere of elementary education and affects only

children up to the age of thirteen, and those between the

ages of fourteen and seventeen who did not complete their elementary schooling. Secondly, the law provides for gradual enforcement, so that its full effects have not as

yet been felt. It is also apparent that much time will yet

have to elapse before all parents realize that it is their duty to send their sons and daughters to school to obtain a thorough education. In addition, there has come into being, since the crea-

tion of the State, a new type of juvenile delinquent: the

youngster whom the conditions of the war years made into an antisocial element within the community. Such delinquents are usually products of the Youth Aliyah movement who for one reason or another were unable to

strike root in Israel’s society and who have become like

disembodied souls wandering in search of redemption. Among them are children whose families were exterminated by the Nazis and who were rescued and brought to Israel by our sh’likim (special envoys sent to the Diaspora to facilitate immigration of refugees to Israel). Some of these youngsters had spent their childhood in

forests and mountain hide-outs with the Partisan under-

ground. Deprived of schooling or any training in social behavior, they had learned from their elders to steal, to

The Juvenile Delinquent on Trial

239

destroy and, if necessary, to ambush and kill the enemy.

It is not easy for them to realize that in normal times such

acts are considered crimes and are punishable by law.

There are among them also boys and girls who during those terrible years were hidden in the homes of Chris-

tians, in churches and in convents, to save them from the

Germans. There is, finally, another category of youngsters, adventurers by nature, who fled from their homes

at the end of the war and were carried along with the

stream of immigrants to Israel; they might hope to join a kibbutz or to enter the army, but they have no training

for productive work nor any preparation for normal life in peacetime. At this point, in order to avoid any misunderstanding, I must emphasize that the vast majority of those who

came to Israel as part of the Youth Aliyah movement

have adjusted admirably to their new life, whether on the land or in the cities, and cannot be distinguished from the native-born Sabras. Yet a small number have remained unassimilated. These could not adjust to the collective

way of life of the kibbutzim; they could not identify with

the ideals that motivated the Youth Aliyah; life in the ma‘abarot and in the immigrant camps remote from the towns offered them nothing to capture their interest. They fled to the cities, to the turbulent life of the

metropolis. Here, however, their hopes met with bitter disappointment, and they developed a sense of frustration and envy of the “oldtimers.” When these youngsters

were still in the Diaspora, they had imagined that in Israel all would be equal, in sorrow as well as in joy, in struggle as in victory: there would be no social ladder, no class differences—in truth, the Kingdom of the Mes-

siah. And now they are overcome by despair, loneliness

and disappointment at the harsh reality; now they realize

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COURTROOM

TRAGEDY

that the Messiah has not yet come. The bitterness that

wells up in their hearts finds its expression in conflicts with the law. The antisocial habits they brought with them from the Diaspora, combined with the weakening of all inner restraints, especially of religious principles, lead them directly unto the road of crime, and into the courts and the prisons. They are charged not only with crimes such as theft, possession of stolen goods, prostitution or other ilegal

acts committed

for material

gain, but also

for

felonies and misdemeanors that offer no visible benefits, that is, wanton destruction of public property, violence for its own sake, knifings and stabbings, and disturbances

in public places undertaken simply in order “to have

fun.” In such offenders one discerns a spirit of spite against society, a result of their own detachment from

the reality of Israel and of the difficulties of adjustment.

A few examples will suffice to indicate the social and psychological backgrounds of these young lawbreakers.

Example A: Reuben, a boy of about seventeen, was indicted for breaking into a Youth Center, and stealing

various sweets—sugar, coffee, chocolate and candies— belonging to the proprietress of the cafeteria, a poor widow who was struggling to support herself and her fatherless children. The accused pleaded guilty and was sentenced to three years’ imprisonment. He appealed the severity of the sentence. The boy already had a rich criminal record. Among the crimes of which he had been accused in the past—fourteen in all—were: theft, pursesnatching, vagrancy, attacking a police officer, escaping from the custody of the law, and vandalism. There was

no form of punishment permissible under the law that

had not, at one time or another, been tried on him: con-

finement in a reform school, release upon promise of

The Juvenile Delinquent on Trial

241

future good conduct, supervision by a probation officer,

fines, imprisonment in various parts of the country. It had all been in vain. This was the boy’s history: He was born in 1937 in Casablanca, Morocco. His family was of the middle class.

His father, a merchant, was extremely pious and insisted upon a traditional education for his sons. In the morning

Reuben attended a French school and in the afternoon he

studied in a Talmud Torah. His parents were divorced

when he was small. Then a stepmother cared for the boy

with great devotion and love, but she died when he was quite young. His own mother refused to assume any re-

sponsibility for him, and when his father took a third

wife the boy’s woes began. This woman was young and

did not care to be bothered with her husband’s children by his first two wives.

Just at this time news of the Youth Aliyah movement reached Casablanca and Reuben saw in it the solution to his problems. He emigrated to Israel by way of France,

as part of the Youth Aliyah; he was only thirteen years

old. He had become a he could not adjust to wanderings he passed hachsharah (training) camp

refugee from his own home, yet any other. In the course of his through many way stations: a camp in France; an immigrants’

in Israel; the Ramat

Hadassah

children’s home;

the home of relatives in a ma‘abarah; aimless wandering, without schooling or supervision, in the company of the other children of the ma‘abarah. General mischief, and then a first theft. He was caught, found guilty and sent to a reform school. Again he was unable to adapt himself to the disciplined

life of a regulated social body. His entire attitude revealed the deep-rooted differences between the cultural

values of the land of his origin and those of Israel. He

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COURTROOM

TRAGEDY

ran away from the school, was apprehended and brought

back,

but soon

escaped

for the

second

time.

He

had

proved unable to accept the yoke of discipline. During

his brief periods of liberty, he had committed further petty crimes and had received additional sentences: imprisonment, probationary supervision, suspended sentences subject to good conduct. The probation officers

tried to help him and worked out various plans for his improvement, but the youngster had already strayed too

far from the path.

In the meantime, his entire family had emigrated from

Morocco and settled in Israel. His father pleaded with

Reuben to live with them and even promised to find work

for him; but the boy considered himself too grown-up and scoffed at all advice. The prison psychiatrist found

him to be an “unstable and antisocial psychopath.” Despite this finding, those concerned with the boy’s case still saw some small hope for his rehabilitation: after all, they reasoned, throughout all his years of wandering he had lived under abnormal conditions and no one of the

adults responsible for him had gotten to know him well.

He had been hurled into society without adequate prepa-

ration. He had come from a broken home and had suf-

fered

severe

emotional

disturbances.

The

street,

the

ma‘abarah, the gangs he had joined—all had exerted negative influences upon him. Perhaps it would be best

to return him to his father’s home. The Court of Appeals decided to suspend the sentence for three months in order

to investigate the possibilities of his adjustment to normal family life. The experiment failed. Reuben could not readjust to his home. He was even embarrassed by having to sit at

the same table with the others, especially his “new” mother and his younger brothers and sisters, and escaped

The Juvenile Delinquent on Trial

243

once again to the street, to the companionship of other homeless youngsters, his friends and comrades. It was

then decided to try placing him in a youth group within

a kibbutz. This plan proved successful beyond all expectations. Within a short time Reuben had adjusted to kibbutz life. He began to participate actively in various youth activities and it became evident that here, among young people who regulated their own lives and carried the burden of responsibility upon their own shoulders, he felt happier than within the bosom of his own family. He worked diligently at his assignments and began to conduct himself as a responsible member of the group. During this time he met and married a kibbutz girl and in the course of time the two became regular, useful members of the kibbutz.

Under these circumstances the Court of Appeals de-

cided that no valid purpose would now be accomplished by any lengthy period of confinement in a penal institu-

tion, and Reuben’s sentence was commuted

to a three-

year term of probationary supervision. The court receives regular bimonthly reports which clearly indicate that

his reform is permanent. One soul in Israel has been saved,

Example B: In sharp contrast, all efforts on behalf of another juvenile criminal, a typical victim of the up-

heavals of World War II, have failed. This delinquent,

a youth of twenty, was sentenced by the District Court to five months’ imprisonment for stealing equipment from an athletic club house. He had already been sentenced on six previous occasions for theft and burglary. Among the loot of this latest crime were a large wall-mirror and

244

COURTROOM

TRAGEDY

a telephone. In the course of his appeal hearing the following details of his brief and tragic life were revealed: The youth was a native of Poland. His father had been a well-known and respected physician. Both his father and mother were active members of the Bund (a nonreligious Socialist organization) and were so emancipated in their views that when the boy was born, he was not circumcised. When the child was six years old the

entire family was deported to the Lodz ghetto. The father

was killed by the Nazis in the ghetto, and the mother hid the boy with a Christian family. When this family later saw that they could no longer care for him, they entrusted him to a monastery, where he lived and studied until he reached the fifth grade of elementary school. After the end of the war his mother married a nonJew and went to live in one of the Scandinavian coun-

tries. The boy, who had in the meantime come under the

influence of the Agudath Israel movement (an organization devoted to the principles of orthodox Judaism), refused to accompany his mother and instead, in 1949, emi-

grated to Israel by way of France with the Youth Aliyah movement. In Israel he became a student at a Yeshivah and lived in a dormitory supervised by the Mizrahi (religious Zionist) movement. Notice the extremes of this child’s education: on the one hand, a Polish Christian family and the austere atmosphere of a monastery; on the other hand, the influence of Agudath Israel youth counselors and daily life in a Mizrahi environment. Atheism and negation of Jewish traditions carried to the extent of refusing to circumcise a son, and against this, a Yeshivah education and immersion in religious studies. The boy gave evidence of sincere interest in his new environment. His conduct was beyond reproach. But he faced a severe crisis when the other boys, his roommates

The Juvenile Delinquent on Trial

245

in the dormitory, discovered the terrible secret that had oppressed him all his life—he was uncircumcised. Chil-

dren, as we know, can be cruel. They whispered behind

his back, looked upon him with scorn, and considered him an intruder. Their attitude hurt and depressed the lad; he broke all ties with his schoolmates, withdrew into himself and began to exhibit signs of rebelliousness and antagonism. Some time later he entered a leftist kibbutz,

where new leaders indoctrinated him in the spirit of

their ideology and gave him a purely secular education. But now he no longer took any interest in his studies. He developed symptoms of depression and of a hatred of society in general, the Marxist Left as well as the Ortho-

dox Right. At this time he also began to commit crimes,

petty ones at first and then more serious felonies; he was convicted and sent to prison. Upon his release from jail he found no door open to him. He could not return to the kibbutz; he had mastered

no skills. Seeing no other way out, he began to lodge in cheap hotels where he found friends of a dubious kind, young vagrants like himself, in whose company he became involved in a life of crime. Further efforts were made by social workers and probation officers to find him a job as a sports counselor, but he seemed unable to adapt to any form of social restraint and was soon sent to prison again. Psychiatric examinations revealed that the youth was neurotic and suffered from various fears and complexes. His crimes, in the opinion of the experts, had a symbolic significance and were intended to compensate him for all that he had been denied in his childhood and all that he still lacked today. In addition, his social development had been marked by serious complications due to the traumatic

experiences of his past: the horrors of the war, the loss

246

COURTROOM

TRAGEDY

of his father, and the separation from his mother. His

early education had been neither continuous nor stable; the stages through which he had passed had been diverse and contradictory. These contradictions finally caused his complete divorcement from reality. He was not linked spiritually to any human being or to any ideal, and he was entirely detached from the everyday life of Israel.

His physical condition had also been impaired by the

sufferings and hardships he had undergone. One last attempt was made to employ psychotherapeutic treatment: he was placed in an institution for vocational train-

ing. But this attempt, too, failed to show any positive

results, and the young delinquent was eventually released without further plans for his future. I learned later that an effort was being made to arrange a meeting with his mother for the purpose of his rejoining her in her new home. The results of this plan are not known, as the meeting with his mother has not yet taken

place. But no matter what the outcome, we see in this boy one victim of the war whom Israel was not able to rehabilitate. Even more difficult and far more complicated is the problem of the disturbed, delinquent girl. Example C: A girl of nineteen was indicted on a charge

of attempted homicide. She pleaded guilty and was sen-

tenced to prison for two years. The background of the crime was a quarrel between a procurer and one of his

“wards.” The accused had entered a café and in the course of a conversation with the victim—the man who

lived off her earnings as a prostitute—she had tried to attack him with a beer bottle. Policemen called to the

scene took both participants in the brawl into custedy;

e

247 The Juvenile Delinquent on Trial while they were in the police car on the way to the station the girl drew a dagger from the bosom of her dress and stabbed the victim.

This was not the first crime committed by the defend-

ant. She had

already been convicted

in the past for

assault, for creating noisy disturbances in public places, for attacking a police officer, for possessing stolen prop-

erty, and for prostitution. She had been warned repeat-

edly, had been fined and placed on supervised probation.

But she had not reformed. In court she appeared without a lawyer and presented the following arguments in her own defense: I am only nineteen years old, but I have already suffered as much as a woman of eighty. I have a mother and a child who isa year and a half old. I am not married. The man who gave me the dagger is also the father of my child and I love him; but he is married and his wife refuses to give him a divorce. The man IJ stabbed made me work as a prostitute, took all my money and then threw me out like a dog. I am unable to support myself. When I stabbed him I was nervous and drunk. I beg for mercy—I am only nineteen.

This was her background: She was born in Iraq, a

child of the lowest social class. There the family lived in dire poverty and want. The eighty-year-old father, a

member of the Kurdish community, worked as a porter in the marketplaces of the neighboring villages. Ten chil-

dren had been born to him, but of these eight had died

in early childhood from disease and malnutrition. Only

two girls, one of them the defendant, survived. News of

the State of Israel reached them through Zionist representatives who were disseminating information in the Diaspora, and in 1950 they emigrated to Israel with no hesitations or misgivings of any kind: they had nothing

248

COURTROOM

TRAGEDY

to lose. Upon their arrival here they were taken to a

ma‘abarah, and from the first they were a burden upon the community. Relations between the parents had never been good; in Israel they became worse. The father refused to work. Indeed, because of his advanced age he would have found it difficult to find employment of any kind. The sixty-year-old mother went to work as a domes-

tic. The father spent most of his time drinking; he ob-

tained the money

by begging.

The

girls received

no

education or supervision. No one bothered to give them

any moral guidance.

The accused—let us call her Rosa—had

never at-

tended a school and, although she had grown and blos-

somed like a lovely wildflower, knew nothing of social

behavior, felt no inner restraints or discipline. When she was fourteen years old she and her mother went to live in the city; here she became friendly with a young man who lived in the neighborhood. He persuaded her to move into his apartment; she saw no harm in this. Her own home was cold, she felt lonely and orphaned, and this young man offered her shelter as well as some human

warmth. He bought her dresses and jewelry, treated her

with kindness and even took her to the movies frequently. For the first time in her life she came to know the friendship of another human being. He also promised to make her his wife; he did not tell her that he was already married. For an entire year she lived in a blissful fool’s paradise. But when she was fifteen, and about to give birth

to a child, she learned that her friend was a married man

who was leading a double life. She left him and, under the influence of other friends whom she had met in the

meantime, became a prostitute, At times, when this life

of wandering through the streets in the winter nights gecame too unbearable,

she would

return to the house

of her friend. At this time she also gave birth to a son.

The Juvenile Delinquent on Trial

249

Her old mother undertook to care for the child. There was no hope of her marrying the father of her child because the young man’s wife absolutely refused to give him a divorce. Rosa again began to roam the streets

under the “guidance” of the man she later stabbed, who

“protected” her and supplied her with customers. She

made several attempts to extricate herself, but her spir-

itual strength failed her, and the men pursued her. Once

she even ran away from a hospital, where she was being treated, because her “customers” were impatient and the procurer gave her no rest. He exploited her shamelessly and pitilessly, giving her only a minute portion of her “earnings.” Finally she demanded that he give her back her money. When he refused she attacked him, goaded by despair and want. At this time she was again

living with her friend, the father of her child, who helped

her and supported the infant, but there was no hope that he would ever make her his lawful wife.

The Court of Appeals that heard the case tried to help

the girl to rehabilitate herself, but in vain. Whenever she was temporarily released from prison and placed under the supervision of a parole officer, to see whether she was ready to adjust to a life of lawful employment, she would immediately rush back to her former associates and in the late hours of the night could be seen roaming the

streets, hovering about the dark corners of the city and chasing after prospective “customers.” Coming to Israel had not meant redemption for this unfortunate young

woman.

Example D: This is the story of one who came from the farthest end of the Jewish dispersion, from Cochin in India. This delinquent, a youth not quite twenty years old, was indicted on charges of theft. fraud and extorting

250

COURTROOM

TRAGEDY

money under false pretenses. All the incidents of the crime revolved around the writing of a number of fraudulent checks, The accused had been living as a guest in the home of one of his acquaintances, in a Moshava far up in the north of the country. The family had extended

to him all the famed courtesies of eastern hospitality, but he had grossly abused this beautiful custom. In his host’s absence he had searched through his belongings, found a checkbook and taken several blank checks, which he made out for sizable amounts. He had then forged the

signature of his host and had used some of the checks

to purchase

expensive clothes and

other luxuries,

and

converted the remaining checks into cash by discounting them in several different stores. When he stood trial he freely admitted his guilt. Investigations by the police revealed that he was already a veteran criminal with a long list of misdeeds on his record. He had been convicted for a number of crimes against the property of

others and had been sentenced to several short prison

terms; each time, after serving his sentence, he returned

to his old habits.

Here is a portion of this young. delinquent’s biography

as related by the probation officer: His father and stepmother had come to Israel from Cochin, India, following in the footsteps of sons and daughters and a many-branched family who had come

earlier. The home atmosphere had been a traditionally

religious one. The boy had lost his mother when he was still an infant, but he rebelled when his father remarried. He could not make peace with the thought that a strange woman would usurp his mother’s place in his father’s

house and heart. While the family was still living in

India, he developed the habit of running away from home periodically to roam along the seacoast and in the

The Juvenile Delinquent on Trial

251

Indian villages, supporting himself by whatever means came to hand. In 1953 he came to Israel with the Youth Aliyah and found work in a textile factory. But, in the absence of a guiding hand or the warmth of a parental home, he was unable to find his place im society.

When he reached the age of eighteen he was drafted

into the army. Now he really began to deviate from the path of respectability. For the first time he was face-to-

face with the bitter truth: his fellow-soldiers received

occasional packages full of delicacies and sweets from home, as well as gifts of money for their personal expenses, while he was like one forgotten and forsaken by all. He belonged to no one and no one belonged to him.

The pay he received from the army did not suflice to cover any small extras. When the holidays came, his comrades would return to their homes to celebrate with their fami-

lies, while he spent his free time in the marketplaces and streets of the big city. He would not visit his father’s home

because of the stepmother.

He began to commit crimes to satisfy his appetites and

desires. He stole valuables—cameras,

watches and the

like—from his fellow-soldiers and sold them at a quarter

of their value. The money he received he spent on prosti-

tutes. He seemed to be trying to buy what is freely given to others—love, the warmth of a home, human compan-

ionship. He was caught once and sentenced to military prison; but after his release he deserted and began to

carry out more and more audacious burglaries and thefts, professionally and methodically. Most of his loot was taken from the homes of friends and acquaintances who, out of the goodness of their hearts, had offered him a night’s lodging or a decent meal. In reference to this unusual phenomenon, the psychiatrist into whose hands

the boy had been entrusted stated that he saw in these

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COURTROOM

TRAGEDY

thefts “‘an attempt to find substitutes for the love he needs,

which he is unable to obtain in sufficient degree in any

other way. This opinion has been re-enforced by my observations of his daily conduct, for he is always trying to make himself agreeable and thereby to win the affection of those around him.” The probation officer’s report also revealed that the boy’s family suffered acute spiritual anguish on his account, was ashamed

of him and saw him as its “black

sheep.” Because of this attitude they kept their distance from him and thereby estranged him even more. For the above-mentioned felonies the youth received

a prison sentence of three years. He appealed the sen-

tence. The Court of Appeals felt that the youngster should be given one more chance—reunion with his family. With this in mind the court summoned one of his brothers and one sister-—quiet, hard-working farmers who had settled in one of the colonies in the Jerusalem Corridor and were already reaping the fruits of their labors—and discussed the boy’s future with them. Both were skeptical of any hopes for their brother’s rehabilitation but agreed to receive him into their homes and to obtain work for him, provided that he seriously promised to mend his ways. The youth gave this assurance with great earnest-

ness in the presence of the judges, and a detailed program

for his reform was worked out. He was then released for a period of three months into the custody of his sister and her husband. But all these efforts ended in total failure. The restlessness that had afflicted the youngster while he was in India, and that had developed even more strongly since he had left the discipline of the Youth Aliyah, gave him no respite now. He could not bear to remain still in one place, working and living a quiet life in a peaceful

——=———_ ss |6«=Ss(

,?

The Juvenile Delinquent on Trial

253

corner remote from the turbulence of the city. One night

he disappeared from his sister’s home, came to the city,

became involved with a girl whom he had met casually

in some place of entertainment, committed further fraudulent acts in order to obtain money to marry the girl, and, when he reappeared in court at the end of his probation period, was able to give no satisfactory explanation for his additional crimes. The Court of Appeals then saw

no alternative but to return him to prison for the comple-

tion of his sentence.

These, then, are some of the types of youthful offenders who are brought into our courts today, after the crea-

tion of the State. We call them “juvenile delinquents” or “criminal youth,” but all too often we forget what it

was that brought them to a life of crime. These boys and

girls are, in truth, undisciplined and rebellious through no fault of their own. They fled from the lands of their

birth but here, in the land in which they sought refuge, in the Jewish homeland, they have struck no roots. Idly they roam the streets of the cities, annoy the residents and the police, break the law, destroy property, steal, commit every form of violent crime, and trample underfoot all accepted moral values. We must note with grave concern the sharp rise in the curve of crimes committed by young men and women since the creation of the State. In 1949 about 1000 juveniles were listed in the police records; in 1957 the curve had jumped, reaching a high of about 4000. We must of course take into consideration the increase of popula-

tion during this decade, but the basic reason for this

startling development is, without a doubt, the emotional

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instability of a considerable segment of the immigrant

youth—youngsters who were not sufficiently prepared for their coming to Israel, who have not been absorbed by

the strange and foreign community into which they were hurled, and who are now helplessly suspended between

two opposing worlds: the world of yesterday and the

world of today.

