As I stretched myself comfortably on the bed in Pension Kegel in Zermatt, I kept musing on my days with law firms and in universities. The foundation was laid when, some three years after our initial encounter, Jacob Keren accepted me as a trainee. During the years I had spent with him, I learned much about the law and life in general. By the time I left Israel, I had – under Keren’s guidance – developed a penchant for rescuing losing cases. That gift stood me in good stead during my years in Wellington, in Melbourne and in Singapore. All the same, my greatest success as a lawyer remained the trial of Josephus Flavius in TA.1. Smilingly, I allowed myself to stray back to it.
Shortly before the day set for the hearing, the ‘parties’ held a short pre-trial conference. Pilkin had by then finalised his indictment and declared his willingness to abide by the current rules of procedure and evidence – as understood by us after numerous visits to the courts. Both the conference and the ensuing preparations went well. But two weeks later, we suffered a blow.
On our way to a new Pita Falafel stall, Pilkin told me that he had bad news: “We’ll have to finish our case by noon!”
“But why – we were told we had the afternoon for argument!”
“We still have it. But that football match between Tel Aviv and Haifa, the one that had been deferred because of the torrential rain, is now taking place on the day of our trial!”
“So what?”
“So all the chaps will run away during the lunch break and when they are gone the Girls’ll lose interest!”
“Shit!” said I. “So what’s to be done? You have four witnesses! And we don’t start until 10.00!”
“So let’s start at 9.00 and try to cut ourselves short!”
“Oh, all right. But I still don’t see why some people prefer the sight of two unkempt teams chasing a filthy ball to the intellectual delights of a historical trial? Pfui.”
In the end, though, the constraint of time had a beneficial effect on my cause. After some wranglings, Pilkin agreed to call only three witnesses, one of whom would deal with both the charges of cowardice and unreliability. I, in turn, declared my intention to concentrate on the treason count. The others appeared trivial in comparison.
TA.1’s function room was packed that morning. Some of the parents, who had come to watch the performance, bestowed supportive glances on me. My solitary figure – pitted against Pilkin’s full team – invoked their sympathy.
As soon as the “judges” took their seats at the elongated desk placed on an improvised stage, Pilkin opened the case. He read out the indictment and, as agreed, confined his opening speech to a description of the basic facts and the nature of the proceedings. I, in turn, confirmed that the defence was not calling any witnesses and advised that the main battle field was the treason issue.
Pilkin’s first witness dealt with the charges of poor military leadership and cowardice levelled against Josephus. In response to my questions, the witness conceded, that the other Jewish generals were equally poor soldiers. He then admitted that Josephus had not been guilty of cowardice in action. Josephus had put up a sturdy defence in Jodefet. It was sad that his courage had failed him in the hideout after the battle was over.
“But weren’t some other leaders of the Revolt taken alive?” I asked.
“Some were!”
“So not everyone committed suicide when all was lost?”
“True!”
“And is a soldier expected to kill himself when the battle is lost? Is every prisoner of war a coward?”
“I wouldn’t say that,” retorted the witness awkwardly. “But think of the heroism of our fighters in Masada!”
Pilkin nodded, smirking broadly. Little did he suspect that, unwittingly, the witness had laid the first brick in a structure I intended to erect for the defence. To clarify the issue I asked the witness to narrate the story of that last episode in the great revolt. Although the events were well known, everybody listened eagerly as the dramatic story unfolded once again.
The barren plateau of Masada, visible on the horizon from as far as Ein Gedi on the Dead Sea, had been turned into an impregnable fortress by Herod the Great, the last King of Judae. Under the vigilant eyes of Greek architects, his work force erected huge walls, encircling the rock formation which was, in any event, separated by natural crevices and deep ravines from the parched valleys far below it. In addition, Herod’s engineers constructed huge water reservoirs and vast granaries.
During the great revolt, the stronghold became the quarters of an extreme sect led by Eleazar ben Ya’ir. His group of Sicarii used the prolonged hostilities in the Galilee and the siege of Jerusalem to replenish their supplies and to reinforce the mighty walls even further. When the rest of the country had fallen, majestic Masada was still unscathed and unaffected.
From both a military and an economic point of view, Masada and the rebels stationed on it were of no significance. The trade routes to Egypt were not endangered. Practically, it would have made good sense to leave the hermits to their own devices. Under Roman law, however, the commander of the army was not entitled to celebrate his triumph until the enemy was vanquished. So Masada had to be taken.
For months the Roman army besieged the rebels. Again and again, the attackers were repelled. In the end, the Romans filled one of the deep crevices with gravel and rocks, constructed a ramp alongside the fortification, placed a battering ram on it and, despite the courageous resistance of the Jewish fighters, managed to topple the wall. They then burnt down a new wall lined with wood, which the defenders had erected during the siege and which could have withstood the shattering blows of the ram.