TWO

Would-Be Suicides The laws of the state—their

enactment,

the science of

interpreting them, the explanation of their hidden meanings, and their execution—are delegated to experts, that is, to legislators, judges and lawyers. Theoretically every citizen should be aware of the existence and content of all laws, the prohibitive as well as the permissive, and

a defense based on ignorance of the law is not admitted

by the courts. In reality, however, the intricacies of the law are rarely clear to the ordinary citizen; his approach to the concepts of legal justice is very different from that of the experts. Thus there are on the statute books a number of “Thou shalt’s” and “Thou shalt not’s” whose very existence comes as a surprise to the “man in the street.” If ever he is arraigned in court for violating one

of these regulations, the conviction grows upon him that

they have no justification in the context of contemporary

life and that he, acting under the special circumstances

that drove him to his act, should not be subject to punishment,

In the category of “Thou shalt not’s” 999 we may well 8

include the crime known to the law as “attempting sui-

cide.” It is covered by one of the shortest and simplest 255

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TRAGEDY

paragraphs in our judicial code, which states that “any-

one who attempts to kill himself shall be considered to

have committed a misdemeanor.” Yet, for a number of

reasons, this legal prohibition of suicide comes as a surprise to many.

The following examples speak for themselves:

A young man was indicted on a charge of attempting suicide. He had driven a nail into the wall of his bathroom, near the ceiling, had fastened one end of a rope to the nail and placed the other around his neck, and

had already kicked away the chair upon which he stood, so that he remained dangling against the wall. His father

walked in just then and rescued him.

The accused made no attempt to deny the charge, but

argued with bitterness: “Who asked him to save me? If

I had succeeded in my attempt, I would by now be rid

of all my troubles; since I failed, not only am I plunged back into the sea of my suffering, but I also have to stand

trial for “committing a crime.’ ” Herein lies the major source of the bewilderment of

this young man and others like him. In most cases the law distinguishes between the actual commission of a crime and a mere attempt to commit it. For example: If Reuben enters Simon’s home and steals something, he is

charged with theft. If Levi is caught with his hands in

Judah’s pocket, but before he has taken anything, he too is arraigned—but not for theft, only for attempted theft. The average man understands the difference between these two categories of crime, recognizing that an unsuccessful or uncompleted attempt should receive a more lenient punishment than the actual commission of a crime.

Would-Be Suicides

257

This general rule, however, does not hold true in the case of suicide. Obviously the law can provide no punishment for the successful suicide. Punishment therefore falls only upon the unsuccessful. And this is what the “criminal” cannot understand. His reasoning goes something like this: ‘I was sick of life. I had no more use for it and I wanted to end it. Had I succeeded, I would

have been beyond the reach of the law. Now, because I failed, the law wants to punish me. Why? Simply because I did not succeed in carrying out an act which, in itself, is not a crime from the point of view of the law. Does that

make sense?”

Here is a second example: A woman was accused of having swallowed an overdose of sleeping pills with the

intention of committing suicide. In court she stubbornly

refused to answer any of the questions put to her; her entire attitude toward the proceedings was one of contemptuous indifference. Finally, when the doctor who had succeeded in reviving her had concluded his testimony and she was asked whether she had anything to say, she answered with a hysterical outburst: ‘““Whose business is it? I did not steal and I did not rob and I did not kill and I did no harm to anyone. | do not want to live any

para

EST

longer. Whose business is it?”

This is precisely what they cannot understand: “Whose business is it?” The crimes are few in which the perpetrator and the victim are one and the same. In an ordinary attemptedmurder case, for example, the court is dealing with a felony that involves at least two people: the would-be murderer and the intended victim. In the course of the trial the court uncovers a complex of interpersonal relationships: acts of provocation, love, jealousy and hate,

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friendship and rivalry, and so on. In the case of an attempted suicide, however, the murderer and his victim

are one person. That person is both accuser and defend-

ant. The motivation of the deed is found in the individ-

ual’s attitude toward himself, within the narrow confines

of the self. Of course there are external circumstances— family problems or social or financial difficulties. But the crime is not directed against those who were responsible for these conditions or who caused the difficulties,

but only against the self. The individual reasons thus:

“Ts there anything in the world over which my rights of

ownership are as clearly established as my own body?

Does anyone have the right to assume the authority for telling me what I may or may not do with my own life?

It is a matter strictly between me and myself. Whose

concern is it?” Thus one man had attempted to commit suicide because he was suffering from a chronic ailment that had made it impossible for him to live a normal life. In court he sobbed like a child: “Why am I on trial? I wanted to kill myself because I am like an empty shell. Living, to

whom am I of any use? Who would be injured by my death? I am no help to my children; for my wife I am

a heavy burden. Why should I go on with this painracked life?” The motif is the same: “Whose business is it?”

But, for most of these “criminals,” the heart of the matter lies not in their protest against being brought to

trial or being punished, but in their failure to understand

the purpose of the law, the concept of “Thou shalt choose life” (Deuteronomy 30.19). This bewilderment is the result of the morbid, diseased point of view of an indi-

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259

vidual who stands upon the threshold of extinction and sees before him only a chaotic, senseless world, a world filled with suffering and pain, a world that is not a fit

| | |

place for man to live and from which it is best to escape

into nothingness as quickly as possible. They never express this attitude in so many words, but it is there—in the dull eyes and the bitter smile that hovers on the lips of those who have chosen death, a

smile that combines mockery and pain, a smile that no

one can face without a sense of confusion and guilt; it is

heard in their broken speech and in their indistinct mumbling; it is felt in their despondent bearing. The

question they ask penetrates to the innermost depths of human existence: “What right have you, the lawmakers,

and

you,

judges,

prosecutors,

policemen—what

right

have you to command us to live? You have brought us

to trial; you have burrowed into our past; you have reopened our wounds; you have laid bare our secrets. Now

you are ready to impose punishment upon us because such and such a paragraph of the law instructs you to do so; and when that is over you will send us back into the world,

helpless

and

hopeless,

to continue

the

endless

struggle. What reason is there for forcing life upon us

when nothing has changed and the same anguish from

which we sought to escape will await us once again?” Theirs is a mute protest, a silent rebellion against the existing order of the world. And the judge who reads the thoughts of these unhappy souls as they stand before him cannot help but feel that it is not they who owe a reckoning to the society in which they live, but rather the guides

and leaders of that society who will some day have to account to them for all the suffering that was their lot. The wheel will turn, and the accused will become the

accusers.

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Here are but a few examples of the many that could be cited:

A young Yemenite girl stood before the court. She had poured gasoline over her dress and had set fire to herself,

but the neighbors had heard her screams and rescued

her. She had undergone many months of painful treatment in a hospital, and when she appeared in court her

face and arms still bore the marks of her ordeal. With

barely concealed animosity toward all around her, she remained stubbornly silent and refused to reveal what had been the motive behind her desperate act. When at last she was asked to promise that she would not repeat

the attempt, she answered quickly and with a strange fire in her eyes, “No, I shall not try to burn myself again.

Next time I shall choose a death from which there is no possibility of rescue.” A very young man was once brought before me on the

charge of attempting suicide. I learned that he was suffering from a dreadful, incurable disease and that he had decided to end his suffering by destroying his body

together with the disease. But he did not succeed. I felt a

profound pity for the youth. Here was someone on the very threshold of life, and before he had tasted of its pleasures he had already cast it away with loathing. He was obviously an educated and intelligent person, and I thought that some words of logic and reason might make him see his error. I spoke about the sanctity of life and

the will to survive that is implanted in all living things.

It was the time of World War II, and I pointed out that all mankind was engaged in a struggle against the forces of destruction and would not surrender. How could the

individual do less?

He listened to me attentively, and for a few minutes I thought that he had come to agree with me. But in the end

Would-Be Suicides

261

he smiled the sarcastic smile of one who feels, to the

very depths of his soul, only contempt for life. A faint

blush spread over his sallow face and he answered bitterly, “You all speak with wonderful ease about the

necessity for continuing the struggle. Everyone speaks in

his own way——-my parents, my doctor, and now you. Don’t you realize that I deliberated for a long time before I did what I did? This was not a momentary aberration. Oi course one must fight for life, but only when there is at least a glimmer of hope that success can be won. Life is holy so long as it is beautiful; once it becomes ugly, it has no value. Your Honor speaks of the war. If mankind had no hope of winning the contest, it too would

rather commit suicide. There is no logic in prolonging

the agony of death. There is no spark of hope that I can win this struggle; and the doctor knows it, although he will not admit it to me openly. The disease is devouring

the marrow of my bones; my body is decaying before my

very eyes. What good is such a life to me?” And then there was an old Jew, a man past ninety. You are awed by the presence of hoary age, silenced and humbled, as though in the presence of eternity; yet you are called upon to pass judgment. Nearly a hundred years this man had lived upon the earth, and at last he decided that life was not worth-while. And now you, who were born when he had already reached the years of maturity, are to judge him and to explain to him that he has erred. Unwillingly you begin to think about the ironies of fate, and you seem to hear an inner echo of the saying of an ancient sage: “Vanity of vanities . . . what profit hath man of all his labors . . .” You feel that you will only be mocking yourself if you attempt to console this old man with the blessings that may await him in the future, or if you try to convince him that it is

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a sin to throw away the years that are still before him.

And so you decide to speak to him in a language that he understands better, in the language of eternal life, of a

world that knows no limits and no end. The old man is a God-fearing Jew and you remind him that, according to the ancient laws of Israel, he is casting away not only this world but also the world to come, for “he who com-

mits suicide has no share in the future world... .” But

the old “criminal” does not agree with you. His gray head trembles and his voice, heavy with the grief of a lonely man, quivers: “No, Your Honor, it is not so. One

who has lived all his days in a hell on earth will surely

find his place prepared in the Garden of Eden of the world to come. I am sated with bitterness. I no longer wish to walk among the living. . . .”

Trials of this nature are usually conducted behind

closed doors, in deference to the living. And because the public cannot hear the confession of the accused, the

defendant rarely hesitates to pour out all his pent-up

bitterness before his judges. Whether out of self-hatred or because of some illogical, inexplicable desire to reopen his own wounds, he is often eager to speak about

the chain of events that brought him to the decision to. cut short the thread of his life. After a long, exhausting recital he sometimes feels relieved of the burden that so long had oppressed him and, in the expression of his

tired eyes, one may see that he is grateful for the oppor-

tunity that was given him, perhaps for the first time in

his life, to speak freely before another man.

Tragic indeed are the tales of the men and women

who seek death, either out of a courage

so great that

human speech has no words to express it, or out of the

od te we

TREE A PIO

Would-Be Suicides

263

weakness of their hearts that makes it seem too difficult to continue facing life. Sociologists have singled out a number of factors that contribute to the phenomenon of suicide. Among these

are the influence of climate upon the inhabitants of cer-

tain countries, the incidence of insanity in some societies,

alcoholism, estrangement from the moral principles of religion, or the sudden spread of education and culture in an underdeveloped society. Perhaps these factors operate for our people as well. But from the stories that are heard in our courts there emerges something additional, something unique, to be found only among Jewish suicides. All the calamities and afflictions that have befallen

the Jewish people as a whole, and all the suffering and pain of the Jew as an individual, here find their most poignant expression. The stories complement each other

and blend together into a tragic picture of the experiences

of the various Jewish communities of the Diaspora. Some day they may well serve as the source for a study of the years of devastation and upheaval through which we have lived.

Here is but one example of many:

A young man aitempted to commit suicide by hanging. The rope, which was made up of several neckties knotted together, broke under the weight of his body, and he was saved by the timely interference of a friend who prevented him from making a second attempt. Later he was brought to trial. He appeared in court well dressed; his external appearance indicated clearly that his crime was

not to be explained by poverty. But his face, which was

the color of parchment shriveled with age, and the deep wrinkles that furrowed his brow and surrounded his tired eyes, were evidence that he was suffering from a fearful mental anguish. Yes, he had tried to kill himself, and

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TRAGEDY

how could he have done otherwise? He was still a fairly

young man, but he had gone through a great deal in the short span of his life. Now his misfortunes had overwhelmed him, and he could go on no longer.

In Vienna, in the pre-Hitler era, he had occupied a

prominent position in the society of semi-assimilated Jewish businessmen. He had been happy then: he was well off financially; he had friends among the liberal Christians and considered himself a patriotic Austrian; he knew nothing—or rather, wanted to know nothing—

about Palestine or the plight of the Jewish people. And

then Hitler rose to power, his army occupied Austria and

all the forces of darkness that had been latent in the

masses erupted suddenly. The Jews of Austria were the first victims of mob violence. All at once this man dis-

covered that there was no place for him in the country he had always thought of as his fatherland and among

the people with whom he had cast his lot. He sensed that

even greater danger was approaching and, just one year before the outbreak of the war, he managed to escape to France together with a small group of friends. He was able to salvage only a small part of his property, but this meant little to him for he had succeeded in saving

what was closest to him: his wife and his only son.

At that time France had become a haven of refuge for the victims of the Nazi terror that was already beginning: to cast its shadow over all of Central Europe. Hundreds and thousands of refugees, Jews and Christians, were gathered in Paris and in the larger provincial cities of France. Some hoped to strike root in this land of refuge, while others were waiting to emigrate to various parts of the British Empire or to America. Then a new wind began to blow through the Jewish refugee camps. The thought was spreading: “If such a thing could happen

VW ould-Be Suicides

265

in democratic Austria, who will guarantee that we will

find permanent security in France, or in Britain, or in the United States? If today we have found a temporary

haven in France, where shall we go when the evil strikes here, too, and we must leave again? Has the time not

come to throw away the wanderer’s staff once and for all?” There was a reawakening. Time was short. The leaders of opinion among the refugees began to call public meetings, to discuss, to explain, and to seek a solution. It was then that the defendant first heard about Palestine. That is to say, he had already heard and read about Palestine

in his parents’ house and in brief news dispatches in the daily press; but all that had been accidental and without apparent relation to himself. For the first time he was now hearing about Palestine as a possible refuge for his wife and son. He decided to join a group who were determined to make their way, over land and sea, to the ancient homeland. For most of the others, too, “Zion” had been only a word without living meaning, but suddenly it had become their ultimate goal, their basic prin-

ciple, their anchor in the stormy sea. For the time being

he left his wife and son behind in France, but only because he had been assured there would be no difficulty in bringing them to join him later. There were many trials and hardships to be overcome

before his feet stood upon the soil of the Jand. But once

there he adjusted quickly to his new home. His letters to his wife were enthusiastic; soon she too would be in a country where she would feel that she belonged and was

not just a temporary guest. Here, among brothers of a

common destiny, they would begin life anew and no one would ever again dare to uproot them. Here, in the home-

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TRAGEDY

land, they would live, they would build, they would work. ... But, in the meantime, events were taking place in Europe that were destined to destroy his world and to shatter his dreams. In September 1939, World War II broke out. Com-

merce and travel on the seas were halted. He made frantic efforts to find a way for his wife and child to come to Palestine, via Spain and North Africa, or via Italy and

Greece. In vain. Gigantic powers were wrestling in Europe; what did two individuals matter? In June 1940, Paris was taken; all of France was overrun by the armies of the enemy. The exchange of letters between this man and his wife came to an end. He tried desperately to re-

sume contact through the Red Cross, but his family could

not be located. He trembled for them, but still continued to hope. The months rolled on: January, February, March 1941. News from occupied France began to trickle through. Jews were being taken from the streets by day and from their beds by night and sent in cattle cars to the East—to slave labor camps, or to their death. The Nazis spared neither men nor women, neither the old nor the young. And he, the accused, lived in a nightmare world. He could no longer carry on with his daily routine; he knew only one goal: revenge. In June and July 1941, Jewish Palestine was mobilizing. Men and women, old and young, were volunteering to join the army. He did not hesitate. And in the back of his mind there was always the unspoken hope: who knows? Perhaps somehow he would find a way to save his wife and child? He put on the uniform. Soon he was given the opportunity to meet the enemy face-to-face,

but he could not reach

the dear ones he

sought with all the passion of his being. He was severely

Would-Be Suicides

267

wounded in one of the battles of the North African campaign and returned to Palestine after several months of fighting, broken in body and soul. His nerves were

strained to the utmost; his once-powerful body had wasted away; his world was empty. And from France came ever more frightful news. He no longer believed his kin were alive. No spark of hope remained; he could not go on. Life had become a burden and he wanted to be free of it. Who would now lose by his death?

The lives of hundreds and thousands of our people are

summed up in the story of this “criminal.” In the annals of what other nation on this earth shall we find such a tragic background for an attempted suicide?

From the confessions of those accused of attempting to take their own lives it becomes clear that the decision to commit suicide is not made suddenly, but is the result of thoughts that have gnawed at the heart and destroyed the peace of the soul for a long time. This fact is attested to not only by the trouble the individual takes to settle his affairs before putting an end to his life, nor by his efforts to leave behind a clear message so that no one else will be blamed for his death, but also by the detailed preparations for the actual execution of the deed—which are usually made carefully and methodically—and by the form of death which he chooses. For (and this may seem paradoxical) not every death appeals to him who has despaired of life; he usually selects with great care

the manner in which he will put an end to his life. The

higher the cultural level of the individual, the more carefully he chooses an “easy” death. There is almost no manner of snuffing out the breath of life which some despairing soul has not attempted, from the painful death

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COURTROOM

TRAGEDY

by fire to that sophisticated “kiss of death,” the injection of poison into the blood stream. Most of the cases of attempted suicide that reach the courts, however,

involve

jumping from a tall building, stabbing oneself with a knife or a dagger, swallowing an overdose of sleeping pills, drowning, hanging or slashing the arteries at the wrists. Sometimes, out of the desperate desire to cut off all possibility of escape, the would-be suicide employs several methods simultaneously. In one case, for example, the accused

had

taken

poison,

slashed

his wrists

and jumped from the roof of his house—and yet had somehow survived and been brought to trial. In explanation of his “triple” suicide, he declared that he had already once tried to hang himself and had failed; and

he therefore decided to try a combination which he was sure would work.

It is interesting to note that women, especially those

of Oriental or peasant background, usually choose a form of death that does not entail either bloodshed or disfiguring the external limbs or organs of the body. Most cases of female suicides involve attempted drowning, hanging or swallowing of poison.

And children learn from their elders. Children and

adolescents who are arraigned in court on the charge of having attempted to commit suicide constitute a special and, from a sociological point of view, most complicated chapter in the contemporary history of our people. The decadent literature which our youngsters devour indiscriminately, the movies they are permitted to see without

supervision or selectivity, the complicated and confused

life which the children of this generation observe all around them exert a harmful and destructive influence upon their hearts and minds. In imitation, they too point pistols at their temples; they too hang themselves from

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269

the lintels of doors and windows; they too throw themselves from the roofs of tall buildings. When these attempts fail and the children stand trial, the judge is faced with one of the most perplexing problems of the human soul. Two worlds oppose each other: the world of the child and the world of the adult,

the world of emotions and the world of analytical reason, and it seems as if there is no common language between

them. You ask: what has this fledgling seen that has made

him despair of life even before he has tasted of it? He answers and explains; you listen to the testimony of his father or his mother or his older brother, and they too give answers and explanations. And then you recognize an ancient problem that has become more and more acute in our generation: the conflict between fathers and sons. He, the child, stands there and explains what it was that brought him to his desperate deed. From his

point of view, his reason was a compelling one, for his

entire small world was entangled in some problem for which he could find no solution; he had lost all hope. He sees everything in the mirror of his own world and cannot accept the advice of parents or guardians who are trying to instruct him in the ways of the adult world. But how insignificant are his reasons in the eyes of the father or mother or older brother! They see the world through their own experience, and belittle, at times even ridicule, the problems of the child, thereby unwittingly depressing a spirit which is striving to cast off the fetters of immaturity. They do not notice that the “‘little one” is beginning to sprout wings, that one must begin to give consideration to his wishes in matters that concern him

directly, especially when it is a question of his own

future. Often parents as well as children overstep the bounds of their authority. Somehow it must be pos-

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sible to find a common language between these two worlds. But is the courtroom the proper place for dis-

covering this language? Is it not rather to be sought in the home, in schools and other educational institutions?

In almost every instance where young boys or girls were brought before me on the charge of having attempted to kill themselves, I found the “criminals” to be, not

only alert and intelligent, but even mature beyond their

years and often exceptionally bright; in every case the

act grew out of a background of conflict between the

youngsters and their parents. Some examples follow. A girl of seventeen was on trial for attempting suicide. She was a healthy-looking girl, mature in mind and body, who seemed more like a young woman of twenty than an adolescent. Her parents were wealthy people who had come from Central Europe. Ever since she was a

child the girl had shown a remarkable capacity for help-

ing anyone who was sick or suffering, and had always displayed unusual sympathy and patience for any living creature that was in pain. As she grew older she became more and more convinced that she should dedicate her life “to helping those who cannot help themselves,” as she herself

expressed

it. The

horrors

of the war,

the

stories she heard and read about the injured and the

maimed, seemed to indicate the path she should follow,

and she decided to become a nurse. But her parents wanted her to marry a successful businessman who had already expressed his interest in the girl, and would not give their consent to her plan. They pleaded with her by day and by night to give up this idea and to marry the

man they had chosen for her; when she remained ada-

mant, they scolded and even insulted her. Life became a burden to the girl. She saw the stumbling blocks that

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271

obstructed her path and realized that her dream was slipping away from her, that a meaningless, routine life awaited her. In despair she decided to end the struggle. She took a room in a downtown hotel and during the night swallowed a quantity of sleeping pills and powders. An employee of the hotel rescued her, and she was arrested. In court she expressed regret for her action and for the grief she had caused her parents; but as she told her story it was evident that the goal she had chosen for herself filled her entire being, and that without this goal life appeared gray and meaningless to her. The parents, for their part, were ready to forgive her for the pain and sorrow she had caused them, and it was not very difficult to extract from them the. promise that they would no longer stand in her way or force her into a premature marriage; but even as they spoke it was obvious that they had given in only because they had no choice. It was a case of unconditional surrender. An even more pathetic incident was revealed in the following case: A fifteen-year-old girl was in court, accused of having attempted to commit suicide. The story

she told was simple, but its implied moral should be

pondered by all parents who try to ignore their children’s inclinations and attempt to force their own wishes upon them.

The girl came of an orthodox family. She had com-

pleted her studies in one of the religious elementary schools, but was anxious to continue her education. She dreamed of preparing for a teaching career. But her father Jaughed at her and her ambitions, and expressed his opinion that she was educated enough already—the learning she had acquired so far would be sufficient to

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enable her to cook a good dinner and to do the family

wash. That was all his mother and his wife had learned,

and he could see no reason why his daughter needed more. He was a stubborn man, easily angered. The girl’s pleading was in vain. His opinion remained unchanged:

he would not let her waste her time on “foolishness.”

For days she walked about like a shadow. She neither ate nor drank. At night she could not sleep. The father refused to notice the change that had come over her; he

was sure that sooner or later she would “learn.” But the

girl did not learn. One night, at midnight, after hours of

sleepless tossing, she arose and drank a considerable

quantity of a lye before. Tears flowed the courtroom. Jewish law, but

solution which she had prepared the day

from her eyes as she told her story in She knew that suicide is forbidden by life seemed to offer her nothing for the

future; she did not want to remain ignorant. That was

why she had done what she had done. She was sorry for it now, but added quickly, with a spark of hope in her

eyes, “Perhaps someone could talk to my father and

persuade him to let me continue going to school.” It was not difficult to convince the father now that he should let his daughter pursue her education; he had become willing to consider her point of view. Again, however, the change was brought about not through understanding;

it was a case of surrendering to the inevitable.

In another case a boy of fourteen stood before the court. Unlike the others, he was a slow learner who had difficulty in keeping up with his schoolwork. On the other hand, he had a natural inclination and talent for

manual work and was especially interested in cars—in driving them, fixing them, and understanding their mech-

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anism. The father, however, wanted his son to have at least a basic education before he started to go to work

and insisted that the boy complete the regular course of

studies. There were constant arguments. The boy knew no peace either at ‘home or at school. When he brought home a low grade, his father punished him; in the classroom he was the butt of the teacher’s and the other pupils’ jokes. His small world was filled with bitterness about everything and resentment against everyone. At the end of the school term he received a very poor

report card. Afraid to show it to his father, he tore it into shreds, and then climbed up on the roof and jumped

down. Fortunately, he fell into the little garden that surrounded the house and was caught by the shrubbery. He was not hurt much, but soon afterwards he was brought

into court. There the father admitted that he had been unusually strict with the boy and expressed the thought

that it might after all be better to permit him to learn a trade, rather than force the child to live in constant fear

because he could not do well in school. It seemed then that, not the boy, but the father was on trial. It was also clear that the entire incident, which narrowly missed

ending in tragedy, could have been avoided had the

father not relied so exclusively upon his own judgment

but had discussed the boy’s future with a teacher, with-

out casting such dread upon the child.

I cannot refrain at this point from introducing two

stories that are told in the Talmud, stories whose moral

should be remembered by all parents and educators. According to Jewish law the usual ceremonies of mourning are not observed for a suicide. But the Talmud relates (Semachot 2:4):

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It happened once that the son of Gornos of Ludd ran away from school, and when his father threatened to pull his ear [this was apparently an accepted form of punishment for children, or else an idiom meaning “to chastise”], the boy was so afraid of his father that he committed suicide. . . . When they asked Rabbi Tarphon [how to apply the law in this case] he said: Nothing is to be denied him. [In other words, all the rites were to be observed as though his death had not

been self-inflicted.]

The

Talmud

goes

A boy father killed [what

in B’nei B’rak once broke a threatened to pull his ear and himself by jumping into a pit. to do] and he said: Nothing

(Semachot 2:5-6) :

on

to

cite

a

second

example

jar on the Sabbath; his he was so afraid that he They asked Rabbi Akiba is to be denied him.

[The Talmud adds:] From this our sages deduced the

following: One should not threaten a child, but rather

chastise him immediately or else remain silent... .

I have already said that, because these proceedings are held behind closed doors, the defendant is often willing to speak frankly about the true motives for his deed.

This rule applies to children as well. It would seem that

the decision to undertake so daring an action as suicide exhausts the youngster’s will and, in the case of failure,

leaves him defenseless against the adult world; even the presence of his parents in the judge’s chamber cannot deter him from revealing the entire truth. There are, however, a few exceptional cases where the child invents a story, not in order to arouse more sympathy for himself, but specifically in order to disguise the truth, either

Would-Be Suicides

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because he is still afraid of his parents or because he is ashamed and seeks refuge in a lie.

I remember one incident at the beginning of the war,

when a girl of seventeen stood trial before me for having

attempted to take her own life. When she was questioned

she began to speak about the horrors of war and the

frightening future that faced mankind. What she was

saying, in essence, was this: “Here

I walk and dance,

carefree and happy, and suddenly a bomb may fall and injure me, tearing off my arm or my leg, or even both,

and make me a permanent cripple. Never again will I

run or dance, never again will I be carefree and happy. I would rather die than face the terrors of the bombs.” Thus spoke the girl, thinking she had convinced the adults. But the falsehood was transparent. The girl seemed too immature to have developed such philosophical ideas about the results of war, and too pretty to spend her time in morbid thoughts about becoming a cripple.

And so indeed it was. Further conversation with her par-

ents convinced me that there was a romantic factor involved: she had become involved with a much older man who wanted to marry her, but the parents would not give their consent. The mother told the story sadly, tears in her eyes. Yet there was a gleam of pride as she ended: “Our daughter is a good child; we have no complaints against her at all. She could have run away with him, as other

girls do who care only about themselves and don’t even

stop to consider their parents. She did this terrible thing only because she wanted to spare us from shame and sorrow. She is our only blessing. . . .” Although this girl did not seem especially intelligent, I had the feeling that the mere attempt at carrying out such an extreme and desperate deed, as well as the words of the mother and the entire solemn procedure in the

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court, had exerted an influence for the better. She left the

courtroom clinging to her father and mother, perhaps convinced at last that they were concerned only for her welfare and happiness. In the introduction to this chapter I referred to the

fact that many laymen fail to understand why legislators chose to outlaw suicide, and by what right magistrates and judges feel justified in imposing punishment upon

those who attempt to violate this prohibition. Actually it must be admitted that not only laymen, but legislators and interpreters of the law as well as judges have disagreed, in different countries and at different times, as to

the practical effectiveness and the moral justification of

this law. We must first of all take note of the fact that the laws of several European countries and of a number of states in the United States of America do not recognize suicide as constituting a crime. Consequently attempting suicide

is not regarded as an offense. This attitude also prevailed

in our country as long as we followed Ottoman law, which was based primarily upon the Napoleonic Code. In 1936-7, however, a new criminal code, based upon English law, took its place. Like the parallel provisions of English law, the new code regarded the attempt to commit suicide as a criminal offense. The development of this legal concept in England is of great interest from several points of view, but especially in its similarity to

traditional Jewish laws regarding suicide.

The concept that, for the sake of the individual as well as for the protection of society, it is desirable to limit man’s sovereignty over his own body to the extent of denying him the “right’”’ to end his life when he chooses,

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appears to have taken root in England at a very early

period. However, it was clear from the beginning that simply outlawing suicide had no practical value, since

one who chose to end his life was not likely to be concerned about obeying the letter of the law; nor could he,

having committed the crime, be summoned to justice by the normal processes of the judicial system. It was therefore necessary to devise some procedure that would tend

to develop an internal restraint in the mind of man to

prevent him from taking his life. Thus there evolved the

idea that inflicting indignities upon the mortal remains of the suicide would serve as a natural, though not a logical, warning to the living: anyone concerned about his honor as a man would thereby be held back from attempting to end his life. Out of this concept apparently grew

the custom, whose precise origin remains unknown, of conducting a barbaric funeral ceremony for the suicide:

a wooden peg was driven through his heart and his body was interred, not in a cemetery, but at a highway crossing, without prayer or any vestige of religious rites. Not honor, but ignominy accompanied the suicide to his eternal rest.

This custom, which brought shame upon the living

members of the family rather than punishment upon the suicide himself, was abolished in 1823. In its stead, the

new law provided that the interment of the body of a suicide be conducted quietly, either in a cemetery or in some other place—but not on the highway—during the hours between nine in the evening and midnight, without religious ceremony. A subsequent revision permitted religious rites to be held if requested by the family.

This, then, was the “punishment” inflicted upon the body of the dead. But not everyone who in despair chooses to end his life is concerned about what will be

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done with his physical remains. For such individuals a more effective deterrent against suicide had to be found.

For this purpose the Common Law considered suicide as a felony, which like all felonies entailed a total forfeiture of the suicide’s estate. This threat served as an effective restraint for an individual who loved his family and was

concerned about their future well-being. Experience, how-

ever, proved that this too was a dubious punishment since,

in the last analysis, it affected only those whom the

“criminal” left behind; in 1870 the law of forfeiture of the estates of felons, including suicides, was abolished.

Public opinion had never been totally in agreement with the severity of these punishments and, in many instances, judges, in an attempt to vindicate the honor of

the dead, ruled that the suicide had suffered from a men-

tal derangement when he committed the deed. It was enough for the family to bring evidence that the deceased

had been beset by difficulties, or had been depressed

before his death, to persuade the court that he had not

been of sound mind and could therefore not be held

criminally responsible for his action. How far judges

were willing to go in this direction is demonstrated by their ruling, in several instances, that the mere fact that a man took his life without a rational motive was suffcient proof of his mental incapacity. Clearly, in view of this attitude, there was no room for inflicting penalties upon the dead. There was, however, a different difficulty inherent in this judgment: it meant, for the living, the taint of insanity upon the family name, a stigma which could have injurious effects upon their lives in the future. Suicide continues, however, to be considered a crime

in English law to this day. This concept of the Common Law is in several respects similar to traditional Jewish

altitudes.

VW ould-Be Suicides

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Our sages could not reconcile themselves to the thought that in the Torah—which is called “the Law of Life”— there seems to be no specific injunction against suicide; they therefore attempted to discover, by means of homiletic exposition, at the very least an allusion to such a

prohibition. This allusion they found im the verse: ‘‘And

surely your blood of your lives will I require .. .” (Genesis

9.5), which,

according to this interpretation,

refers to one who takes his own life. A later scholar saw

evidence for the view that the Torah considered suicide a sin in the verse: “If any one sin, and commit a trespass...” (Leviticus 5.21), taking the Hebrew word ma‘al (trespass) to imply the initials of the phrase M‘Abed ‘Atzmo Le-da‘at (to commit suicide). This prohibition, of course, applied only to voluntary

suicide, not to the act of giving up one’s life for the sake

of Heaven (martyrdom). To die for the sanctification of the Name of God (Kiddush Hashem) was always considered the extreme act of piety, although, according to one of the sages, even this praiseworthy self-sacrifice entails a certain moral penalty. He ascribes the following

saying to David, King of Israel: “This has been trans-

mitted to me from the Court of Law presided over by Samuel of Ramah, that no halakhic [legal] matter may be quoted in the name of one who surrenders himself to

death for words of the Torah” (Baba Kamma, 61a). Jewish tradition sought to instill in the heart of the

Jew the love of life and the concept of the sanctity of life. Like the lawmakers of England, our sages recognized the necessity for establishing some form of punishment for suicides, as a warning and an exhortation. But since it is impossible to judge the dead by the laws of man, they too came to the conclusion that it was necessary to resort to moral pressure, again expressed in the denial of the

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rites of honor which Jews normally extend to the dead.

The Jewish laws of burial, too, are different for suicides

than for others. Thus it is the custom not to bury suicides

in the cemetery plots of their families or among others whose death was ordained by Providence, but in a special

section set aside for them, usually near the outer limits

of the graveyard.

In one important respect, however, Jewish law and tra-

dition differ from its English counterpart: from the begin-

ning it was careful to limit the effects of the punishment

to the suicide himself, and not to infringe upon the dignity of the surviving members of his family. Thereby

Jewish law established a significant and humane principle: “It is permissible to form rows* and to pronounce

the benedictions of mourning, for that is the honor due

to the mourners. This is the rule: whatever belongs to the honor of the bereaved is done; those rites that do not pertain to the honor of the living are not carried out publicly” (Semachot 2:3). It is almost superfluous to add that all the above-mentioned penalties apply, according to Jewish law, only to

suicides committed deliberately and with a clear mind;

even the Hebrew phrase for suicide, hitabdut lo-da‘at

(the word da‘at means “mind” or “reason’’), testifies to this attitude.

In this connection I should like to point out one further parallel between the contemporary Anglo-Saxon atti-

tude and Jewish tradition regarding the “criminal” aspect

of the deed. I have already referred to the fact that English public opinion had long been opposed to the penalties imposed by the law, especially since these were extremely

* This refers to the custom that those who escort the dead to the ceme-

tery after the interment form two rows between which the mourners pass and receive the condolences of those present.

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281

harsh and generally affected those connected by ties of

family and blood kinship to the deceased, rather than the

“criminal” himself. The natural outcome of this feeling was the tendency which developed among judges to see in

every case of suicide indications of insanity, thus invali-

dating the criminal charges against the dead. Jewish law had also arrived at this conclusion, but by a different

method and on the basis of a more logical legal principle,

namely, by a stricter definition of the concept of “‘deliber-

ate” suicide. Thus the Talmud asks:

Who is a suicide? Not he who climbs up to the top of a tree or ascends to the roof and falls down and dies; but only he

who says: “See, I am going to climb up the tree [or ascend the roof] and will throw myself down so that I may die.” lf afterwards it is seen that he did ascend and then fell down and died, he is considered to have committed suicide. . . . [If,

however, ] he is found hanging from a tree and strangled, or pierced by a sword, he is considered as one who did not kill himself intentionally (Semachot 2:2-3).

In conclusion I must repeat my conviction that, while help must be found for the lost soul that in its anguish has chosen this desperate path, such help is not to be found among the dry paragraphs of the statute books or within the walls of the courtroom.

MAKING

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ONE

The Nature of the Will Anyone familiar with matters of law and jurisprudence, even though he is not an expert on the subject, realizes

that the primary tool of the professionals—the judges

and they and ten,

the lawyers—as well as a major part of the material deal with, is paper: paper in the form of documents certificates written in longhand, printed or typewritor combining two or even all three of these methods.

The different types of document bear different names.

There are bills of sale, bills of exchange, promissory

notes,

deeds

and

leases,

mortgages,

cancellations

and

annulments, receipts, checks and so forth—depending

upon the form and content of the document. The legal

validity of these papers, and their application in practice,

are determined in accordance with special laws. For ex-

ample: a promissory note or a bank check is governed

by the law of bills of exchange; a bill of lading, by maritime law, commercial law and sometimes also by the transportation laws; an arbitration contract or the decision of an arbitrator, by the laws of arbitration. A real estate deed is subject to the laws of land ownership, and a contract for the sale of movable or immovable property

falls under the jurisdiction of the law of contracts and 285

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MAKING

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sales. Some documents are subject to several different

laws simultaneously. In short: all legal documents are governed by certain statutes and regulations that define and determine their form, their content and the language they must employ in order to be legally binding.

The experts’ approach to these different kinds of paper

is a purely professional and legalistic one, and his attitude toward them, like the attitude of most craftsmen

toward the tools of their craft, is generally cold and im-

personal. But there is one type of legal document that in essence and principle differs from all others, that de-

mands a chapter to itself and an approach all its own. This is the document known to everyone as “the will.”

I must confess that whenever I chance to hold a will

in my hand, something inside me trembles. Often a man’s

highest aspirations, his noblest dreams are embodied in his will; always you are faced with the solemn realization that a man has lived and is no more, and all that remains

of his being, of his individuality, are these sheets of

paper. And you—who were a stranger to him, who never crossed his life’s path or knew the desires of his heart— are called upon to decide whether the words of the dead shall be upheld and carried out, or disregarded and nullified.

The very name of this document—“will”—expresses

an obligation. A man has expressed his will and asks of his relatives or close friends that they obey his wishes

concerning what shall be done to him and to his belongings when he is powerless to act for himself. And if from

a purely legal point of view this is not an especially diffcult matter, for here as in everything else there are clearly defined laws and well-ordered regulations, one cannot,

e

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287

from a human point of view, ignore the special and unique character and purpose of the will. A man may

practice deceit all his life; he may steal or rob or cheat;

when signing a promissory note he may already have

decided inwardly that he will never repay the debt; while

executing a business agreement he may be planning not to live up to its terms; while signing a lease he may already be thinking of breaking it. But when a man sits

down to compose his will, he must be honest with himself

and with the world. Now he is drawing up a kind of final report: how he stands in relation to himself and in relation to his Creator; the will is the ultimate expression, the summing-up of all his life, materially and spiritually. There is no truth greater than that revealed in a will.

This is the inner truth of a man, without cover and without disguise. Here he writes what he has to write, without

ulterior motive and without hypocrisy. Here he is not trying to insinuate himself into anyone’s favor, nor to win friendship or esteem. Nor is he anticipating any material benefit for himself, for he knows that when this

document is opened and its contents revealed, he will already be on the other side of the curtain, and the

vanities of this world will no longer move him. In this sense, then, the will partakes of the nature of a confession,

the last and greatest confession made by man to himself,

unembellished

and unadorned. He is seeking no one’s

favor and is afraid of no one. Therefore he does not hesi-

tate to write what he feels. Love, friendship, joy, anger, hatred—-all these are given free expression in the will. You may have been acquainted with a man for many years and believed that you knew him. Then one day you read his will, and suddenly a new man stands before you —an unusual man, surrounded with beauty and magic—

and you wonder: was this the man I knew? Even lifelong

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frauds and hypocrites are, in their wills, often revealed

in a new light. And perhaps this hidden radiance was

their true essence?

Some wills win the heart with their utter simplicity, with their gentle sadness and the spirit of grace that is

revealed in them. One of my friends, a lawyer by pro-

fession, told me of an experience he had in drawing up a will that he said he would never forget. One day [he began] one of my clients, a wealthy Jerusalem businessman, asked me to go to the home of his mother, who was on her deathbed, because she wished to draw up a will. I knew that the mother was not a woman of means, and won-

dered why she felt the need for a will. But my client, who was anxious to honor his mother’s wish, insisted upon my coming. So I collected the tools of my trade and accompanied him to his mother’s house, in the old quarter of Jerusalem, where she had lived all her life. Her face was wrinkled,

and her hands were thin and veined. She lay on the bed without moving, and it was apparent that she was rapidly approaching the end. But her mind was still lucid. And, though she spoke slowly and with difficulty, her words were clear and intelligible. Her first words were: “Shraibt main ts’vueh” (Write my will).

I wrote down exactly what she dictated and as [ listened to

each of her bequests, a tremor of awe overcame me.

“Dem Zaidn’s becher zol men gebn Chayele’s man, un der Bobbe’s laichter Chayelen” (Grandfather’s wine cup is to be given to Chayele’s husband, and Grandmother’s candlesticks to Chayele). I had known the family personally and had frequently visited the home. Every Friday night and on the eve of every holiday the old woman would proudly take out from her closet two large, heavy, silver candlesticks, hand-engraved with an

intricate design of buds and flowers, would set them on the table and joyfully and festively pronounce the blessing over

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289

the candles. Then, before the men returned from the synagogue, she would take out from its hiding place an ancient Kiddush cup. These were not simply silver candlesticks and a silver cup, but der Bobbe’s laichter un dem Zaidn’s becher (Grandmother’s

candlesticks

and

Grandfather’s

wine

cup),

and thus they were known to every member of the family. Perhaps her grandfather and grandmother, too, had received them as a heritage from their parents and grandparents, and they

from their forefathers,

for generations;

she, this old

woman lying on her deathbed, wanted to perpetuate the chain. Her other sons and daughters were no longer completely observant of their religion, but Chayele and her husband had remained loyal to the tradition. The old woman, trembling for the future of these precious heirlooms, wanted to make sure that they would fall into the hands of those who would continue to use them reverently for their sacred functions. Then came the apportionment of her other belongings and valuables: sheets, pillowcases, pillows, quilts and other bed linen, kitchen utensils, jewelry and clothing. “My good silk dress is to be used to make a curtain for the Ark or a coverlet for a Torah scroll.” Then she divided her rings, necklaces and other ornaments. At last she reached the books. “My husband’s Shas [set of the Talmud] is to be given to the synagogue where we prayed, so that it may be used for study. My daily prayer book and my Ts’ena Ur’ena [a Yiddish translation and commentary on the Pentateuch, used especially by women] are to be kept as a gift from me to Chayele’s daughter, and the Machzor (holiday prayer book) given to Chayele’s son on his Bar Mitzvah as a present from his grandmother.” All the property together amounted to not more than eighty or ninety liras in value, but each of these bequests was treasured. Sons and daughters, grandsons and granddaughters, sons-in-law and daughters-in-law—none was absent when the

legacies were distributed. Believe me [concluded my friend],

the writing of that will meant far more to me than drawing up a contract for sums a hundred times greater in value.

This was indeed a document of profound human value, for it summed up—in outline only, but clearly

290 and

MAKING unmistakably

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nonetheless—the

BREAKING way

of

WILLS life,

the

values and the dearest hopes of a simple Jewish woman, one of the true daughters of Zion. A will is not a dead legal paper. It is not an embalmed

or petrified thing. It speaks; it reveals. It has the form

and the content of life. It uncovers the most secret en-

tanglements of a man’s soul. Sometimes there is in it something of family history, an expression of pride of descent, an enumeration of the scholars whose blood

runs in the veins of the testator and his children. Some-

times it includes good advice and counsel for proper conduct. The terms of endearment with which the testator addresses his relatives and friends, and the expressions of appreciation which he extends to them, are indicative of his attitude toward his family and toward the world

around him.

How moving, for example, are the words of a certain

testator—an old Oriental Jew—who wrote his will with

his own hands and in it bequeathed to his young wife, “for her possession and sole ownership” (these were his

own words), all his property, his house and all it contained, clothing, money, tools and jewelry. But, at the end, he added this warning: “If, however, my wife does not deal righteously with me and fails to observe the customs and traditions of our people, I reserve to myself the right to void this will and not to leave her anything after my death... .” At the end of another will—a long and complicated document, with many individual bequests of money, commercial rights, and so forth, to the wife and children of the deceased—I found the following paragraph:

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291

May the Almighty, blessed be His Name, grant you long and peaceful life, and may it be His will that you live together in love and friendship, and guard the honor of your mother, that dearest of women, and may you always strive to deal justly with Jews and with Gentiles and with all creatures that God has created in this world.

As J said above, a man may be known by his will, his life’s last expression. I am almost tempted to state that

the will is the poetry of the law. No other legal document discloses so much simplicity and integrity, and even

purity of heart, as does a will.

In the following pages I shall deal with wills, inheritances and legacies as they are seen in the mirror of contemporary life, in legal lore and in folklore, and in

the courts.