The end was now inevitable. To save his followers from captivity in Rome, Eleazar persuaded them to commit mass suicide. With the exception of two matrons, who hid themselves in a cave, all men, women and children perished at their own hand. When the Romans arrived next morning for the final showdown, they were confronted by corpses!
“So that was the final act of heroism?” I asked the witness, who had moved the hearts of all those present with his well balanced and lucid narrative.
“It was!”
“How about the two women who hid themselves in the cave?”
“I don’t approve of them. Still, in such a desperate hour everyone has a right to make his own decision.”
“I agree,” I said with conviction. Then, emulating Jacob Keren, I concluded: “no further questions.”
Pilkin’s second witness provided further ammunition for my, as yet undisclosed, line of defence. His main accusation was that the long dead historian had used his great work as a vehicle for self aggrandisement. In his description of the campaign in the Galilee, Josephus had made extravagant claims about his own courage and attainments and had taken each opportunity to settle scores with Galilean leaders who had opposed him.
The assertions being true, I did not dispute them. Instead, I induced the witness to admit that Josephus’ War of the Jews and the Romans was not a mere ego trip. Josephus loved his people. His admiration for their courage and endurance were the main threads running through the work.
“Let us assume that a stranger, with no prior knowledge of the conflict, chanced on Josephus’ book. What would he think of the Jewish rebels?” I wanted to know.
“He’d consider them foolhardy and perhaps even fanatic!”
“Would he think they were cowards, doormats and people without principles?”
“Most certainly not! He’d be convinced they were men of immense courage and devotion!”
“So Josephus did not ridicule or belittle our nation, did he?”
“We do not accuse him of that!”
“Suppose Eleazar had lived to tell the tale. Would he have given a more favourable account of our people as a whole?”
“I don’t think so. Still, Josephus set out to aggrandise himself.”
“Thank you. No further questions.”
Like Pilkin and myself, the third witness came from the humanist stream. His keen interest in history and philosophy rendered him a force to be reckoned with. I listened attentively as he testified that Josephus’ surrender constituted treason. The ‘accused’ had failed to honour his suicide pact with the other survivors in the cave and, in all probability, had cheated when they drew their lots.
“Did he act as a traitor in any other situation?” asked Pilkin.
“He did indeed!”
“Please tell us!”
“During the siege of Jerusalem, after the fall of Jodefet, the Romans sent him, under a flag of truce, to persuade the besieged to surrender.”
“No further questions,” said Pilkin.
I knew I had to tread carefully. Feeling my ground, I induced the witness to confirm that Josephus had not committed any act of treason during the siege of Jodefet. The witness then conceded that Josephus’ attempt to persuade the defenders of Jerusalem to capitulate might have been motivated by his realisation that defeat was inevitable.
“So, all in all, your charge of treason is based on one single act – Josephus’ surrender after the fall of Jodefet?”
“Basically. But there is more to it than that. Josephus’ airs and orientation must be taken into account!”
“They add fuel to the fire?”
“Precisely!”
“How important is that orientation,” I saw my chance.
“Very important. It throws light on the accused’s motivation.”
“But suppose someone else, say Eleazar, had been taken alive due to a coincidence?”
“But, surely,” the witness sneered, “somebody like Eleazar is above suspicion!”
“And why?”
“His speech speaks for itself. A man who could use his words – express his sentiments in such a manner – isn’t and cannot be a traitor.”
“You are satisfied of that,” I asked, hiding my jubilation.
“I am. To demonstrate what I mean, let me read Eleazar’s speech out.”
“Is that necessary?” asked the Chief Justice, a model student with a bent for mathematics, who kept glancing anxiously at his watch.
“I have no objection, Your Honour,” I assured him. “Actually, it is still early in the day. I’m confident everybody will be in time for the great football match.”
“Very well,” he agreed, sheepishly.
Like everyone else in the room, I was moved by the speech, in which Eleazar persuaded his followers that death was preferable to the humiliation of captivity and to life as slaves in Rome. In their situation, Eleazar asserted, suicide was the only honourable course left.
When the witness finished reading out the speech, I asked: “A man able to compose this speech cannot be a traitor – you agree!”
“I do, indeed.”
“You have read the speech many times?”
“I have!”
Knowing I was at home, I heaved a sigh of relief. “Kindly close the book,” I told the witness.
“As you wish,” he retorted, bewildered.
“Now, please recite the speech!”
“What?”
“I don’t see the object,” intervened the Chief Justice, equally startled.
“I think I get the drift,” Shosh stepped in. “Let the witness proceed!”
The Chief Justice shrugged. The witness, in turn, squirmed but, at long last, admitted: “I can’t! It’s far too complex and long.”