TWO

Categories of Wills In this age of standardization and mechanization, dedi-

cated at the same time to the many are convinced that they their own medical or judicial the experts, at least so long as

“do-it-yourself” concept, can adequately attend to needs without recourse to the problem is not of the

utmost urgency. They buy their own patent medicines,

pills and powders for a variety of ills and complaints; in stationery stores they purchase standardized forms for leases, contracts, agreements and other legal papers. Thus, during the real-estate boom, it was possible to obtain, for a nominal charge, forms for deeds of ownership or leases that were complete and required only the insertion of a few pertinent details regarding the property involved. In this respect, however, the will is radically different. It is nearly always drawn up by a lawyer or by the testator himself. In all my years of experience in the

courts I have never yet come across a “prefabricated”

will, designed to suit the needs of the “average” man. For,

varied as are the lives of men, so do their wills vary. Just

as no two men are alike in their way of life, their habits, their thoughts and aspirations, so are no two wills exactly 292

Categories of Wills

293

the same—in language, in form, or in the specific be-

quests they contain. Of course, certain technical phrases

and expressions needed to insure the legal validity of the document, usually occurring at the beginning or at the end, are substantially the same in all wills drawn up by lawyers. Generally speaking, wills and testaments may be divided into three broad categories according to their content: First, there is the will whose basie content is ethical advice, guidance for conduct in life and instructions in the paths of righteousness; secondly, there are wills whose only function is to regulate the distribution of the testator’s material

possessions;

and

thirdly,

there

are

wills that combine some aspects of both the other types. In practice, the will that speaks only of material goods is rare, for every testator who is concerned not only with the bodily wants of his descendants and those who were close to him in his lifetime, but also with their spiritual and moral needs, intersperses here and there among his last words a few phrases of instruction and some good advice concerning manners and morals. J cite an example of each of these three categories.

Lo

A paragraph taken from the will of the great scholar, Rabbi Moshe Sofer, known also as the “Hatam Sofer,” will illustrate the first type: . . . You, my sons and daughters, my sons-in-law and daughters-in-law, my grandchildren and great-grandchildren, take heed so that you may live. Let not your hearts be led astray, to commit iniquities such as are committed by the evildoers who, because of our many sins, have turned away from the Lord and His Law. Do not dwell near them and do not associate with them in any manner whatever. Touch not the works of Moses Mendelssohn, so that your feet be not

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made to stumble. Study the Holy Scriptures with the commentaries of our sages, and teach your sons the Torah with the commentary of the Ramban, of blessed memory. .. . Let your daughters read the Yiddish books based on the stories of our sages.

..

. Do

not,

under

any

circumstances,

attend

the

theaters; I forbid and proscribe them entirely. . . . If the Almighty grants you good fortune, do not lift your heads in pride or conceit against any righteous man. Remember that we are the children of Abraham, Isaac and Jacob, the disciples of our teacher Moses, the servants of King David. . .. The King whom we await will appear in the guise of a poor man riding on a donkey . . . why, then, shall we practice pride and self-esteem? . .. Be alert and diligent in the study of the Law. Do all in your power for the spread of learning among the people. ... Guard against changing your names or adopting the language or the attire of the Gentiles. ... And do not be dismayed that I do not bequeath to you any riches for He who is the Father of all orphans will have mercy upon you. ... Do not make of the Law a crown nor a spade... and do not say: “The times have changed.” For we have an ancient Father, blessed be His Name,

who has not changed

and who will not change. ... The order of worship in the Houses of Prayer shall remain always as it has been to this day, and no man shall change either the structure of the buildings or of the prayers, ... My daughters and daughters-inlaw, be careful not to reveal your flesh by shortening your garments in the current fashion, and keep yourselves far from friendship with wicked women. . .. My dear sons and my beloved students, do not neglect the schools and be diligent in daily study. ... And may it be Thy will, who hast. given us the Torah, that the well may not run dry nor the fruit tree wither, amen and amen... .

This is a will of the first category. The literature of

such ethical wills is extensive and varied. These documents contain many paragraphs and sub-paragraphs; generally they do not touch upon any worldly or mate-

rial matters, but dwell in the realm of the spiritual only.

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295

The following example of the second category of wills

was drawn up by a Jew from Switzerland who had prospered in Palestine. The original was written in German:

\

I..., the husband of ..., born on...in..., hereby

appoint my wife as my sole heir, and declare that all my property shall belong to her after my death.

This is the document in its entirety, simple and laconic.

Such a will is obviously not subject to interpretation, explication or argument as to the true meaning and

intent of the testator, for the words are clear, self-explana-

tory and easily understood by every layman.

The following are excerpts from a will of the third

category. Written in Berlin, but in Hebrew, this document is a remarkable specimen of its kind. Especially pertinent to our subject are these instructions to the testator’s children: First of all, beware and have mercy upon your souls; heed my words and leave off all sinful deeds; repent truly with all your hearts and believe with perfect faith that the Creator, blessed be His Name, is the only Guide and the Maker of all things; He is One, and He is our God, and only to Him may we pray, for He knows all the deeds and thoughts of men and will requite those who disobey His will; believe also in the coming of the Messiah and in the resurrection of the dead in the world to come. Now I request that if anyone of you does not, God forbid, return unto Him to walk in His ways, and if he intentionally neglects any of the commandments of the Torah, I beg of you to listen to me—let him not pray for me nor say the Kaddish for the peace of my soul nor lead the congregation in prayer on my behalf; for what succor would there be in this? On the contrary ...a word to the wise is sufficient.

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Now I command you, from my deathbed, to carry out my wishes exactly as I have written them, for I am of sound mind, and to fulfill my requests as speedily as possible. . . . First of all, the sum of 350 Mark as well as all my furniture and jewelry and all the gold and silver and the real estate which I own in the cities of and belong to my wife, with the exception of one pair of silver candlesticks and one silver snufl-box which belong to my son. As for the remainder, which should come to approximately 1500 Mark, this shall be given to charity, to fulfill the verse: “And righteousness shall go before him. . . .” I also request that nothing be written on my headstone except my name and the dates of birth and death. If anything else remain of my estate, I ask that it be given to the fund for needy brides. . . .

In short, the two main categories of wills consist of ethical wills dealing with instructions in moral conduct,

and secular wills dealing with the material possessions

of the testator. And, although the documents of these two categories differ from each other in content, in style,

and in the spirit that is felt between the lines, the moti-

vating force that causes them to be written is basically the same: the desire of the person to transmit to those near to him and to those who will come after him all that he

himself has acquired as the result of his life’s efforts,

whether this legacy consist of spiritual values or tangible material possessions. Moreover, there are certain basic concepts which often seem to become implanted in a man’s heart when he senses that he will soon be leaving

this world: the idea of forgiveness; the aspiration to

carry out acts of charity and loving kindness, and to assure peace and love among the members of his family who remain behind him; the desire to repay all debts, so

that his name will not be recalled with ignominy after

his death, and other similar hopes and wishes—these run

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like a silken thread through most wills of both categories. They illustrate how deeply the concepts of the Torah and

of his religious heritage have become imbedded in the

heart of the Jew, so that their influence is felt even when

he is dealing with secular, material affairs.

But what are the typical characteristics of the will in general, and of the different categories in particular? What is the nature of the hidden forces that compel a man to sit down and compose his last testament, and just what does a man—especially a Jew—write in his will? These questions will be dealt with in the following pages.

THREE

Religious Stipulations in Wills It was the custom of our forefathers, in writing their wills, to admonish their descendants, both male and female, to be upright in their dealings with their fellow men and to remain loyal to their God, their people and to the Law. The sacred values of Judaism and its spiritual treasures were constantly before their eyes; they lived in

them and for them; when death approached they were

overcome by the fear that the chain of tradition might be broken; therefore they instructed and commanded their children and their disciples to guard and cherish the values bequeathed to them. This concern and these exhortations found their expression in the form of good advice and noble ethical commandments. But our fathers did not find it necessary to couple instructions for virtuous conduct and moral principles with the promise of earthly

rewards and material benefits. They inculcated in their

children the thought that they must not be ‘‘like servants who serve their master for the sake of reward,” but rather upheld the motto that “a good deed is its own reward.” It never occurred to them to attempt to buy their children’s hearts in order to assure their loyalty to Judaism. In the wills of most of the sages of Israel there was little, 298

Religious Stipulations in Wills if any, reference to material belongings,

299 so that, natu-

rally, there was no occasion for making terrestrial benefits conditional upon the observance of religious precepts. Rabbi Moses ben Nahman (Ramban), or Nahmanides, who died in Palestine about 1270, for example, left these ethical instructions for his son: Hear, my son, the instruction of your father, and forsake not the teaching of your mother. . .. Accustom yourself always to speak calmly to all men and at all times, for thereby you will avoid anger. Let the quality of humility, which is the best of all qualities, rule over your heart, as it is written: Humility leads to the fear of the Lord. Thus because of humility you will attain to the fear of God, for you will always consider whence you came and whither you are going; and you will remember that you are likened unto a worm or an insect even

in your lifetime, and how much more so after death! You will

then be aware before whom you must one day stand in judgment and render your account—before the King of Glory... . When you think on this, you will fear your Creator and will guard yourself against sin; and with these precepts you will learn to be content with your lot. And if you conduct yourself with modesty and humility before all men, and fear Him and refrain from sin, the spirit of the Shekhinah [the presence of God] and the rays of God’s glory will rest upon you, and you will merit eternal life.

The vanities and pleasures of this world are here not even mentioned. Rabbi Jacob Ba‘al Haturim wrote similarly in his will: Always be diligent in the love of God, blessed be His Name, and in the sanctification of the Name and the fear of the Name, with your soul, with your body and with all your possessions, even unto death by martyrdom. Think not of the pain of extinction, but consider rather the pleasures of the life to come after death. ... Be diligent to obey the commandments of charity, deeds of loving kindness and hospitality.

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When you engage in charitable deeds be careful to act for the sake of the glory of God, and not for your own glory and fame. Be diligent also in the study of the Torah for its own sake, so that you may know the commandments and will be able to guard yourself against transgressions . . . for because of our transgressions some part of the Torah may be lost to us each day.

Here again there is no reference to any connection

between spiritual and material possessions. The words of the Torah are independent of the concerns of this

world,

and no reward

is promised

following in the paths of their fathers.

to the children for

But that was in the past. It is different in this later age, when sons are often skeptics and waverers, rejecting tra-

dition and ignorant of their heritage. Anxiety for the spir-

itual treasures of their people, and concern for their preservation and integrity, have not yet been erased from

the hearts and minds of parents loyal to Jewish tradition,

but these parents know that their own steadfast faith has

become weakened in the hearts of their children, if it has

not actually been replaced by contempt and mockery. Admonitions to children to remain true to their heritage therefore no longer stand by themselves, but are cloaked

and wrapped in modern forms, in the guise of rewards and incentives. Parents, in other words, promise payment

for their children’s good conduct.

One Jerusalem Jew, for example, distributed his property among his sons and daughters, grandsons and granddaughters, apportioning an appropriate legacy to each. But the old man’s heart was not completely at ease. He left all of his property to his descendants. Let them partake of it and enjoy it. Was it not for this that he had labored all his life, and was it not for this that he sat down to compose his last will and testament when he felt that

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his end was near? But man does not live by bread alone. There is the Law, and there is Judaism, and there is the

legacy of the fathers. How then shall a Jew plant in the hearts of his children the desire to walk in the paths that

were marked by generations of sages and scholars, and

sanctified by the blood of martyrs and saints?

The old man decided to affix the following paragraph to his will: If, God

forbid,

one of the beneficiaries under

this will

should leave the religion of his fathers, or openly profane

the Sabbath,

or marry a woman

as a penny’s

worth;

of another

faith, whether

during my lifetime or after my death, the guilt shall fall upon the sinner, and he shall not receive from my estate so much instead,

his portion

shall be

divided

equally among his children and descendants, providing that they are observant of their faith. If he is childless or if, Heaven forbid, his descendants shall also have strayed from the path of righteousness, then his portion shall be divided equally among his brothers and sisters. This condition shall apply equally to any female beneficiaries of this will. An American Jew wrote his will in a similar vein: I bequeath to my son . .. in addition to the above-mentioned bequests, the sum of five thousand dollars from the residue of my estate, with the stipulation that he marry a woman of the orthodox Jewish faith either before my death or within fifteen months thereof. If he does not fulfill this condition, the bequest shall be null and void. I also leave to my granddaughter . . . the sum of two thousand dollars, with the explicit condition that she marry a Jewish man before my death or within fifteen months thereof.

Similar bequests, with the same stipulation, were in-

cluded in the will in reference to other grandchildren. It is interesting to note that while the father required the

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son to marry an orthodox Jewish girl, he was satisfied if the grandchildren married Jewish mates without specifying their degree of piety. Obviously the old man was hesitant to impose too heavy a burden upon his grandsons

and granddaughters. . . .

On the surface it would seem that no reasonable objec-

tions could be raised against wills of this kind. After all, if the children or grandchildren of a testator wish to enjoy the benefits of a legacy that was set aside for them, let them live up to his conditions, and his blessing will be upon them. If not, let them go their own way, but with-

out attempting to invalidate the last wishes of their father

or grandfather. But apparently the beneficiaries often

think otherwise. Herewith we touch upon one of the

saddest chapters in the recent history of the Jewish people in the Diaspora: the spread of assimilation and intermarriage. This chapter, in its most tragic implications, is perhaps most clearly written in the records of lawsuits that have been argued before non-Jewish courts. Here is a poignant example, one of many:

During the nineteenth century there lived in England

a prominent Jewish family, the Jacobs. The paterfamilias, Bethel Jacobs, and his wife Esther were pious Jews, loyal to their faith and devoted to the principles of Judaism. They had five sons and five daughters: Rosa,

Laura,

Joseph,

Henry,

Charles,

Benjamin,

and

Julius

Jacobs, Miriam Halford, Henrietta D’Avigdor and Frances Schluss. In 1874, when the mother,

Esther Jacobs,

had reached a ripe old age, she wrote a will in which she left considerable sums—of her own property as well as of what she had inherited from her husband and from her

mother, who had also come of a wealthy family—in trust

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funds for the benefit of her sons and daughters. But she included this provision in her will: And I hereby direct and declare that if either during my lifetime or after my decease any son or daughter of mine shall marry a person who does not profess the Jewish religion, or shall marry a person not born a Jew or Jewess although converted to Judaism and professing the Jewish religion, or shall forsake the Jewish religion and adopt the Christian or any other religion, then and in every such case and as from the occurrence of such event such son or daughter respectively shall absolutely forfeit and lose all share and participation in and right or power over the principal and income of all and every the trust premises ... and... his or her share or shares ... shall . . . accrue and go over to the others or other of them my said sons and daughters hereinbefore named who shall be living at the time of such forfeiture, and if more than one, in equal shares, their respective executors, administrators, and assigns, absolutely.*

In 1876, when Esther Jacobs was already on her death-

bed, she added a codicil to her will. In this she related

with bitterness that she had learned within the past year that one of her sons, Henry, had been married according to the Anglican rite and that a second son, Charles, had

become

converted to Christianity

and had

married

a

Christian wife. Because of this, she added, their share in

the trust fund had been nullified. For added emphasis,

and so as to leave no room for doubt in the future, she

specifically voided any claims they might make under

the will, and transferred their shares to the other bene-

ficiaries, that is, to her five daughters and her remaining

three sons, to be divided equally. The old mother, how-

ever, did not know how much further the poison of assimi-

lation had already penetrated into the body of her family. * Hodgson v. Halford

(1879)

ii ch. D. 959.

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The testatrix died within two years after the drawing up of her will and only three months after the addition of the codicil. After her death it became known that a

third

son,

Julius,

had

also

married

a Christian

wife

while his mother was still living, but without her knowl-

edge. Shortly after the mother’s death a daughter, Laura,

renounced her faith and married a certain Michael Hodgson, who was a member of the Anglican Church. Thus, of the many-branched Anglo-Jewish family there now remained only six: two sons (Joseph and Benjamin)

and four daughters (Rosa, Miriam, Henrietta and Fran-

ces). Now the question of the inheritance arose. According to the terms of the will, the three sons and the daughter who had left the faith of their fathers were to surrender all claims against the estate. But they thought otherwise. Several years after the death of Esther Jacobs,

Laura Hodgson brought suit, on behalf of herself and

her brother Julius, against the executors of the estate and

the beneficiaries under the will. She demanded that the court declare this provision of her mother’s will null and void, so that her claim, as well as her brother’s, would

remain valid despite the fact that they had acted in direct

contradiction to their mother’s wishes. The principal argument presented in court by the plaintiff was that the mother’s sole purpose had been to force her, the daughter, to retain the Jewish faith, thereby depriving her of her free choice in matters of conscience. It was for this reason only that she had made the bequest

a conditional one. Such a condition was in reality nothing

but an intimidation, threatening the daughter with punishment should she dare to deviate from the path chosen for her by her mother. This clause was therefore in the nature of a denial of freedom of conscience and a limitation upon free choice, and thus inconsistent with the gen-

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eral welfare. Just as courts in the past had decided that when a legacy was left to a woman under the condition

that she divorce her husband, or to a child under the condition that he have no contact with his mother, such a

condition was invalid and the bequest remained in effect,

so the court here must decide that a testator may not be

permitted to prevent a beneficiary from making a free

choice in the matter of selecting a mate of another faith. These were the arguments and claims presented by the

daughter who had violated her mother’s explicit wishes. The English court, however,

did not agree with the

plaintiff. The judge decided that every person has the right to leave his property to those of his descendants

who remain adherents of his religion and do not become converted to another faith, whether this be Protestant Christianity, Roman Catholicism, Mohammedanism or any other. The other cases cited by the plaintiff were not analogous to her own. In the former, the conditions set by the testator were unquestionably incompatible with

the general welfare and with public morality, for the

separation of husband and wife, as well as the estrangement of a child from his mother were clearly in opposition to the basic principles of human society. This, however, was not true of matters of faith, which depend solely upon the conscience of the individual. Here each person must choose to obey the dictates of his own conscience,

even if this means the renunciation of a legacy.

As a result of this lawsuit, then, the son and daughter who had become converted to Christianity clearly lost their claim to the inheritance. These events took place in the year 1879, In 1940, however, another English court took an entirely different position in a similar case. I will return to that case later, for the subject of the relations

between parents and children, and the efforts made by

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Jewish parents to prevent their children from intermar-

riage and apostasy, constitute a significant chapter in the

history of our era, even in the Holy Land.

Shortly after the end of World War I, a shattering

event occurred in Palestine: a young Jewish girl, the daughter of a long-established and respected Jerusalem family, ran away from home and married a non-Jew. The

entire city was shaken. It must be remembered that at the

time mixed marriages were not yet common, so that this

incident aroused the entire Jewish community, which then numbered less than a hundred thousand. The members of the girl’s immediate family, prominent merchants and scholars in the Jerusalem community,

were, of course,

the most deeply affected. For a Jong time they avoided all contact with the community and, when walking through the streets, would lower their heads in shame and keep their eyes fixed to the ground. Days passed, years went by, and the wound slowly healed, at least, so it seemed on the surface. Neighbors stopped speaking about the painful event; people on the street no longer whispered or pointed their fingers when they saw the former Jewess, now the wife of a British officer, walking by. But had her family really forgotten, or—to put it more accurately—had they made peace with

the thought of her apostasy? Later events proved that

they had not forgiven her. Some years ago the uncle of the young woman, her father’s brother, died. When his will was probated in court, a subdued echo of that tragic moment of the past reverberated in the courtroom. The uncle was a wealthy

man, but died childless. In his will he remembered not only various charitable institutions, but also all his rela-

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tives: brothers, sisters, brothers-in-law and sisters-in-l aw,

nephews, nieces and cousins. No one was forgotten. She too, his brother’s daughter, was mentioned in the will.

But the mention was not in the form of a blessi ng; rather,

it was an expression of his undying abhorrence: to her

the deceased left, of all his large estate, the sum of one shilling, or fifty p’rutot in Israel currency. Thus this man, devoted to his faith and to his family ’s good name, expressed the feeling of resentment that had filled his heart against the flesh of his flesh who had brought disgrace upon him and upon the entire family. This was the only vengeance that was in his power to exercise.

This same note of concern for the unity of the family,

the integrity of faith and tradition, is heard in different tones and revealed in different forms in many other wills that are brought before the courts. Here, for example, is

the will of a wealthy Jew, a native of one of the Near

Eastern countries, who had spent most of his life traveling from one seaport to another but in his later years had settled in Palestine, together with his family. When his will came before me for probate, I read there, among other things, the following: In my many years of travel in foreign lands I guarded above all else that precious heritage entrusted to me by my forefathers: my Jewish faith and tradition. And now, my dear sons and daughters, I ask you to cherish this heritage. Fear the Lord and love His Torah. Remain true to the people

of Israel. Do not, under any circumstances whatev er, inter-

marry with men or women who are not of our people. Avoid quarrels; do your work diligently and honestly. Uphold your good name with pious deeds, and my blessings, the blessings of a loving father, will go with you on all your paths. May the Almighty grant you good fortune and guide you in all

your ways and undertakings,

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Do wills such as those cited above show evidence of

their writers’ dislike of non-Jews? I do not believe so. These were simple men, devoted to their traditions and

sincere in their beliefs; as Jews they hoped that their

children, too, would remain loyal to their people and to their religion. There is nothing unusual in this desire, nor are such feelings found only among Jews. The courts, however,

do not always honor these wishes

of the de-

ceased. I return now to the above-mentioned decision of an English court in 1940. Solomon Blaiberg, an English Jew, wrote a will in the year 1902 in which he bequeathed to his children and grandchildren the income from a trust fund which he had established. In the course of the years he added six different codicils to the will, one of which stated: And I do hereby declare that should any child or grandchild of mine at any time whether before or after my decease marry any person not of the Jewish faith such child or grandchild shall forfeit and be deprived of any interest or share under my said will or codicil thereto and my said will and any codicil thereto shall be construed as if such child or grandchild had been dead at the time of his or her contracting any such marriage as above-mentioned.*

Solomon Blaiberg died in 1909. In 1924 one of his granddaughters was married in Paris to a non-Jew. The marriage was annulled after a short time; in 1926 she remarried. Her second husband, a French marquis, was

also a Christian. This marriage ended in divorce in 1931.

During this entire time—that is, from the day of her first marriage—she had received no income from the trust fund, for it was assumed that her claim had been voided

* Blaiberg, Blaiberg and Another v, De and Another (1940) i All E.R, 632.

Andia

Yrarrzaval

(Marquise)

Religious Stipulations in Wills 309 automatically because of her marriage . In 1939, however, she sued in court for her share of the income of the trust fund established by her Jewish grandfather. The case was heard before a British court . The woman argued that the stipulation in her gran dfather’s will regarding a marriage with a person “not of the Jewish faith” was not sufficiently clear and shou ld therefore be declared ineffective. The court acce pted her argument and decided that she retained her right to share in the legacy. It is interesting to take note of the argu ments cited by the judge in support of his decision, This was his reasoning: First, it is an accepted principle of law that any condition in a will which limits or qualifie s a beneficiary’s rights must be expressed in simple and unmistakable language, so that there can be no doub t as to its intent and meaning. The phrase forbidding marriage with a person who is “not of the Jewish fait h” is neither clear nor self-explanatory. Why? Because a person’s faith or lack of it is a matter for his own conscien ce only. In this

instance the court would have to investigate whether the

plaintiff's first husband was or was not of the Jewish faith. Such an investigation is outside the prop er jurisdiction of a court. The legacy therefore remained in effect and the qualifying condition was declared inval id.

In short, Solomon Blaiberg had not succeede d in expressing his thoughts to the satisfaction of the court and thus his

last effort, an attempt to preserve the trad upheld by generations by means of a bribe offe itions red to his desc

endants, came to nought. Nor is the case of Solomon Blaiberg and his granddaughter an isolated incident. A similar, but even more intricate and complex lawsuit involved the will of Barnett Samuel, a member of one of England’ s most distin-

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guished Jewish families. Barnett Samuel’s business interests were large and diversified, and he enjoyed close and cordial relations with many members of English Christian society. But he himself never disguised his

Jewishness. On the contrary, he attempted to transmit his

religious convictions, or at least his adherence to the traditions of Israel, to his only daughter Edna. This desire was expressed most clearly in his will. In a document

typical of the wills of English Jews of Barnett Samuel’s

class, he left considerable sums of money to his daughter, who was unmarried at the time, and also provided that she, as well as her future husband and any children she might bear, would receive the income of a large trust fund which he established with the residue of his estate. But one of the paragraphs of the will included the following condition: Despite anything written im this will, if my daughter should, at any time after my death, enter into marriage with a person who is not of Jewish parentage and of the Jewish faith, then her rights, as well as the rights of her husband and their children

and descendants, shall be void

and this will shall be

executed as though my daughter had died on her wedding day.

Barnett Samuel died in 1925. Only twenty-one months after his death the daughter had already ignored her father’s last wish and married an Englishman, Harold Clayton, who was neither Jewish nor of Jewish descent. For several years it was assumed that this marriage in-

voked the conditions of the above-cited paragraph of the

will, and that the daughter, her husband and their children had forfeited all claims to the estate of the deceased. But in February 1940, a few months after the outbreak of World War II, Edna Clayton and her husband decided

Religious Stipulations in Wills 311 to try their luck and attempt to have this condition declared invalid. They brought suit in court and deman ded

that their right to share in the income of the trust fund

be recognized. This case was destined to assume extraordinary significance, both from a Jewish and from a legal point of

view, because in its last stage it reached the highest rung

of the English legal system, the House of Lords. The decision rendered by the House of Lords will be discussed later. Let us first follow the case through the lower courts. It should be noted that Barnett Samuel, who was apparently a cautious and precise man, did not content him-

self with the demand that his daughter marry a person

of the Jewish faith, but insisted on an additional condition: that the parents of his future son-in-law also be Jewish. This precision, in the long run, was the cause of his failure. The court before which the case was initially tried decided that the terms of this twofold condition were not sufficiently clear. The phrase “of Jewish parentage” did not—so said the judge—indicate whether the deceased meant the parents’ ethnic background or their religious beliefs, that is, whether the parents had to be of Jewish descent or whether it were enough if they were of the

Jewish faith, even if their ancestors had been non-Je ws.

As for the second part of the condition, that the husband be “of the Jewish faith,” the judge expressed no opinion of his own but simply cited the precedent of the Blaiberg case, that maiters of faith and belief are questions of conscience which are beyond the jurisdiction of the courts. The decision of the lower court then was that the con-

dition in Barnett Samuel’s will which made a legacy dependent upon issues of religion and race was invalid, and that the will must therefore be interpreted as though this

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condition did not exist: the daughter, despite her mar-

riage to a Christian, had not lost her right to her father’s estate, nor had her husband or their children.

The case was then brought before the Court of Appeals. This court expressed opinions which are of great interest, especially when they are compared with the subsequent decision of the House of Lords. Here is a brief summary

of the decision rendered by the Court of Appeals:

The testator had done what many other testators try

to do: to direct and guide the lives of their children from

the grave. Generally the courts do not look favorably upon such conditions and attempt to invalidate them whenever possible. But here, in the case of the will of Barnett Samuel, the intention of the testator was clear and unmistakable. The condition set by the deceased, in both its aspects, refers to a matter of religion. He had ex-

pressed his clear wish that his daughter’s future husband

be a Jew whose parents were also Jewish. This meant that it would not have been sufficient for him to have accepted Judaism prior to his marriage: he must be a Jew by birth, not a convert. The testator had made his bequest dependent upon the fulfillment of this condition. Since the condition had been violated, the claims of the daughter and her husband were invalid. Thus the Court of Appeals reversed the decision of the lower court. A second appeal brought the case before the House of Lords. Here the case was heard before five distinguished jurists. Because of the great significance of the issues involved, each one of the five wrote an individual decision

in which he explained exactly what had motivated his

decision. These opinions were later published in book form to serve as a guide and precedent for judges in future cases relating to wills and legacies. I shall give

here no more than excerpts from these opinions.

, + Religious Stipulations in Wills

One of the judges (Lord Romer)

follows:

313

wrote in part as

My Lords, this appeal is concerned with a clause in the will

of one Barnett Samuel who died on June 2, 1925. He was one of those testators, of whom I venture to think there have been

far too many, who by means of a forfeiture clause have sought to compel a person to whom benefits are given by the will to act or refrain from acting in matters concerned with religion not in accordance with the dictates of his own conscience but in accordance with the religious convictions of the testator himself. That a testator may do this should he so desire is beyond question; but in such a case it behoves him to define with the greatest precision and in the clearest language the events in which the forfeiture of the interest given to the beneficiary is to take place... . My Lords, the first question to be determined on the appeal is what is the meaning of the words “of Jewish parentage.” Do they refer to race or religion? . . . In my opinion on the true construction of this will the words refer to race and not to religion or faith. .. . In the first place the testator in stating the qualifications that must be possessed by a husband of his daughter Edna seems to be drawing a clear distinction between parentage and faith. If he had intended that the husband should be and his parents should have been of the Jewish faith, he could so easily have said so. I cannot think that he would have used the language in which this clause is in fact expressed. In the next place it seems to me to be much more probable that, when stating the qualifications to be possessed by a husband

of his daughter, the testator, while stipulating that he should be of the Jewish faith, should concern himself in addition with

the racial descent of the husband rather than with the religion of the husband’s father and mother. F. imally, one of the meanings of the word “parentage,” and I am disposed to think its primary meaning when coupled with a word indicating nationality such as Jewish, English, French or the like, is race or descent. ... But what degree of Hebraic blood would a permissible husband have to possess? Would it be sufficient if one only of his parents were of Hebraic blood? If not, would it be sufficient if

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both were? If not, would it be sufficient if in addition it were

shown that one grandparent was of Hebraic blood or must it be shown that this was true of all his grandparents? Or must the husband trace his Hebraic blood still further back? These are questions to which no answer has been furnished by the testator. ...

Even if the clause could be read as though it merely provided for a forfeiture in the event of the daughter being married to a man not of the Jewish faith, I am of opinion that it would still be void for uncertainty. For how is it to be ascertained whether a man is of the Jewish faith? ... I should agree entirely with the Court of Appeal as to this if only I knew what was the meaning of the words “of the Jewish

faith.” Until I know that, I do not know to what the evidence is to be directed. There are, of course, an enormous number

of people who accept every tenet of and observe every rule of practice and conduct prescribed by the Jewish religion. As to them there can be no doubt that they are of the Jewish faith. But there must obviously be others who do not accept all those tenets and are lax in the observance of some of those rules of practice and of conduct, and the extent to which the

tenets are accepted and the rules are observed will vary in different individuals. Now, I do not doubt that each of these

last mentioned individuals, if questioned, would say, and say in ali honesty, that he was of the Jewish faith. On the other hand I do not doubt that one who accepted all the tenets and observed all the rules would assert that some of the individuals I have mentioned were certainly not of the Jewish faith. It would surely depend on the extent to which the particular individual accepted the tenets and observed the rules. My Lords, I cannot avoid the conclusion that the question whether a man is of the Jewish faith is a question of degree. The testator has, however, failed to give any indication what degree of faith in the daughter’s husband will avoid and what degree will bring

about

a forfeiture

of her interest

in his

estate. In these circumstances the condition requiring that a husband shall be of the Jewish faith would, even if standing alone, be void for uncertainty.

A second judge (Lord Atkin) joined his opinion with

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that of the first, but added that he looked with disfavor upon the power given to testators to rule from their graves the marital choices of the beneficiaries under their wills, and that he would be pleased to see this power annulled entirely. The third judge (Lord Russel of Killowen) declared:

the testator wanted te see two conditions fulfilled by his

son-in-law, namely, that he be both a Jew and a person of Jewish parentage. One term referred to religion, the other to race. Here, however, problems arise. Must both parents be Jewish or only one? What percentage of Jew-

ish blood must flow in a man’s veins so that he may be considered to be “of Jewish parentage”? There is no clearcut standard for Jewish descent. The same holds true for the question of the ‘‘Jewish faith.” Again the testator had

not clarified the degree of religious observance he expected of his son-in-law. Thus it was difficult to say of any person whether he was truly an adherent of the Jewish religion. Summarized briefly, the opinion of the fourth judge (Lord Wright) was that any testator who wished to make use of his prerogative to make his bequest dependent upon some special condition must be particularly careful in his wording. The phrase “of Jewish parentage” indi-

cated a concern over racial purity.

But it is a different problem to determine what is the degree of racial purity in fact required by the condition. In that respect the clause falls short of clearness and distinctness. On reading it, the court or other party interested is left in complete doubt what degree of racial purity will satisfy the condition. Is it to be 100 per cent., or will 75 per cent. or 50 per cent. be sufficient? The words of the clause do not enable any definite answer to be given. It is not that the language is ambiguous, so much as imperfect and incomplete. The court would have to amplify and

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add to it before it could be held to denote any definite set of facts. That would be to rewrite the testator’s will in that respect, and be beyond the competence of the court, and still more of the party interested. That limb of the composite condition is therefore void and, it follows, so is the whole con-

dition. ... This conclusion renders it unnecessary to express a final opinion on the words “of the Jewish faith.” As at present advised, I do not think they are of insufficient clearness and distinctness. I am not impressed by the contention that they refer to a state of mind or of religious conviction which is incapable of proof. States of mind are capable of proof like other matters of fact: courts of law and equity have to decide questions of fraudulent intent or the like... . I do not see why “Jewish faith” should not connote a specific fact equally with “Christian faith.” The latter is an all-embracing term which includes many possible varieties:

Roman Catholic, Anglican, Presbyterian, Lutheran and others.

There are many mansions but they are all included in one house. I should not be disposed to regard “Christian faith” as a phrase lacking in clearness and distinctness. I see no reason in principle why “Jewish faith” is not sufficiently clear and distinct to identify a specific set of facts to which it may be applied. But I do not pursue these questionings. The view I have expressed on the words “Jewish parentage” is sufficient to decide the appeal with the result that in my judgment the whole condition is void.

These words of the judge regarding the simplicity and clarity of the concept “the Jewish faith” did not, however, serve to uphold the validity of the condition laid

down by Barnett Samuel, and the will was executed as though that paragraph had never been written. The opin-

ion of the Court of Appeals was reversed and the original decision of the lower court upheld. The Blaiberg and Samuel decisions have since been used as precedents in a number of similar cases throughout the British Empire.

FOUR

The Testament of an Apostate Up to now I have been discussing the wills of devout Jews who attempted to insure their children’s adherence to

their religious or national tradition. I have not touched upon the act of defection from this tradition as it is viewed by the individual most closely involved—the

apostate or the Jew who marries a non-Jew. This attitude

would probably be most honestly expressed in a deathbed declaration or will, but it was only recently that I came across such a document for the first time. This was the extraordinary ‘“‘confession” of one apostate, who had drawn up her soul’s reckoning as she approached old age. The will was written in April 1940, in Sofia, and I here

cite several paragraphs translated from the original Bulgarian:

Since no one knows when his time will come to leave this

world

Raina

and

enter the realm

Constantin

Fanzaba,

of eternity, I, the undersigned,

daughter

of Aaron

Shemaya

Fulman, born in Bukarest, Rumania, and now living in Sofia

... a Bulgarian citizen, in my sixty-fifth year, without close or distant relatives, wishing to provide in advance for what is to be done with my possessions after my death, hereby declare that this is my last will and testament, written of my

own free will, in sound mind and with a clear conscience .. . 317

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Tam a Jewess by birth. Due to a combination of circumstances I became converted to Christianity forty years ago, when I married Mr. Constantin Fanzab. This was my greatest misfortune. My life with my husband soon became unbearable, and it is now thirty years that we have lived apart although in the same house. His attitude toward me was one of great cruelty. It went so far that he began to beat me, curse me and call me foul names, such as “dirty Jewess.” Despite this, or perhaps because of it, I remained

inwardly Jewish,

and to this day think of myself as a Jewess according to my beliefs and conscience. I am now attempting to overcome the obstacles that prevent my obtaining a divorce from my husband, and to arrange for my official return to the Jewish fold. But, regardless of the outcome of these efforts, I hereby express my desire to be buried, without regard to expense, in accordance with the rites of Israel... As evidence of my feelings of loyalty to the faith of Israel and to the Jewish people, I hereby declare that I want all the property that shall remain after my death, except for the bequests enumerated below, to be transferred to the municipality of Tel Aviv, near Jaffa, in Palestine. The proceeds of the sale of my property are to be deposited in a reliable banking establishment in Palestine as a fund whose income is to be used for supplying free food to poor Jewish immigrants, either in existing institutions or in such institutions as shall in the future be established by the city of Tel Aviv.

She then enumerated a number of specific bequests: Ten per cent of the proceeds of the sale of my belongings to go to the municipal government of Sofia, for the care of Christian invalids; $200 in American money to be established

as a trust fund for a synagogue in Philadelphia, the income to be used for an annual prayer service on the anniversary of my mother’s death, at her grave which is in that city.

Nor could she forget or forgive what her husband

had done:

The Testament of an Apostate It is my wish that, if I do not succeed in obtaining before my death, all claims by my husband—-from have actually been separated for thirty years—be invalid, because of his mistreatment of me and his He is to receive no share whatever of my estate.

319 a divorce whom I declared infidelity.

She addressed a request to serve as executor of her will

to the president of the Sephardic community

of Softa,

and entrusted all her possessions into his hands. These included: gold and silver coins from Turkey, Bulgaria,

France, England, Russia and Austria; a large collection of valuable jewelry, watches, combs and medallions; de-

posits in Bulgarian and in American banks, and so forth. The will concluded with the following words:

This will is to be opened before my burial, and on the same day the distribution of my property is to be decided. Sofia, April 10, 1940.

The signature was simply “C. Fanzaba.”

As one reads this unusual document one cannot but recall the saying of our sages: “An Israelite, even though he has sinned, remains an Israelite.”

FIVE

Love of Zion Reflected in Wills “If now J have found favour in thy sight, put, I pray thee,

thy hand under my thigh, and deal kindly and truly with

me; bury me not, I pray thee, in Egypt. But when I sleep with my fathers, thou shalt carry me out of Egypt, and bury me in their burying-place” (Genesis 47.29-30).

This was the Patriarch Jacob’s last instruction to his son Joseph and constitutes one of the earliest examples of a testament in the literature of our people and of the world. In order to emphasize the importance of his request, Jacob reiterated it in his parting words to his other sons: I am to be gathered unto my people; bury me with my

fathers in the cave that is in the field of Ephron the Hittite,

in the cave that is in the field of Machpelah, which is before Mamre, in the land of Canaan, which Abraham bought with the field from Ephron the Hittite for a possession of a buryingplace. There they buried Abraham and Sarah his wife; there

they buried Isaac and Rebekah his wife; and there I buried Leah (Genesis 49.29-31).

Joseph followed the example set by his father and he,

too, instructed his brothers before his death: 320

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I die, but God will surely remember you, and bring you

up out of this land unto the land which He swore to Abraham,

to Isaac, and to Jacob ... and ye shall carry up my bones from hence (Genesis 50.24-25).

The precedent established by the Patriarchs has been followed for generations. For two thousand years Jews

living in the Diaspora cherished the memory of the Holy

Land, and in their Jast wills instructed their children or

whoever of their families and friends remained after them, to do them this final service, so that in death they would at last be reunited with the land for which they had yearned every moment of their life. It is of the nature of such wills that they are written in the Diaspora, but many are brought before Israel courts

for final execution, particularly if the testator left prop-

erty to be divided here. A world of love and devotion to the land of Israel is revealed in these documents. For example, we find these words in the will of a Jew-

ish woman who died in America:

... It is my wish to be buried on the Mount of Olives in

Jerusalem, near the graves of the holy Prophets and near the great Rabbis Kook and Epstein—may their memory be a blessing unto us—if it is at all possible. A white marble stone shall be erected over my grave, the inscription to be chosen by the Chief Rabbi of Jerusalem as he deems best.

This simple woman did not know the actual arrangement of the graves on the Mount of Olives, but it was her

wish to be buried near the spiritual leaders of our people, and she never doubted that Jews would somehow find a

way to carry out the wishes of the departed. A feeling of rootlessness in the Diaspora, combined with a vision of the glorious future of the land of Israel,

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caused Jews throughout the generations to yearn for the

soil of the land, even for its dust. This longing for the soil, for the sacred dust, often speaks from their wills. Here is a will, which is at the same time a confession,

written in Yiddish by a woman who was born in Jerusalem but died in America: My beloved children, you know well that I was born in the Holy City of Jerusalem. After my marriage to your late father, we moved to America in search of a livelihood, but no day has passed since then that I have not remembered the Holy Land. My body was here, in America, but my soul and spirit were there, in the land of the Fathers. You, better than anyone else, know how much I longed for Jerusalem, the city of my birth. On the Sabbath and on the festival days especially I could not still my longing—my soul was drawn there. Many times I made up my mind to return home, and had even made preparations for the journey, but Heaven prevented me and I remained here. Now the time has come at last. In accordance with the commandment to honor your parents, I instruct and beseech you to bring my body immediately after my death

for burial to Jerusalem, to the Mount of Olives, and to conduct

the burial in the strictest orthodox manner. This is my wish and my desire. And I promise you that in whatever way it shall be possible, I shall be a spokesman for you in the World of Truth....

Most of those who leave instructions for burial in the land of Israel request that their final resting place be in Jerusalem, on the Mount of Olives. Some prudently prepare a grave in their lifetime, leaving in their wills an exact description of the site, the names of those from whom they purchased the plot, the number and date of the deed, and even the names of the “good neighbors” they have found there, as well as an enumeration of the holy graves in their immediate vicinity. Here is one example:

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I instruct the executors of my will to bury me in the grave which I purchased from the Gomel Hesed Shel Emet Burial Society, on the Mount of Olives, to the right of the grave of Abraham Noah Pali, facing Mount Scopus, in accordance with the deed of purchase dated the 13th day of Tebet, 5694. I have paid in full for the plot, for the tombstone and the inscription, as well as for all other expenses.

Is there not here an echo of the words of the Patriarch:

“*... Bury me with my fathers . . . in the cave that is in

the field of Machpelah, which is before Mamre, in the land of Canaan, which Abraham bought . . . from Ephron

the Hittite for a possession of a burying-place . . .”?

All the dreams and longing for the Holy Land which

filled the soul of the entire people as well as the heart of

the individual Jew throughout the long, dark years of exile, are often best expressed in a will that echoes the psalm, “IfI forget thee, O Jerusalem...” First and foremost, of course, was always Jerusalem— the heart of the land—and the Mount of Olives, where generations of scholars, saints, and builders of the new

Zion have found their last resting place. After Jerusalem come the other holy cities: Safed, Tiberias, Hebron. One of the elders of the Sephardic community, a native of Hebron, a beloved and learned man who died during the

Arab-Israel conflict, addressed this wish to his family:

“Bury me, if it is not impossible, near the graves of my ancestors in Hebron.” Actually he knew that this wish

could not be fulfilled, for Hebron was in the hands of the

Arabs; but the will had been written many years before,

when the Jewish Yishuv in Hebron was still flourishing,

and, hoping that by the time of his death the city might

again be open to Jews, he had not wanted to alter

his request. Some, however, do not specify burial in any of the

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four holy cities—for is not all the land of Israel holy? One man wrote the following in his testament:

I bequeath a plot of land in Gezer, Palestine, which I had

purchased for 250 pounds from the Maccabee Real Estate Organization, to the Jewish National Fund, and it is my hope that if one of my children emigrates to Palestine, he be given first choice to settle upon this land. ... I hereby also express my desire that the administrators of my will see to it that I am buried in the land of Israel. It is my wish that if there is a vacant plot available in the cemetery of Gezer, I be buried there; but if not, in any other place in Israel which they will select.

Why do Jews want their remains to be transferred from the Diaspora for burial in Israel? The primary reason is, of course, a religious one. God had chosen this land from among all others as His own inheritance, just as He had chosen the Jewish people from among all nations as His first-born. The land of Israel is therefore

the holiest of lands. Many terms of endearment for the

land of Israel are found in our sacred writings. It is the “land of God,” the “mountain of His inheritance,”’ the “abode of His holiness,” the “land of Grace.”

Hundreds of sayings are scattered in our literature in praise of the land and of him who dwells therein. Rabbi Meir, for example, who lived in the second cen-

tury C.E., stated: “Whosoever dwells in the land of Israel, and observes the laws of purity of food, and speaks in the Holy Tongue, and morning and at night, will share This was how our forefathers Israel. If, however, an Israelite

recites in the looked found

the Shema in the World to Come.” upon the land of it impossible to

embrace the dust of the land in his lifetime, he would try

to emulate the example of the Patriarchs by providing that his body be taken there for burial, for “he who is

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buried in the land of Israel, it is as though he were buried

beneath the altar of God.” His sins are forgiven him, as it is written: “And He doth make expiation for the land of His people” (Deuteronomy 32.43). According to the

Midrash, there is a vast difference between the fate of

those who are buried in the land of Israel and those

buried

in the Diaspora.