“I don’t blame you,” I assured him. “I too have read it many times; but I can’t repeat it. So, please tell me, how come we have this speech?”
“I don’t understand!”
“You read it out for our benefit – what is the source?”
“It’s printed in our history book!”
“But how did it get there?”
“How do I know?” protested the witness.
“Have a look at the footnote in your text! What does it say?”
“The War of the Jews and Romans, book VII chapter 8, s. 6.”
“So the source is Josephus’ great work?”
“Well, yes!”
“And who – would you say – composed this magnificent, patriotic, speech?”
“Eleazar – surely?”
“But Eleazar and all his men perished by their own hand!”
“But those two women who saved themselves! They told the tale!”
“But how could they recall and repeat this highly complex and elegant speech?”
“Perhaps they had particularly good memories?”
“But you yourself are renowned for your excellent memory and you have read the speech many times. Yet you can’t recite it. Do you really think that two terrified women, anxious to save their own skins, were in a better position than us to memorise and repeat it?”
“Perhaps just the gist of it?”
“Who then composed the present version, which moves the hearts all of us: the speech we consider an epitome of faith and courage?”
“How can I tell?”
“Think,” I raised my voice. “Josephus Flavius wrote in Greek and adhered to the Greek models of historical books. True?”
“True!”
“And who composed the speeches in most Greek histories? Thinks about Pericles’ speech in Thucydides’ work. Who composed the speech?”
“I suppose the author?”
“So who composed the great speech of Eleazar in the version that has come down to us – the magnificent speech you just read out – please think and be fair!”
“In its present version,” the witness capitulated, “Josephus Flavius.”
“And you have said: ‘A man able to compose this speech cannot be a traitor’!”
“I meant the man who delivered the speech. But yes: I said so.”
“Don’t you think that the fact that Josephus was able to compose this wonderful speech is circumstantial evidence of his real orientation?”
“I have to agree with you.”
“So doesn’t he, in the very least, deserve the benefit of the doubt, especially as the evidence against him is purely circumstantial?”
For a while the witness stood there, looking irresolute. He was about to answer, when Pilkin rose to his feet. “Your Honours,” he addressed the Judges in the legal jargon we had picked up in the courts, “my Learned Friend has shown that the evidence concerning the treason charge brought against the accused is not clear cut. It is equivocal. The prosecution takes the view that a man should not be convicted of a serious crime, like treason, unless his guilt can be proved beyond reasonable doubt. The defence has proved that this is not so in the instant case. We have, therefore, decided to withdraw the charge.”
“Very well,” said the Chief Justice in a resigned tone, following a hushed consultation with the two other judges.
Both Pilkin and I made short closing addresses. By 11.30 the trial was over. The Court found Josephus guilty of the three remaining charges and undertook to deliver its grounds in writing.
The school’s usher – attired in a uniform befitting the occasion – announced the proceedings were closed. As soon as the spectators milled out of the hall, I stepped over to Pilkin’s corner and thanked him for his fair minded conduct.
“Splendid performance, Bushi,” he countered. “Congratulations: one day you’ll be a great lawyer. But enough of that. Why don’t you come with us to the match?”
“You too …” I started.
“… Brutus? No, just a football fan! And it’s fun, Bushi. I’m sure you’ll enjoy it!”
“How are you going to get to the stadium?”
“Our greengrocer is giving us a lift. So how about it?”
“I’d love to come,” I said.
All in all, I have to concede that the great football match, attended by all the boys including the ‘Chief Justice’, was enjoyable and, in its own way, exciting. I was amused to see how the seriously minded members of TA.1’s ‘Bench’ and of the ‘Prosecution’ cheered enthusiastically when either party went on attack or scored a goal. The goalkeeper, in particularly, was awarded ovations whenever he managed to stop a bombshell. I sensed that the opponents, too, had high regard for the opposition’s defence.
Most spectators were either young men and women or entire families from different stations in life. As I looked around, my eye caught Jacob Keren, who was sitting in the VIP zone beside his wife and daughter. He was in shirt sleeves, plain trousers and wore a pair of spectacles lighter than those he used in court. He, too, waved his arms vigorously and showed his plain delight at the players’ skill.
Another aficionado sitting in the VIP zone was the very judge before whom Keren had argued the case heard by Pilkin and myself. Two of the venerable teachers of TA.1 were also present. Yet another attendant was the President of a charitable organisation – a fine lady in her mid-fifties.
All were gesticulating widely as they followed the onslaught of the two teams battling each other in the field. And – according to their respective affiliations – they cheered loudly and enthusiastically to support their respective protégés. To my own surprise, I, too, got carried away. It suddenly downed on me that I had become a member of the crowd.