For, at the end

of days,

“the

graves of the dead in the land of Israel will open, and they will go forth living and seeing immediately the presence of the Shekhinah, as it is written: ‘And ye shall know that I am the Lord when I open up your graves.’ As for

those buried outside the land, the earth will open under-

neath them and they will move through the earth like

worms, as an atonement, until they reach the Holy Land, and only there will they ascend and go forth and behold the presence of the Shekhinah, as it is written: ‘When I shall bring you up from your graves, my people.’ ”

This was the concept of Gilgul Mehilot—the “Migra-

tion Through Caves”—which for generations cast a sense of awe and trembling upon the pious in the Diaspora. The transfer of the dead from the Diaspora for burial in the land of Israel was deemed a meritorious deed. While, generally speaking, Jewish law does not approve the transfer of the dead from one grave to another, exhumation is permissible when the object is burial in Israel. This, then, is the religious motivation behind most of

the requests for burial in the land of Israel. A second motivating force is the nationalistic one. A Zionist, who throughout his life was imbued with love of the land of Israel and who dedicated the best of his time and energy to its rebuilding, but for one reason or another could not settle there in his lifetime, may also seek his last resting

place in her soil. He, too, echoes the ancient wish:

“In

the midst of my people let me lie.” However even today

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the wills written by pious Jews, moved by religious conviction and by dread of the ‘‘Migration Through Caves,”

far outnumber those of a purely secular, nationalistic

origin.

It was considered proper for an Israelite to live in his

land, among his own people, and also to die and be

buried there, for sanctity hovers over the land and per-

vades its very atmosphere. This sanctity is inherent not only in the land itself, but even in its dust, in the clods of earth that were taken from it and brought to the Diaspora. Thus a Jew who was unable to enter the land in his lifetime and saw little hope for burial there after his death, would arrange that at least a handful of the sacred soil be placed in his grave. It is an ancient tradition that “if dust of the land of Israel be placed upon the eyes of the dead, and upon his navel and his circumcised foreskin,

he is considered as one who is actually buried in the land

of Israel.” A Jew living in the Diaspora, therefore, who

was fortunate enough to obtain a sackful of soil from the Holy Land, would guard it as the apple of his eye, and

leave instructions in his will as to how this sacred dust

was to be used. No one can read such a will and remain unmoved.

Thus one rabbi wrote:

There are, in the attic of my house, two small bags of soil from the land of Israel, one containing simple, pulverized dust, while the other holds white soil that is hard as stone.

Let this white soil also be ground fine, and let the dust be strewn over my entire body and over my limbs...

But fearing that this precious treasure would be entirely exhausted and that his children might neglect to

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obtain any of the sacred soil for themselves when their

time came, the testator added quickly:

Because of the great value of the holy soil for all Israel, let them leave a little of the white soil unground, to be kept by my children as a reminder . . . so that it may awaken in them,

too, the desire to obtain burial in the soil of the land of Israel.

Perhaps they may yet enjoy the privilege of ascending to

the land and dwelling therein. They would then be blessed

indeed...

In accordance with the custom of our fathers to prepare, along with their shrouds, a small sackful of earth

from the land of Israel, one man wrote, among other directions for what was to be done after his death:

- my shroud is prepared. Stockings as well as a veil of linen are included with the Kittel. You will also find a paper bag marked “Earth from the Holy Land.” This was brought to me by Rabbi Ovadiah, who assured me that it was taken directly from the Mount of Olives in Jerusalem. Let this dust be strewn over me, from the skull and over the entire body to the feet, so as to fulfill the verse: “And He doth make expiation for the land of His people.”

The modern Yishuv has upheld this tradition. To those

of its sons who, in the course of World War II, fell in

battle on foreign soil, it gave a priceless gift: handfuls of earth from the land of Israel. The chaplain who accom-

panied the Jewish Brigade at the height of the Italian

campaign described it thus:

A sackful of earth was sent to us from the Y ishuv, and we

strewed it over the graves of the dead, mingling the holy earth with the earth of Italy which had been liberated from the foe with the help of Zion’s beloved sons... . And yet [the chaplain concludes], our heroes’ rest will not be comple te

until we transfer their remains to be buried in Israel. The time has come to approach this task, too.

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In the hurry and confusion of daily life a man rarely

stops to think about what the distant future may hold in

store for him and his family. He is busy, gets excited, makes plans, buys and sells, strives to move heaven and earth to achieve his immediate aims—all his being is engulfed in the whirlpool of the everyday. Thoughts of the far-off tomorrow do not disturb his mind. But when

some sudden calamity befalls him, or as he begins to feel the approach of death, a cloud darkens his horizon;

then he is inclined to cast up his account with himself and with his Creator. The pious see before them a long

and weary road, and strive to prepare sustenance for the journey—-spiritual sustenance, learning and good deeds —that may help them to gain entrance to the Gates of

Mercy when that last day comes. Businessmen make sure

to bring order into their affairs and to settle their material possessions, so as to prevent a financial collapse after

their death. Fathers are concerned about their children,

husbands about their wives, rich men about their poorer

dependents. Herein lies the chief reason for the will: the

ultimate balance sheet, the final accounting, the last words addressed to those who remain. Here, in his will, a man is at last revealed in full. Thereby his true nature

becomes known, for here he gives unfettered expression

to his hopes, his aspirations, and his life’s goals. The will is always entwined and interlocked with the

concept of death, and the thought of death in turn awakens thoughts of what lies beyond, of eternity. In the

heart and soul of the Jew the idea of eternity and of life-

after-death has always been closely linked with the land of Israel, the land of the resurrection, the land that combines the memories of Israel’s glorious past with her hopes for the future. It is therefore not surprising that the land of Israel occupies a central position in the last testaments of many Jews, and especially of those who

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face the knowledge that their lives are forfeit, those who have been condemned to death and stand in the shadow of the scaffold.

Two wills of this kind have come to my attention, and

I transmit portions of them here.

The first is the will of Baron Giza Alek, whose story is

part of one of the most tragic episodes in the devastation that came upon European Jewry during the second World War.

The Jewish family into which Giza Alek was born had its roots in the Hungarian city of Munkacz. In the

beginning of the nineteenth century a certain Emanuel

Ovenshpenger left Munkacz to settle in the town of Nagy-

Kanizsa, in southwest Hungary, about 270 kilometers from Budapest. There he began to engage in the tanning and dying of skins; and he grew rich. His son Leopold, a man of initiative and energy, established a bank in the same town and became famous throughout the area for his generosity and business integrity. He acquired a good deal of property in the adjacent area and built a beautiful mansion in the village of Ujnepuzsta. In recognition of his many activities for the welfare of the nation he was granted a title of nobility by the Emperor Franz Josef. With the path thus open to him to enter the best society and to mingle with the great, he changed his name from

Ovenshpenger to Alek and began to conduct himself like a Hungarian nobleman.

Leopold had two sons, Arno and Giza. They followed in their father’s footsteps and also became successful businessmen. Arno, the elder, was converted to Christianity and, leaving no heirs when he died in 1933, was buried in a Catholic cemetery. His younger brother Giza, however, although he, too, was completely assimilated in his way of life to that of the Hungarian nobility, never entirely severed his ties to Judaism. He married the

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daughter of a wealthy Jewish industrialist from Vienna.

They had one son, Paul, born in 1902. Giza Alek’s life was uneventful until catastrophe overtook the Jews of Europe, including the Jewish community of Hungary. In 1942 his son Paul, a physician by profession, was drafted into a special labor brigade for Jews and was later murdered by Hungarian guards in the Ukraine. The Baron and his wife were confined to the ghetto of Nagy-Kanizsa together with the other Jews of the area. When this ghetto was “liquidated” they were transferred to Auschwitz, where both died in the gas

ovens.

Before his removal to Auschwitz the Baron managed

to leave with an old friend, a lawyer, a closed envelope

which he asked him to deposit with the town’s notary public. The envelope was marked: “Joint will of Baron Giza Alek and his wife . . . 2/16/1944,” In compliance with the instructions given to the notary by the Baron’s friend, the envelope was opened after the death of the Baron and the Baroness, and the joint will was made public. What did these two almost completely assimilated Jews write in their last hours, before being led to their death for the sake of their half-forgotten

Judaism?

The will began with these words:

“We,

the under-

signed, Giza Alek and his wife Marie, have executed this

joint will for the eventuality that we both die at the same time, so that it will be impossible for the survivor to draw

up a new will.” This preamble was followed by the main paragraphs of the will, which read as follows:

We direct that after our death our entire property, real

estate as well as movables, of every description, be used for

the erection of a hospital in the city of Tel Aviv, Palestine, in

a °

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memory of our only son, Dr. Paul Alek, who died a death. In order to realize this purpose we direct that properties in Hungary and in Vienna be sold . . . and proceeds of the sale be transmitted immediately to the of the city of Tel Aviv,

Palestine,

hero’s all our all the mayor

or to the administrative

director of that city. The mayor or the administrative authority of the municipality is to use the money for the purchase of an appropriate site and the establishment of a trust fund in the name of Dr. Paul Alek, who died a hero’s death. The foundation is to be obligated to erect a hospital with at least fifteen beds as soon as the accrued income of the fund suffices for this purpose. Both the trust fund and the hospital are to be clearly designated to have been established in accordance with our will in memory of our only son, Dr. Paul Alek, who died a hero’s death. The above-mentioned hospital is to be used for the treatment of the Jewish sick, with prefer-

ence to be given to those who came to Palestine from Hungary or from the former Republic of Austria.

The final paragraph

of the will is the most heart-

rending: “In conclusion, we express our wish that after

the war our son be buried at our side.” The will was carried out only in part. After the war the Hungarian government confiscated a large portion of the Aleks’ property, including some of the furnishings of their home. The property in Austria, which they had

inherited from the Baroness’s father, was turned over in

its entirety to the municipal government of Tel Aviv for

the fulfillment of the designated purpose.

More specifically Jewish in style as well as in content, and written under perhaps even more tragic circumstances, is the second will. It was written in a Russian

prison by a man who knew he would not leave his cell alive. This was the background:

In 1920 a father and his son were arrested by the

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Bolshevik government in Kiev on some baseless accusation. The father, wanting to save his son’s life, immediately pleaded guilty and took the entire responsibility upon himself. While awaiting execution he composed this extraordinary document; he did not know that his sacrifice had been in vain and that his son’s doom had already been sealed. Father and son were both executed, but the will reached the hands of friends and soon became famous. It embodies the most sacred feelings of a Jew

facing death—feelings of pity for his young children, and a boundless love for the land of his ancestors. Here

are a few excerpts in which the father speaks about his two youngest sons, and maps out a plan for their future: For this my heart grows faint and my coals—when I remember the fate of my two fledglings born to me in my old age, will remain like a ship without a captain,

soul burns as with small children, the Isaac and Zvi. They tossed by the waves

of the ocean, with no one to steer her ashore. Whither will the

winds that roam across this desolate sea carry them? .. . I tremble for you, my beloved sons. It is not for your physical welfare that I weep, for there are many children like you, forsaken and alone, and yet they grow and wax strong. But

it is for your spiritual welfare that my soul is downcast, refusing to be comforted, for who shall take my place? Who will direct you in the path I had marked out for you? God knows that my dearest hope for you was that you would grow up as true and

righteous

Jews,

in the fullest sense

of the word,

men of renown in Israel and in the land of Israel that is blooming once again. I hoped particularly to see my ideals realized by my beloved and gifted son Isaac. By his every act the boy demonstrated that he had inherited a pure and truly Jewish soul. He loves his studies and learns attentively, cherishes both the language and the stories of the Bible, and yearns for the land of Israel with all the depth of feeling of an adult. I for my part attempted to develop his innate abilities and to implant in him the roots of devotion, to stir his spirit with stories of the history of our people and of the land

Love of Zion Reflected in Wills

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of Israel, which left an imprint on his tender heart; he ab-

sorbed my words thirstily, enjoyed my tions so penetrating they moved me breath I shall remember the last few my home, when he fell weeping on my with his two small arms. A stream of

tales, and asked questo tears. To my last moments before I left neck and embraced me tears flowed down his

face and with a trembling voice he called out, “Father, Father, do not leave me! I want you to remain with me always. I

love you! Stay with me, Father!” My heart became as a stone and I could not speak. Then the fountain of tears opened for

me, too; I embraced him, kissed him and wept, and could not

speak; the guards were pressing me to hurry, last strength J cried out to him from the depth “My beloved son! My son Isaac! Listen to what Study Israel’s Torah with love, learn the Holy all your

heart,

remember

and

never

forsake

and with my of my heart: I ask of you: Tongue with the land

of

Israel! It is my wish and my hope that you go there at the first opportunity!” And he answered me in a tear-choked voice, “Father! I will study and I will go to the land of Israel, but do not leave me! I will study, and I will go there!” Then I had to tear myself from his arms, and he still clung to me. I was pushed out through the door, and I heard him calling after me, “I will study and I will go to the land of Israel!” May your words be fulfilled, my beloved son, and that will be the reward for all my suffering; it is my dearest wish! May it be the will of the Almighty that the words of this child be fulfilled speedily, for this is my hope in these last moments of my life. In all ages it has been customary to grant a condemned man’s last wish; who then would be so heartless

as to close his ears to this last wish that I express now, before I sink into oblivion? And what is it that I desire? Only to rescue two Jewish souls, and to bring them to their haven of refuge in the land of Israel.

Here he turned to some of his friends, listing them by name, and addressed them thus: Dear friends, try to take a father’s place for these orphans;

take upon yourselves this holy task, to watch over my

two

small sons, Isaac and Zvi, to light their path so that they

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may grow up as sons loyal to their people and to their country; teach them the way to go. Incline your ears to my request; take it upon yourselves to be their fathers and their guides, to lead them on the way to Zion. And when God remembers you to redeem you and bring you back to the Holy Land, take my children with you—for if you do not

remember

them,

who

will?

...

I want

to believe

in the

strength of your love for Zion, that you will do what is right for these young souls so that they may grow up as true Jews. This is my hope in the hour of my affliction—that they will go as halutzim to the land of Israel, for this was my vision of hope all my life. And this will be the recompense for my lost life; with it I go to meet Death undaunted, and his dread can no longer overcome me...

He next addressed his older sons, enjoining upon them the duty of caring for their young brothers. He then turned to the beloved child born of his old age: My dear son Isaac! You are small and weak, my beloved son, only eight and a half years old; your understanding is still limited and you will not yet grasp all the meaning of my words, But it will not be long before you find yourself suddenly old beyond your years, for this is the way of every orphan: to leave the realm of childhood early and to look upon himself as an adult. Listen, my son, and I will reveal to you the future that lies before you, Behold, there are two paths, the good and the evil, the path of life and the path of death—and you must choose the path of life. Drink from the fountains of wisdom and learning, and do not forget for a single moment that you are a descendant of the people of Israel, and that it is your duty to honor the name of Israel and of its holy martyrs. If others scorn and defile it, pay no attention. Do not give ear to those who slander and mock

Jews and Judaism, for there are many who spread lies about

us in order to destroy us. The primary cause of all our woes and of the persecutions we have suffered in every generation

is that we are aliens, far from our own land. We are scattered

and dispersed in all the corners of the world, and everywhere we are looked upon with scorn. Many are our enemies, and

Love of Zion Reflected in Wills

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we cannot stand up to them, for we are few in number and have not the strength to defend ourselves. Thus we stumbled and fell, our blood was spilled like water, and there was no one to redress our wrong. All this came upon us in the lands of the dispersion, because our own land was laid waste. Our soil was in the hands of strangers; our strength was given

to foreigners; we had no heritage and no haven; we were wanderers; and the sword, destruction and ruin were our lot.

Thus our only salvation is to seek a refuge in the land of

Israel, the land of our ancestors. The time has come to win

back for the people of Israel the land of Israel, and to establish there a Jewish state, under the dominion of England, so that we may enjoy peace forever. My sons, my sons! I must now end my prophecy, for the dreadful hour has come . . . May God bless you and keep you, speed your path and bring you to Zion together with your dear ones, quickly and in peace. May the Almighty be with you and may you enter

the blessed land, the land of our fathers, and may

there be

peace and rest for you and for all our people, forever. Amen. Kissing you, I will die with a peaceful heart, and I say to you: Shalom! Your

father,

Jacob

ben

David

haLevi.

Many are the ways and different the forms in which Jews throughout the world have remembered the land of

Israel in their wills. I have discussed at some length the wills wherein the testators express their desire to find eternal rest in the Holy Land or, at least, to have some of the dust of that land strewn over their bodies before they were interred in foreign soil. In many wills, special importance is also given to bequests and charitable donations for the land of Israel; in this way, too, the testator expressed his love and devotion to the Holy Land and all it contains.

The religious, charitable and social institutions of the

old Yishuv, such as Yeshivot, Talmud Torahs, schools for

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and so forth, were often remembered in the wills of religious Jews who lived and died in the Diaspora or came to Israel in their old age to die there. I have seen many wills that contained bequests, large or small, for as many as forty such institutions. During the last two or three decades there have also been numerous bequests for the cultural institutions established by the new Yishuv, such as the Haifa Technion, the Bialik Institute and others.

There have also been generous bequests to the Jewish National Fund.

Unfortunately, many of the wills drawn up in the

Diaspora by non-Jewish lawyers, or by Jewish lawyers unfamiliar with the subject matter,

are not sufficiently

explicit and fail to satisfy the legal requirements regarding such bequests. Far too often the dedicated money fails to reach its proper destination. For example: In the year 1928 Elsa Blumenthal, a Jewish woman living in Germany, drew up her will setting aside a legacy of 200 Palestinian pounds for the Jewish National Fund. Instead of writing out the full name of the organization,

however, she referred to it simply as “J.N.”—the initials

standing for the German name Jiidischer Nationalfund. Frau Blumenthal herself planned to emigrate to Palestine and for this purpose transferred a large portion of her property there, but died before she could realize her wish. The administrator of her estate did not succeed in straightening out the matter before the outbreak of World War Il. The question now arose whether the J ewish Na-

tional Fund was entitled to receive the 200 pounds from that portion of the estate which was already in Palestine.

The case came before a Palestinian court. Here it was

argued that the Jiidischer Nationalfund was an organiza-

tion incorporated in Berlin in accordance with German law and, although its purposes were identical with those

Love of Zion Reflected in Wills of the Jewish National

Fund

337 and

it had

indeed

been

organized solely to serve as a German branch of the central organization in Jerusalem, it was nevertheless a separate and independent legal entity. The court there-

fore ruled that, while Frau Blumenthal had undoubtedly intended her money to reach the Jewish National Fund in

Jerusalem, her specific bequest had been made to the branch incorporated in Berlin; therefore the money was to be administered by the Custodian of Enemy Property until such time as hostilities would cease and peaceful relations between the two countries were resumed. The Mandate court thus set aside the argument for implementation of the inéent of the testator rather than the lit-

eral interpretation of the will. The money did not reach its destination.

Before leaving this subject, let us consider briefly a type of will that makes the inheritance of property conditional upon settlement in Israel. In this manner some testators hoped to influence their children or relatives to come to the Holy Land as permanent settlers. One man, for example, came to live in Israel when he was already well advanced in years, but was apparently unable to persuade his children to accompany him. He acquired a large apartment house here and lived on the income it brought him. In his will he instructed his executor to transfer title to the house to those of his children who would settle in Israel within five years after his death. At the end of this period, if none of them had lived up to this condition, the house was to become the property of

one of the charitable institutions of the old Yishuv in Jerusalem. Another man wrote the following in his will:

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It is my wish that the house I own in Jerusalem should not be sold for at least ten years after my death, and if any of my children emigrate to Israel within that time they are to live there free of charge. After ten years, however, my children shall be free to sell the house and divide the money between them.

A teacher—one of the first and most dedicated Hebraists in the country, a well-known pedagogue who had in

turn trained an entire generation of educators and teachers—left instructions in his will for his property to be divided equally among his children. But he added this condition:

Those of my children who are not Israel citizens or permanent residents of Israel shall not be entitled to any share of the above-mentioned property. Their share shall be deposited in an Israel bank in trust for them until such time as they become citizens of Israel. If ten years pass and they neither produce evidence of citizenship nor settle in the country, the

above-mentioned money and all interest thereon shall belong to the Bialik Institute.

Speaking of wills that express the love felt by Jews for the land of Israel, I cannot omit reference to the will

of a Christian which is permeated in its entirety by a

spirit of true affection for the land and the people of Israel. Here is one of those rare incidents in our history

that reveal the sincere sympathy of a non-Jew for the

aspirations of the Jewish people, and it seems to me that it is our moral obligation to make it known.

This was the story. In 1842 a will was drawn up by

Nadir Baxter, an Englishman to whom we may well apply the epithet, ‘one of the pious of the nations of the world.”

Among other things in this wonderful and unusual document, he wrote:

Love of Zion Reflected in Wills &

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I believe with perfect faith, and pray with a confident heart, that soon there will be established, under the protection of our honored Church and our glorious nation, a fund of contributions by Gentiles for the purpose of the return of the Jews to Jerusalem and to their country. It is my wish that 1000 pounds be set aside for such a fund from that portion of my estate which the law permits to be dedicated to charitable purposes.

In 1851 this will was probated before a British court, which voided the bequest. The court’s reasoning was that, since Jews were permitted at this time (1851) to dwell

in Jerusalem, handicapped only by their lack of political rights, the purpose of the testator could only be to attain

a change in the political status of Jews in the Ottoman Empire. This, in effect, meant incitement to a revolution in a country with which the British government maintained friendly relations, and was therefore incompatible with the public interest. The money went to the heirs of Nadir Baxter, the Christian who had unsuccessfully but eloquently expressed his love and sympathy for the land

of Israel and for its people.

SIX

Family Relationships Reflected in Wills Inevitably, the record of human relationships that is re-

vealed in the courtroom is one of hatred and violent passions; the charges and countercharges heard there almost always take the form of barely suppressed animosity. Yet it does happen that in the course of dealing with routine lawsuits, or while examining ordinary legal papers, one comes suddenly upon a tapestry woven en-

tirely of love and devotion. Of all legal documents, it is the will that most frequently gives expression to these kindlier emotions. The will, by its very nature, is directed to the limited circle of a man’s immediate family, relatives and inti-

mate friends; it is usually composed of a mixture of moral exhortation, advice and guidance, plus a detailed program for the distribution of the material possessions which the testator amassed during his lifetime. Obviously a man does not give advice and instructions, nor does he

bequeath the wealth that he labored a lifetime to acquire, except to those who are dearest and closest to him. The

greater the love, the greater the concern for the loved

one’s welfare. This feeling of love and concern is re340

a

_ Family Relationships Reflected in Wills

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vealed, directly or by implication, in the language employed by the testator, in the affectionate names with which he addresses his legatees, in the size and nature of the bequest. The will thus becomes a document of human, as well as of legal, interest. From it one may learn a great deal about the nature of man’s relations with his fellow men, and especially with the members of his immediate family and his nearest relatives.

A man’s will expresses, first and foremost, his concern

for the wife he leaves widowed. The words he writes to and about her are often deeply moving. One old man addressed these instructions to his children and grandchildren: At the side of my life’s mate—she who is your mother and grandmother—I knew days of joy and wealth, as well as of want and distress. In my sorrow she comforted me; she was a loyal companion who shared my cares as well as my joys. e From the depth of my heart I owe her unending gratitud course the out through me gave she love and n for the devotio of our life together. I therefore take this occasion to express my wish that, should I depart this world before her, you honor and comfort her, heed her words and obey her wishes, so as to make her last days on earth pleasant and happy.

Another will, drawn up jointly by man and wife who had grown old together, consisted only of this one sentence: true Since we spent all our days together in peace and from secrets no kept and r anothe one ted friendship, respec . . . each other, neither in material nor in spiritual matters whatterms: we have drawn up our will according to these together ever wealth we acquired in the course of our life into the us, of one shall pass, in the event of the death of sole possession of the survivor.

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How much lies behind these few words! We can easily picture for ourselves the idyllic life and the harmony of minds that reigned in the home of this couple, the unswerving love they felt for each other. As it turned out, the husband died before the wife, and she refused even

to come to court for the probation of the will, protesting that after her husband’s death she was no longer interested in any material belongings. It was only after much pressure exerted by other members of the family that she consented to fulfill the formal requirements for the execution of the will. It is, however, not only in the realm of the material that a man may express his attitude toward his wife. He

is now going to his eternal rest. But what of her? Shall

she remain a widow and mourn for him to the day of her death? She might, of course, remarry; but that is not always possible. Sometimes her hands are tied by the law and she is not free to enter into a new marriage except under certain conditions, I am here referring specifically to the case of a man dying childless when, in accordance with Jewish law, the wife must obtain halitzah* from her

husband’s brother. There are brothers-in-law who are not

prepared to fulfill this religious obligation of their own free will. Sometimes they must be persuaded and coaxed or even bribed. But the husband who is concerned for his wife’s welfare and truly seeks to protect her interests looks ahead to the future, and even in his lifetime makes

provision for removing this stumbling block from her path. Here is one example: A man wrote the following in his will: * The removal of the shoe, signifying the levir’s permission to remarry

(Deut. 25.7-9).

__, Family Relationships Reflected in Wills To my brother Shelomoh I leave the pounds, on condition that he come halitzah to my wife, if she requests it, this trip more than three months after quested to come and does not come legacy shall consist of only one pound.

343

sum of two hundred to Jerusalem to give and that he not delay my death. If he is rewithin that time, his

In another will, written by a pious German Jew, I

found the following paragraph:

I hereby direct that my brother be my sole heir as regards my interests in the Bank, in the city of ___, provided that he come to Jerusalem to carry out the religious ceremony of giving halitzah to my wife. In addition to this,

I also cancel the debt of 9000 Kronen which he owes me, if

he carries out the above-mentioned condition. I also direct that, should he decide to remain here, he be given—immediately after the completion of the halitzah ceremony—two rooms in my house, free of rent, as well as my phylacteries, my Sabbath prayer shawl, and whatever of my clothing he may choose.

These two instances exemplify a husband’s sincere devotion to his wife, expressed in his concern for her personal freedom and her right of free choice after his death. It also happens that a man’s great love for his wife confuses his rational thinking, and then the very opposite desire is expressed in his will: he attempts to confine her to a state of perpetual widowhood, and endeavors to persuade her, with financial enticements as well as with

words, to remain true to his memory forever. Nor are such wills the product of our modern age exclusively. In a will written more than two hundred and fifty years ago, for example, we find this paragraph: My beloved wife . . . Esther Sheindl . . . because of the great mutual love we once swore to each other . . . that if one

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of us should die before the other we will ask the Almighty to grant death to the other also, so that we may leave this world at one and the same time. But J have reconsidered and repented of this oath, for how dare we interfere in the mysteries of the Creator? If it be His will that we live out our lives together, this will indeed be good and pleasing unto us, but we must not seek to bring ruin upon ourselves if He should not grant both of us fullness of days. I therefore bless you and wish that you may live a hundred years, and fili all your days with good deeds, and I entirely void and cancel your oath. And thus do you also, if His decree be otherwise, and may He do what is pleasing in His eyes.

But then the writer goes on to say: I have asked of you, my beloved, my dove, my perfect one, that you do not take another husband, so that no other man may touch your flesh ... and in the future world, your share shall be my share, and your lot, my lot... . It is out of the greatness of my love that I speak thus to you.

It is difficult to believe that these passionate phrases

came from the pen of a great and scholarly rabbi; yet they were excerpted from the will of the renowned Rabbi Naphthali ha-Cohen, spiritual leader of communities in

Posen and later of Frankfurt-am-Main at the end of the seventeenth and the beginning of the eighteenth century.

Whoever assumes that a second marriage causes the

first to be forgotten would do well to glance at some of

the wills that find their way into the archives of the courts. He will soon realize his error. In the will of one old woman who at the time of her death was married to a second husband, J found this sentence: “I hereby bequeath the sum of one hundred pounds to that one of my relatives who shall be the first to

, t Family Relationships Reflected in Wills

345

name one of his sons after my first husband, of blessed memory.” A man who in his old age had married for the second

time never forgot the bride of his youth, and in his will

he stated:

I give the sum of eighty pounds to the Jewish National Fund in Jerusalem for the planting of trees as a memorial to my name and the name of my first wife, of blessed memory, with whose help J acquired all my wealth, as well as the sum of twenty pounds for the inscription of my name and that of my deceased wife in the Sefer Hazahav [the Golden Book of

the Jewish National Fund].

To his second wife he left only the sum that had been specified in her marriage contract.

Another man had married for the third time and in his will left a handsome sum to his widow, as agreed upon in the marriage contract, but stipulated that he be buried next to his first wife. It seems, then, that there is much truth to the popular saying: “Everything in the world can be replaced except the wife of the days of one’s youth.” Occasionally a will reveals the length to which a man, especially an old man, will go in order to win a woman’s heart. At times one cannot but smile when reading such a document. Here is an example: An elderly widower was paying court to a distant relative, a woman much younger than he. As part of his

strategy, he drew up a will in which he wrote, among

other things, the following:

To Miss I bequeath the sum of 300 pounds ... with the stipulation that if she becomes my wife in accordance with the Law of Moses and of Israel she shall be entitled to one thousand pounds instead of the above-mentioned three hundred, as well as all the furnishings and valuables in my house... .

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Apparently his generosity was effective, for the request

to probate the will was brought before the court some time later by this same young woman, now the widow of the

deceased. Sometimes the desire of an old man to win the love of a woman is so great that he does not even hesitate to employ deceit and cunning to gain his end. Thus one old

man, well past seventy, wrote a will on the day of his

wedding in which he left the sum of two thousand pounds to the woman who was to become his wife that same day.

But upon his death—he died soon after the wedding—it

was discovered that all his property amounted to no more than one bank account of sixty-five pounds, plus his personal belongings, the value of which was slight. From this

pitiful “estate” were subtracted thirty-one pounds for the

cost of the funeral, and the remainder went to the widow. Her total gain was small indeed.

So far I have been speaking of wills in which the

feeling of love and affection, devotion and loyalty between man and wife may be discerned. But, as we well know, not all marriages are happy. Sometimes the tensions between man and wife continue and grow throughout their lifetime together, and it is only because of external considerations that the quarrels are not made public and the marriage does not end in a final and complete rupture. Yet the poison of hate simmers in the heart of each until his last moment on earth, even as he stands on the final threshold. Only then does he break the bonds of silence that have held his tongue, and tells the world at last, without mercy and without shame, the grievances

that he has harbored in his heart against his wife. All the bitterness that accumulated in the course of years

bursts forth suddenly in a furious tempest, in the form of reproaches,

accusations

and

curses that make

the

Family Relationships Reflected in Wills reader shudder. The mask

347

is torn off, the cloak is re-

moved—and the secret suffering of the individual becomes public property. A few years ago a young man brought charges against his mother- and father-in-law, the parents of his deceased wife, demanding that the court order them to relinquish

custody of his son, a five-year-old boy, who had remained

in their home after the death of their daughter, the child’s mother. The grandparents refused to be separated from

the boy, arguing that the welfare of the child demanded

that he remain in their care, while the father’s influence

upon him would be a detrimental one. To substantiate

their charges they summoned several neighbors and acquaintances who testified to the man’s bad character and

reputation, relating hair-raising stories of the abuse he had heaped upon his wife and the child while she was still living. A social case worker testified that the plaintiff had sought to have his two sons (an older boy by a previous marriage as well as the five-year-old) admitted to a children’s home, claiming that he was unable to care for them. When informed that the home could not accept the children unless he agreed to make some token payment

for their support, he had said, “In that case, let them

roam the streets.”

This testimony of itself would have been sufficient to

convince the court that the father was not fit to obtain

custody of the child. But the grandparents wanted to

leave nothing to chance and called another witness. This

man, who had been a close friend to all the members of the family, told how after the death of the young mother

a letter was given to him which she had written in the presence of two physicians during the last days of her life. This letter, the testament of a dying mother anxious

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to assure the future of her child, supplied the last link

and sealed the child’s fate. This was what she had written:

Dear Mr. ___, I am very much concerned about my health, and am not sure that I have many days of life left me. I therefore turn to you, dear friend, with this request: I know

the character of my husband well. He is strange in his ways and in his thoughts. He is easily aroused to anger and then behaves like a madman. Nor has he ever been devoted to me or to our only son. He was cruel to us and nearly starved us. My heart would break when J saw how thin, frail and without energy the child had become because he was undernourished. I know that my husband would like to lay his hands on the litile property that I inherited from my first husband, and I fear that for this purpose he will seek to obtain custody of our child, I beg of you to try with all your might to keep my dear child, who is all my hope on this earth, safe and away from my husband’s influence. It would be best to place him in the care of an institution, or of my relatives who are devoted to him. The house and all my property shall, upon my death, belong to my son, for he has been the only comfort of my unhappy life. I am certain that you, dear friend, will try with ail your heart to fulfill my request. When my son reaches adulthood he shall be the sole owner of the house, and my husband shall have no share therein whatever. I repeat again and again this one request: that you carry out my last wishes and do not permit my child to fall under the influence of my husband.

This was followed by the signatures of the deceased and of two doctors who certified that she had been of sound mind at the time she wrote the will. This short testament, which reached the court only accidentally, reveals a fragment—and perhaps no more than a fragment—of the tragedy of an unhappy marriage.

¢

Family Relationships Reflected in Wills

The renowned Rabbi Abraham Horwitz opened foreword to his will with these words:

349 the

There are those who leave legacies and bequeath houses and properties . . . heavy chains of gold . . . all sorts of utensils. . . . But what avails it the man who is already on his way to his eternal rest that he has left his wealt h to others? .. , If there are those who die rejoicing in that they leave their wealth to their children who come after them, I say to them that they rejoice in vanities... For when a man leaves to

his sons only masses of gold and silver , they have

no true inheritance. Does any man then have an assur ance that his wealth will remain in his hands all the days of his life? It may be that he will lose it quickly, for wealt h has no permanence. Coins circulate; today they come and tomorrow they go, as our eyes have beheld: The world is turned upside down . . . those who were fallen are raise d and those who were high sink to the bottom. It is the way of the world that it never remains fixed, but changes const antly and at any

moment...

For this and other reasons it was the custom of the

sages of Israel in all generations to leave to their children legacies not of material possessions, but of moral counsel and spiritual] treasures, advice on conduct and on customs and manners. They even included advice upon intimate personal matters such as the relations between man and wife, as in the will of Rabbi Shabtai Horwitz: My daughters and daughters-in-law, and all your daughters after you: treat your husbands always with respec t and love, and strive to cause them no sorrow. If your husbands are angry, go outside and wait. And when the time of anger has passed, then do you gently reprimand your husba nd...

Wills such as these are found strewn like precious gems

in volumes on ethics, in rabbinical responsa, in legal

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treatises, and even in some special anthologies. It was their aim to teach their children the way to go and what to do, as Jews and as human beings; their only purpose

was to preserve, for the benefit of their children and for the nation as a whole, the unbroken chain of the generations.

This same desire passes like a silken cord through Jewish wills in our own day. Now, as then, there is a

twofold motive behind the writing of such wills: first, the love of a father for his children; and second, love

of and devotion to the traditions of Israel.

A few years ago the will of a Bukharian Jew came to

my attention. This man, a merchant of good repute, had left behind a considerable fortune in real estate and personal property. In his will, which comprised thirty-two paragraphs, he mentioned with amazing accuracy every detail of his complicated business affairs and carefully distributed the estate to the Jast penny. But he did not

neglect to devote a prominent section of the will to words

of ethical counsel and rules of proper conduct. And so

he wrote this paragraph:

I, the undersigned, enjoin my three sons to obey the following rules: 1) Be true Jews, Put on your phylacteries every morning and do not neglect to recite the morning, afternoon and evening prayers in the synagogue or, in cases of emergency, at home. 2) Give your sons and daughters Hebrew, and not for-

eign, names.

3) Deal kindly and generously with all men, and oppress no one. 4) Spread no evil gossip or slander. 5) Be pious Jews in every sense of these words, lest you become—God forbid—like those who immerse themselves in the ritual bath while holding unclean objects in their hands;

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in other words, those who recite the prayers every day and yet commit iniquities in their dealings with their fellow men, Be rather upright in all your dealings, and partic ularly in your dealings with each other. 6)

Refrain from

any violation of the Sabbath, and re-

member to study on the Sabbath day the commentari es of

Rashi, the Psalms, the Zohar and the Talmud.

7) Observe the sanctity of the festival days and study on each holy day the books appropriate to it. 8)

Do not visit places of defilement, and refrain also from

attending theaters or cinemas where immodesty is displa yed, nor permit your children to become accustomed to these. 9) Study the Hok Yisrael (Law of Israel) every day. 10) Observe the above-mentioned rules both in my lifeti me and after my death, for this paragraph is an essential part of my will and all the other paragraphs are bound up with it,

Concern for the maintenance of harmony and brotherly love among the surviving members of the family is a particularly characteristic feature of the wills of Oriental Jews. One man, a native of Baghdad, wrote thus to

his sons:

My dear and beloved children: All my life I have desire d only to see you living in unity and love and true brothe rhood. It is my greatest wish that you continue to live in peace and love even after my death, and that no sound of strife and quarrel be heard among you... . My dear sons! Honor and love my wife, who served me lovingly and faithfully in my last years on earth, Do all in your power to make her life pleas-

ant, to do her honor, to show her affection and to comfort her.

Give particular heed to the welfare of your young brothers and sisters, for they are your flesh and blood. The Bukharian Jew whose will I cited above also expressed his wishes on this subject, as follows:

I hereby instruct my three sons to remember that they are obligated to respect one another and to deal justly with each

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other; do not speak deceitfully or in anger and, above all, let no one insult the other either to his face or behind his back. Nor give credence to any gossiper or slanderer who may try to sow dissension among you. Never speak about one another to a stranger, whether for good or evil. Do not take advantage of each other or of any other person. Let your dealings with each other always be honest and above suspicion, and avoid all quarrels. If one of you feels that he must point out to the other the error of his ways, let him do so gently and not in the presence of outsiders. Love each other and let your brotherly affection be seen by the community, so that you may serve as an example of the verse: “, .. and a threefold cord is not quickly broken.”

Ironically enough, this will found its way into the court docket because of charges brought against one another by the three brothers regarding the division of their father’s

estate. Perhaps this bears out the truth of another popular

saying: Happy is the man who leaves behind him either heirs or an inheritance; woe to the man who leaves behind both heirs and an inheritance.

The instructions which Jewish parents incorporate into

their wills for their children’s guidance are usually permeated with ethical ideas taken from the Bible, the Talmud, the Midrash, various rabbinical works on ethics, and from the oral traditions that are transmitted from one generation to the next. Of primary importance are the instructions and exhortations for traditional Jewish learning and for the upholding of Jewish moral values. For example, one

man, a native of Jerusalem, addressed his three daughters thus:

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I hereby command and instruct my daughters, from the depth of my heart, jealously to guard their honor and the purity of their families, and to avoid bringing disgrace upon themselves or upon my memory. It is also my wish that they marry husbands who are natives of this community, and not strangers who have but recently come to settle here,

And I knew of one man, a person who had reason to

be as well acquainted with the path leading to the courthouse as with the street where he lived: he had frequently been indicted, and several times found guilty, on charges of fraud and embezzlement. It was even said of him that at one time he had become a convert to another religion for the sake of money. Then one day his will came to my

notice, and I was amazed by what I read there. Could

these words have been written by a man who had been dishonest all his life? Most of the will was devoted to plans for the future of his children, and many paragraphs contained instructions to his wife regarding their upbringing—“‘so that they may grow up to be decent men

and women and pious Jews. . . .” A large portion of

the estate was entrusted to the mother for this specific purpose. By and large, however, the modern will is devoted to material rather than to spiritual concerns. To put it bluntly, the will is a plan for the distribution of the wealth and property which a man acquired in his lifetime and of which he has the right to dispose as he sees fit. Yet even here, in these “materialistic” wills, we may frequently recognize the influence of the laws and traditions of Israel. Our forefathers taught us two basic principles con-

cerning the relationship of fathers and sons, of testators

and heirs, These Maimonides:

were

most

succinctly

expressed

by

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The sages have ordained that a man, during his lifetime, should not make any distinction between his sons, even with respect to small matters, in order that they might not come to rivalry and jealousy even as Joseph and his brothers (Mishneh Torah, Inheritance: chapter 6, paragraph 13). Secondly: He who gives away his property to a stranger, leaving out his heirs, incurs the displeasure of the sages, even though his heirs do not behave properly toward him... (bid., paragraph 11). [To this second principle he added:] It is of the quality of piety that a pious man should not be a witness to a will by which a transfer of the inheritance from an heir is effected,

even if it be from a son who is not of good behavior to his brother who is a wise man and of good behavior.

In other words: a father should never show partiality

and

practice

discrimination

among

his children,

nor

should he deny benefits to one child in order to give them

to another, or even to a stranger. Even more, a Jew who desires to live up to the standards of true piety is warned not to aid one who plans to disregard this rule. These principles have served as a guiding light for al] Jews, and most testators abide by them, dividing their possessions equally among their sons and daughters so as not to arouse envy, hatred, rivalry and anger after the parent’s death, Whenever a father does find it necessary to distribute his wealth unequally, he includes an expla-

nation and apology for this “discrimination.” Some of these explanations are most beautiful. Frequently they afford a glimpse into the most intimate circumstances of

a family’s life, making us aware of the attitudes of parents toward their children and of the complex problems that sometimes burden a Jewish home.

One mother, for example, left to one of her daughters—an elderly spinster who suffered from a physical defect—a larger portion of her estate than she had given to her other sons and daughters, with this explanation:

Family Relationships Reflected in Wills 355 “T do this because of my grave concern for my daughter’s

future, for she is not as capable of providing for herself as are my other children.” A father divided his possessions among all his children, but left a larger sum to one daughter who was unmarried, explaining that this additional money was to cover her wedding expenses. But, being a prudent busi-

nessman, he added this important qualification: “Should

my daughter marry during my lifetime, she will receive a portion exactly equal to that of her brothers and sisters.” Thus, generally speaking, parents seldom disinherit their children, or show preference for one as against the others, unless there is a valid reason. In that case, the testator takes pains to explain his action. When, however, the discrimination is intended to punish someone who has displeased the testator, there is usually no explanation, and the secret is buried with the dead. I am reminded of one of the most pathetic cases that was ever brought before me in connection with a will that favored a stranger above the testator’s own children. The case itself actually concerned not the probation of a will, but a petition for eviction. The plaintiffs were two broth-

ers and a

sister; the defendant, an old Yemenite woman.

The subject of the action was a dilapidated shack in one of the poorest sections of the city. The plaintiffs charged that they had inherited this two-room house from their deceased father, and that the defendant was occupying it illegally, was paying no rent, and had ignored their re peated demands that she vacate the house. All this was enumerated in the customary legal language of an eviction petition. The old Yemenite woman did not deny that they, the plaintiffs, had inherited this house from their late father, but she argued that the deceased had given her permis-

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sion to live in it free of charge for two years after his death. Since this term had not yet expired, she should not be forced to leave her home. How could she substantiate her story? By the will of the deceased. This will had not been drawn up by a lawyer, nor had it been

certified by a notary public, but had been taken down at

the dictation of the dying man and had been signed by him with his fingerprint shortly before his death. What had prompted the old man to this strange be-

quest, by which he had transferred the rights to his “estate” temporarily from his own flesh and blood to a

strange woman? The circumstances were related to the court by several witnesses: the caretaker of the synagogue

in which the deceased had worshiped during his last

years; a Yemenite teacher who kept a small school in the vicinity; a few neighbors, and the old Yemenite, the defendant herself.

The testator had been about seventy-five years old at the time of his death. During the last years of his life

he had lived, alone and

forsaken,

in this shack which

had been built many years before, when the neighborhood was new. His neighbors knew that he had a family—a married son, a married daughter and an unmarried son— but they had never seen the children visit the old father, nor had they ever heard him speak of visiting their homes. Like a withered tree, he had remained alone in his two-

room house. He went about his ways, humble and dejected; in the synagogue the other worshipers avoided

sitting near him because of the stench that his uncared-for

clothes gave off. At last the synagogue officials banished him from the synagogue proper and assigned him to a spot in the vestibule where he would not offend the other congregants. This corner sometimes served as his lodging for the night, for he had grown so weak that often he could not walk home after the evening prayers. He ate

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no cooked meal from one Sabbath to the next, and even

on the Sabbath only if one of the neighbors remembered

to send him some scraps of meat or a bowlful of soup.

At one point, about a year or two before his death, he

had come close to actual starvation. Days passed when he neither ate nor drank, and everyone saw that his end was approaching rapidly. Then a neighbor advised him to rent out one of his two rooms to a boarder. He did so— and, lo and behold, a new light dawned upon the last days of his life. The boarder was this old Yemenite woman, herself poverty-stricken, but a human being with a generous and sympathetic heart. From the day she entered the shack the old man’s life was transformed, and the house itself assumed a new air. Whenever she cleaned

and straightened her own room, she also took care of his; she aired his bedding, brushed his clothes and saw to it

that he had at least one warm meal every day. She was well known in one of the free communal kitchens and,

when she went there to receive her own food ration, she

would request a second portion for the old man. Slowly his strength began to return. At last even the synagogue

caretaker, at the old woman’s request, permitted him to

return to his seat in the house of prayer. When the old man fell ill again the woman knew no

rest. She managed to obtain little delicacies for him: a

bow! of chicken broth, some fresh vegetables, milk and

eggs. With the help of one of the welfare agencies she

brought a doctor to his bedside, whose obeyed zealously, making sure that the medicine at the proper time. When at that the end was in sight, she found out the children and notified them of their

instructions she invalid took his last she realized the addresses of father’s critical

condition. She herself went to the daughter to plead with

her to come to see the father. But the daughter was not at home and later, when

asked why she had not even at-

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tended the funeral, she claimed that her children had never told her of the Yemenite’s visit. Nor had the sons visited the old father or contributed anything toward the expenses of his illness. And so on and so forth. When the old man felt the approach of death, he asked that the local teacher and the synagogue caretaker be

called. In their presence, as well as in the presence of several neighbors who had come to fulfill the command-

ment of Bikkur Holim (visiting the sick), he expressed the wish to show his gratitude to his benefactress. Then the dying man had drawn up the will by which he had given her the right to live, free of charge, in the two rooms of the shack for two years after his death. But the children, who had not respected their father in his lifetime and had not even extended him the last courtesy of attending his funeral, had no intention of respect-

ing his wishes after his death. Even before the seven days

of mourning were ended, one of the sons appeared to

take possession of the house. Upon being told that it was occupied, he engaged a lawyer and, before the end of

the thirty-day period of mourning, he, his brother and his sister submitted a petition for eviction. When the will was introduced as evidence in court, they refused to rec-

ognize it, showing by their argument their true feelings

toward their father. They claimed that the old man had

not been of sound mind at the time he affixed his finger-

print to the will, and that the document was therefore of no legal validity. The results of the lawsuit do not concern us here. That was a question of law, and we are not now interested in

the dry paragraphs of the law or in the formalities of justice. From

a purely human

standpoint, however,

I

-—_—_-——

doubt that anyone can find it in his heart to blame the dead man for the unusual will he made.

SEVEN

The Power of the Will Most legal documents, once drawn up, create certain fixed relationships between two or more individuals or groups:

they serve to bind the parties and impose specific legal obligations upon them; abrogating or violating the terms

of the agreement without the consent of all parties to it may make the offender liable to payment of damages. This does not hold true in the case of a will, for the will, even after it has been signed, imposes no recognized legal obligations upon any individual; the testator, while he lives, always retains the right to change his will, to add to it, subtract from it, or to nullify it entirely and write a new one in its stead.

This unlimited power in the hands of the testator may

be used by him as a powerful weapon

against those

nearest to him, especially his relatives, his friends and

the members of his household. For once an individual

knows that he has been remembered in another’s will, he

begins to fear that the testator may change his mind and

eliminate him from the roster of beneficiaries. He there-

fore constantly seeks to please and, either honestly or hypocritically, tries to appear to be protecting his benefactor and guarding his interests. This is what school 359

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children call “apple polishing.” The testator, on his part, realizing his own power, makes good use of it by promising rewards and threatening punishments. That is why certain individuals are forever drawing up new wills or adding codicils to old ones, increasing bequests or sub-

tracting from them, transferring legacies from one person

or institution to another. An attorney once told me that one of his clients visited his office at least once every six months to make changes in his will, altering the list of beneficiaries or the nature and size of the bequests, all

depending on the changes in his moods and attitudes during the intervening months.

Sometimes the influence exerted by a will may be amusing. A number of years ago, the following story

circulated widely. A certain prominent man had written his will, by which he left generous bequests to a number of religious and charitable institutions, as well as to certain well known, socially active individuals. Copies of the will were sent to the institutions and to the persons mentioned in it. Needless to say, the reputation of this open-handed man rose suddenly among all those who

now expected to benefit from his generosity—in due

course of time. He was among the first to be invited to banquets and fund-raising affairs; wherever he went he was accorded special honors and was always seated on the dais among the most important guests. For Rosh Hashanah he received countless greeting cards. Institutions vied with one another in bestowing honors and awards upon him. Such was the power of the “contribu-

tions” which this philanthropist had promised them in

his will. At last this honorable man was gathered unto his fathers. The organizations and institutions requested their members and friends to attend the funeral, so as to show

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the deceased the final marks of respect. The funeral procession was an impressive one indeed, and the outstanding leaders of many organizations followed the bier. When the days of mourning were over the will was opened and widely publicized. However, when the time came to take an accounting of the estate of the deceased,

bitter disappointment awaited all those who had been mentioned in the will: the “philanthropist” proved to have been a poor man who left behind him, not wealth,

but debts of no inconsiderable amount. In this case the will was no more than a bad joke, and

caused no one any great material loss. The following

incident—a story taken from everyday life—is a more tragic example of the harm that an irresponsible testator can do. Our “hero” was a young man who thirsted for knowledge, but whose material resources were limited. He then made this suggestion to his young wife: he would go to school, while she would work and support him until his studies were completed. She agreed. He left Palestine to study medicine in a famous European university, and

the devoted young wife lovingly took upon herself the

heavy burden of earning a livelihood. She labored by day and by night as a seamstress, investing all her hopes in the husband who was studying in a far-off country. From her own and her children’s bread she saved what she could to send him his monthly allowance for board and tuition. Friends and acquaintances later testified that she had often gone hungry, while her children had worn torn shoes and threadbare coats, but he, the father and husband, had never known deprivation and had been able to

study to his heart’s content. At last he returned to Palestine a “doctor of medicine.”

Even now wealth was not yet awaiting him, and he still

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depended upon his wife’s support for some time. But she did not complain and continued to bear the burden like a devoted servant. It was only when he had at last established a practice and patients clamored at his door, that

the wife began to feel the full brunt of her woes. Hard work had aged her body prematurely, and she now looked

neglected and worn out. No longer was she the vivacious young woman he had married. Her face was pale, her eyes sunken and dull; the spark of youth had died. And he, the doctor, the elegant, well-dressed gentleman, was conscious of the change, and it angered and annoyed

him: all his dreams had been realized, he had reached

the apex of his ambitions, but he would have to spend

the rest of his days tied to a wife who was not worthy of

him, either in appearance, in manners or in culture. Endless arguments and quarrels ensued. At first they were petty, but soon they developed into serious, farreaching disagreements. Toward the outside world the two maintained a facade of harmony, but inwardly they knew no happiness. As he put it, she “did not understand him.” During this time, however, two more children were born to them, and because of the children, as well as

because of their social position, it never came to a final break; yet everyone knew that this was a house divided against itself. Among their acquaintances one also heard rumors about a “girl friend,” another woman whom he visited frequently. Thus many years passed in suffering and anguish, although there were no financial worries

now.

Then the husband died, and his will was read. He had

left most of his wealth to a young woman, that “girl

friend” whose company he had sought in his later years. To his wife and children he left only crumbs. It is not my intention to recount here exactly what

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steps his widow and his children took to have the will

declared invalid. The question arises: from a human and ethical standpoint, were the woman and her children

justified in seeking to use every means at their command to nullify this will, even though our sages have stated

that it is “a sacred obligation to honor the wishes of the dead”? I venture to say that every upright and sensible person

will answer this question with a brief and simple “Yes!”

EIGHT

Preambles and Summations

Almost every legal document drawn up by a lawyer opens with a preamble. This is not necessarily an integral, bind-

ing part of the document; its importance lies chiefly in

that it informs the reader of the background against which and the purposes for which the document was written. The same is true of wills. These, too, usually open with a preamble or introduction and close with some kind of formal summation. Most introductions follow a more or less standardized formula expressing this basic thought: since no man knows when his last hour may come, it is

every person’s solemn duty to prepare a set of instructions to be followed by his next of kin in the event of his death, lest he leave this world without having put his affairs in order. But there are some preambles that go beyond the merely routine; they present to us the per-

sonality of the testator and his state of mind at the time of the writing of the will.

Jacob opened his last bequest to his sons with these

words:

Gather yourselves together, that I may tell you that which shall befall you in the end of days. Assemble yourselves, and

hear, ye sons of Jacob; and hearken unto Israel your father (Genesis 49.1-2). 364

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Moses, at the beginning of his testament-poem, ad-

dressed the Children of Israel thus:

Assemble unto me all the elders of your tribes, and officers, that I may speak these words in their ears, and heaven and earth to witness against them. For I know after my death ye will in any wise deal corruptly, and aside from the way which I have commanded you; and

your call that turn evil

will befall you in the end of days ... (Deuteronomy 31.28-29). {And further:] Give ear, ye heavens, and I will speak; and

let the earth hear the words of my mouth . .. (Deuteronomy 32.1).

Other examples can be found in the literature of the

Bible (z.e., the testaments of Joshua, Samuel and David) and of the Middle Ages, as well as in the writings of the

rabbis of a later period. Contemporary wills, however,

drawn up as they usually are by professional lawyers, tend to be more and more standardized and impersonal. But there are still some exceptions, and it is these that are of greatest interest to us.

I have already referred to the will written by one of

the best of our pioneer pedagogues and teachers. This will opens with a verse from the Torah: ‘The Rock, His work is perfect; for all His ways are justice; a God of

faithfulness and without iniquity, just and right is He” (Deuteronomy 32.4).

This verse, from the testament of Moses, indicates the

writer’s aim to “justify the ways of God to men,” and

serves as a kind of leitmotif for the entire will. It is followed immediately by a few brief paragraphs that constitute the actual introduction: On Rosh Hashanah of the year 5699 I reached the age of seventy, the term appointed unto man on this earth, And now, though I trust in the mercy of the Creator, and may yet live

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to attain a ripe old age as did my maternal grandmother and her son, my uncle—both of whom reached the age of ninety— since no man knoweth

his end, I have decided to make my

will to dispose of what little wealth I have accumulated. For the sages say that the writing of a will does not hasten death, but serves rather to bring peace of mind to the spirit of an old man. I write this, being of sound mind and with full knowledge of the significance of my words. Praise and thanks be to my Maker, who implanted in my heart the love of learning and

teaching, whereby I was able to serve as a small cog in the mechanism of our people’s rebirth .. . Blessed be the memory of my beloved father and mother, who taught me from childhood to be zealous for our people and our faith; it was their example that fostered my love for our Holy Writings, for the land of our fathers, and for the

Hebrew tongue. My best wishes go also to my many students who are now teachers in Israel as well as in the Diaspora, whom I taught to the best of my abilities, but from whom I in turn learned much. May they succeed in raising generations of scholars, and may they excel me in their knowledge and in their devotion to their sacred task. And may the blessings of a father be fulfilled in my own children. .. . In my days of need and poverty they were niy only comfort and solace. May they live to raise a righteous and blessed generation in our land, and may they witness the consolation

of Zion and of Jerusalem, and the full re-

demption of our people . . . And now I wish to instruct them as to what to do with the little that I acquired by dint of my labors in this land, and how to divide it among all my children...

The final paragraph of a will, the summation, usually

contains the last words and thoughts of the testator that

will be heard by the world. These are most frequently words of prayer, of blessing and good wishes for those dear to him, as well as for the general welfare.

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367

A famous rabbi ended his will with these words addressed to his wife and children: With your permission the bonds are released. I go to be gathered unto my people, and may you go forward to length of days and peace and to deeds of righteousness and goodness all the days of your lives, and may you attain to long life with much grace and blessing. Another will ended thus: ... I beg the forgiveness of all those to whom I have done injury, and may the good and merciful God forgive my transgressions and grant true peace to my soul, Amen.”

Unfortunately, when the time comes to divide the legacy, the words of love and blessing are often disre-

garded by the next of kin, even by sons and daughters.

By their arguments among themselves, by the accusations and charges they bring into court, the heirs desecrate the memory of the dead. For example: An elderly couple left a joint will that

ended with these words:

We earnestly beseech our beloved children to live peacefully with each other and to divide our property among themselves justly and by mutual consent, so as not to cause us—God forbid—any disgrace or sorrow.

Thus the language of the will. But immediately after

the death of the parents, quarrels broke out among the

heirs, quarrels that eventually reached the civil as well as the rabbinical courts. The case dragged on for years. A major portion of the estate was consumed by legal expenses and lawyers’ fees. All that the parents had labored

to acquire went up in smoke and strife.

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In conclusion, I again cite the will of the above-mentioned teacher: May peace reign over you, my beloved children, peace between each other and between your families. Respect the honor of your wives, your husbands, your sons-in-law and your daughters-in-law, and of your children, the small ones as well as those who are grown. May you live without arguments or quarrels, endeavor always to celebrate jointly all family festivities as well as our religious festivals, and may you live to see our people dwell in peace and to witness in your lifetime even greater miracles and wonders than I did.

Such words are indeed a fitting summary of a man and his life’s work.

NINE

The Will in Folklore

In the preceding pages I have discussed the will as rep-

resented in court proceedings, in biblical and rabbinic literature, and in our daily life.

The will also assumes an important position in folk-

lore—in the legends, didactic tales, jokes and riddles that

are part of every people’s cultural heritage. Material of great interest dealing with wills and with judicial decisions involving wills is to be found throughout the ancient literature of Israel; other materia] has been transmitted

orally from generation to generation, and still awaits

collection and publication. There is, however,

one ele-

ment common to all these tales: they are all intended to instruct, and each of them teaches a moral.

Foremost is the will whose sole purpose it is to test,

or to demonstrate publicly, the wisdom and understanding of the intended heir. One ancient legend tells this

story (Ekhah Rabbati):

A man of Jerusalem had traveled to a land far across the

seas. There he felt the approach of death. He of the inn where he was lodged, entrusted him and said: “If my son from Jerusalem performs three wise deeds, give him all that 369

called the keeper all his wealth to comes here and belonged to me.

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If not, give him nothing.” The man died and was laid to his eternal rest. Some time later his son arrived in the city. Now the townspeople had agreed among themselves not to tell the stranger which house was the innkeeper’s. As the son was standing at the gate of the city, he saw a man passing by carrying a load of firewood, He asked the man, “Is this wood for sale?”

The

man

answered,

“Yes.”

Then

the son

said,

“Here, I will pay you for it, but do you deliver it to the innkeeper.” So the man walked on, and the son followed him.

When they reached the inn, the man called out, “Come and take your firewood!” Then said the innkeeper, “I did not tell

you to bring me firewood.” The man answered, “True, you did not, but the man walking behind me did.” Thereupon the innkeeper greeted the son and invited him to enter. This was the first deed. The innkeeper then asked him: “Who are you?” He answered, “I am the son of the man who died in your house.” Thereupon

the innkeeper

ordered

a meal

prepared

for his

guest. Now the landlord had two sons and two daughters.

When the time came for the meal, they placed five roast chicks

before the guest. Then the landlord said to him, “Now do you apportion a serving to each of us.” Answered the son,

“But this is not mime.” Said the landlord, “Nevertheless it is

my wish that you serve.” So the son to the landlord and his wife, then he and one to the two daughters, and chicks. They ate and said nothing. This was the second deed. For the evening meal he served a his guest, “Now apportion a serving

took and gave one chick gave one to the two sons for himself he kept two

stuffed hen and said to to each of us.” The son

answered, “It is not mine.” Then the landlord said, “Serve,

with my permission.” So he began to carve, and he gave the

head of the hen to the landlord, the intestines to his wife, the feet to the two sons, the wings to the two daughters, and the

body of the fowl he kept for himself. This was the third deed. Now the innkeeper said to him, “Is it thus that they serve in your country? The first time that you apportioned the meal I said nothing, but now again you do this?” Then spoke the

son, “Did I not refuse, saying that it was not mine? Neverthe-

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less, my division was just. The first time, you placed five chicks before me. Now you and your wife and a chick—that makes three; your two sons and a chick—again three; your two daughters and a chick—also three; I and two chicks—this too

was three, And so I took no more than my share. Now you gave me a stuffed hen. I gave the head to you, for you are the head of the household; I gave the intestines to your wife, for she bore children in her womb; I gave the feet to your two sons, for they are the foundation and the pillars of your house; I gave the wings to your daughters, for tomorrow they will take wing and leave your house to enter the houses of their husbands;

as for myself, I kept the body that is in the

shape of a ship, for by ship J came and by ship will I leave. Now give me my inheritance, which my father entrusted to you.” Thereupon the innkeeper gave him his inheritance and he departed in peace.

Closely related to the test-will, although somewhat dif-

ferent in form, is the will that is expressed in terms of a

riddle that must be deciphered and interpreted. Such wills also are found in our ancient literature.

The following story is retold in the Sefer ha’ Agadah:

There was once a man who made a will and said: “My son shall inherit nothing until he becomes a fool.” Two great rabbis, Yose bar Yehudah and Rabbi

(Judah ha-Nasi)

went

to consult on this matter with Rabbi Yehoshua ben Karcha. When they reached Rabbi Yehoshua’s house they looked in and saw him crawling on his hands and knees, and there was a long reed in his mouth by which his small son was leading him. When the two rabbis saw this, they hid. Later, however,

they entered the house and discussed their problem with the sage. When he heard the terms of the will, Rabbi Yehoshua

laughed out loud and said, “In truth, that of which you speak has just happened to me.” From this we learn that when a man becomes a father he often acts like a fool.

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In Mi-Mekor Yisroel, M. Berditchevsky cites another

example:

A woman once instructed her daughter in the practice of adultery, saying to her, “If you wish to commit adultery, my daughter, act discreetly, as I did, and your husband will never know; for I have ten sons, and only one is the child of your

father.” Now the husband happened to overhear this and remembered it, and before he died he left instructions that only one of his sons was to be his heir. But he did not say which one, for he did not know whe his true son was.

After the father died the sons began to quarrel among

themselves. One said, “The inheritance is mine!” And another

said, “It is mine!” They came before Rabbi Bena’ah to settle their dispute. He said to them, “Go to your father’s grave and throw stones upon it, until he reveals to you which one is his heir.” Nine of the sons did as they were told and began to pelt

the grave with stones and sticks. But the tenth, who was the

true son, said, “God forbid that I throw stones upon my father’s grave. Better far that I lose my inheritance than that I disgrace my own father!” When Rabbi Bena’ah heard this, he gave all of the inheritance to this son.

The following story was used by the rabbis to illustrate

a point of talmudic law Pkha):

(Midrash

Tanhuma,

“Lekh

There was once a man who traveled to the lands across the

sea, but he had a son who dwelt in the Land of Israel and studied Torah. When the man felt that he was about to die,

he made over all his goods to the slave who had accompanied him, specifying only that his son was to be allowed to choose one item out of all his belongings for himself. When he died, the slave took all his possessions and the written deed, returned to the Land of Israel and said to the son, “Your father

died and left all his wealth to me, except that you may choose one thing for yourself.” What did the son do? He went to his teacher and told him what had happened. The rabbi said to

The Will in Folklore

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him: “Your father was a wise man who knew the law well. Obviously he said to himself: If I leave all my wealth in my

slave’s care, he will steal some and waste the rest; but if I

give it all to him, then he will take good care of it. Now, when you go to the court and the slave shows the deed, do you say to the judge: I want nothing at all except this slave. Then you will own all the propertyas well as the slave.” The son did this, and the court awarded him all the property as well as the slave [in accordance with the rule that what a slave acquires belongs to his master].

Although the moment when a man faces death is hardly

the occasion for jesting, there are a number of popular Jewish stories that reveal a sense of humor even on this solemn subject.

It is told of one man who, lying on his deathbed, declared his last will before the rabbi. Among the rest he carefully enumerated the debts that were outstanding to

him: “Cohen owes me so and so many rubles . . . Levi owes me such and such an amount. ... And don’t forget

to collect the sum of and-So. .. .”

that is coming to me from So-

At this the rabbi interrupted him and asked, “And what of you? Do you owe no one anything at all?”

The dying man smiled and answered, “As for that,

Rabbi, let my creditors worry about it in their wills. . . .” And then there is the classic story of the man who,

feeling that death was near, called his wife and said to

her, “It is my wish that the furnishings of the house be

given to our eldest daughter, Chane’le.” At this the wife

interrupted

him

and

said,

“To

Chane’le? But she has a home full of the best of every-

thing, what does she need our broken-down furniture for? It were better to give it to our younger daughter,

Rachel’le.”

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MAKING

AND

BREAKING

WILLS

The sick man continued, “The bedding, the sofa and the colored bolsters are to go to Sheinde’le.”

Again his wife interrupted him. “Sheinde’le, you say?

But she has found her life’s mate and, thank God, wants

for nothing. Better give the bedding to our Nechama’le, who is none too young and as yet the young men are not exactly fighting over her.”

The man continued with a sigh, “I want our son

Moishe’le to have the store.” Again the woman broke in and said, ““Moishe’le? That ‘jewel’ of ours will ruin the business in no time at all.

Give it to Yanke’le, who will be able to support himself and his family with it.”

Now the testator could contain himself no longer and shouted at his wife, “Woman! What’s going on here? Who is dying, anyway, you or I?” In conclusion, here is an amusing application of the

precept that “it is a mitzvah to heed the last words of the dead.” To this popular saying usage has added the following: ‘‘Even if one be led thereby to transgress against the Law.” In a small] town there was a man who was known not

to put on phylacteries for the morning prayers. When the pious men of the town rebuked him for this, he answered

calmly, “My father, of blessed memory, instructed me,

before his death, always to stay out of quarrels and arguments. Now as regards phylacteries, there is, as you know,

a dispute between Rashi and Rabbenu Tam. Honoring my father’s last wish, I decided not to become involved

in an argument between two such great scholars and will!

therefore put on no phylacteries at all, neither those of Rashi nor those of Rabbenu Tam, until the two come to

an agreement... .”

pral