This article originally appeared in the Jewish Free Press, Calgary

Hollow Victories*

Whether the headlines are about politicians escaping impeachment by the skin of their teeth, or about a Hollywood celebrity's narrow brush with a prison term, you have probably been made aware recently of the exasperating gap between real innocence and a legal verdict of not guilty.

This all-important distinction is aptly illustrated by a story from the Talmud about the Babylonian sage Rava (Nedarim 25a). Rava once adjudicated a litigation between a creditor and debtor. The defendant declared solemnly that he had already returned the sum; and in keeping with the accepted procedure, Rava imposed a judicial oath on him. However, this debtor devised a clever ruse to beat the system. He brought a rod, which he had hollowed out and stuffed with the disputed coins. When the time came for him to take the oath, he hobbled into the courtroom on his precious cane. Because Talmudic law demanded that oaths must be administered while holding a Torah scroll, he casually handed the cane to the complainant while he was reciting the oath.

In this way, since the creditor was (albeit unknowingly) in physical possession of the money while the debtor was swearing that he had returned it, the oath was technically a true one, even if it the circumstances of the case rendered it completely fraudulent.

Fortunately, the plot came to light when the plaintiff lost his temper and smashed the cane, causing the telltale coins to fall on the floor.

Rava's cane (kanya de-Rava) thus became a proverbial talmudic prototype for a plea that is literally accurate, but deceptive in its intent. In order to avoid such trickery, the rabbis required that the court issue a declaration, before administering judicial oaths, that we are not imposing this oath on you according to your understanding, but rather according to our understanding and that of the court. Nevertheless, some sages in the midrash were so apprehensive about the potential for abusing the system that they discouraged the swearing of all oaths, even those that were entirely true and sincere.

The earliest documented appearance of the hollowed cane motif predates Rava by several centuries, and can be traced to a treatise by a Roman grammarian named Konon who lived during the first century B.C.E. In Konon's account, a traveler from Miletus, fearing the unstable political situation at home, left property with his host in Sicily for safekeeping. When the danger had passed, and the traveler asked the host to return his property, the latter insisted that he had already done so. He melted down the gold and poured it into a hollowed-out rod, pretending that he needed to lean on it for support. As in Rava's case, the culprit handed it to his accuser while he took the judicial oath. The indignant victim angrily hurled the cane to the ground, lamenting the lack of integrity in the world. When the cane broke and the culprit was exposed as a fraud, he hanged himself in disgrace.

A tradition reported by the Babylonian Jewish sages in the medieval era introduced a significant new factor into the story, one that was not mentioned in the talmudic or midrashic accounts. A ninth-century work speaks of a wondrous chain that was found in the courtrooms of earlier generations. The divine name was engraved on it, thereby imbuing it with the ability to serve as a veritable lie detector, capable of distinguishing between true and false oaths. Litigants who swore oaths in court were asked to take hold of the end of the chain. Those who were telling the truth were able to touch the chain; but it would always propel itself beyond the reach of the liars.

The hollow cane stratagem managed to confuse even that marvelous chain, bringing its powers into disrepute. Rav Hai Ga'on observed that the severe oaths that were administered during Talmudic times, which required that a holy Torah scroll be held during the ceremony, had been discontinued because of the proliferation of clever liars who were adept at twisting the facts without technically perjuring themselves. The episode of the gold-filled cane and the polygraph chain contributed to the eventual abandoning of the older procedure.

An Islamic legend preserved a similar tradition about the miraculous chain. According to the judge and historian Mujir ad-Din al-Hanbali, the chain was situated in Jerusalem during the reign of King Solomon, and it was in its honour that the Qubbat al-Silsilah, the dome of the chain, was constructed in front of east entrance to Dome of the Rock on the Temple Mount. In the Muslim tale, the chain was suspended between heaven and earth, and allowed the judge to distinguish between truthful and the deceitful parties.

On the day when the hollowed rod was brought into courtroom, the observers were amazed to see that both litigants were able to place their hands on the elusive chain, in spite of the fact that their claims were mutually contradictory. The defendant could truthfully claim he had returned the money as long as the cane was in the plaintiff's hands; while the plaintiff could honestly deny it after he had returned the cane to the defendant. From that day onward, the legend concludes, the chain vanished because of evil human nature and cunning deceit.

In an ironic twist, a medieval Christian version of the gold-in-the-cane story cast a Jewish moneylender as the innocent victim of duplicity. When the Jewish creditor sued his Christian client for not repaying his debt, the debtor resorted to the coins-in-the-cane hoax.

In that version, as told by the thirteenth-century hagiologist Jacobus of Voragine, the trickster was overcome by a sudden weariness as he was walking by a crossroads on his way home from his successful court appearance. A speeding wagon ran him down, killing him and causing the cane to spew forth its treasure. When the Jew happened by the scene of the accident, he was so impressed by this instance of divine intervention that he refused to benefit from the fruits of his vindication. He vowed that he would take back his money only if the swindler were restored to life through the grace of St. Nicholas. As is to be expected in a Christian legend, this is precisely what ensued: the corpse was resurrected, and the Jew submitted eagerly to baptism.

This tale in praise of St. Nicholas enjoyed widespread popularity in the literature, art and architecture of medieval and renaissance Europe. One of the best know versions appears towards the end of Cervantes' Don Quixote(2:45), when that shrewd Sancho Panza, now ruler of the island of Barataria, presides over just such a dispute. As far as I know, Cervantes' version is the only one where the judge figures out the hoax by himself, after his suspicions have been aroused by the defendant's unusual conduct in handing his cane to the plaintiff. Sancho Panza also acknowledges that he had once heard a similar story in the preaching of his village curate.

The universality of this story should not surprise us, I suppose. As much as the law strives to establish norms and procedures to determine the truth, there will never be a lack of clever swindlers who will figure out ways to subvert them. Such characters can deftly weave their way through the intricate grey zones that separate legality from immorality--even if they sometimes need to support themselves on hollow canes.


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A Meeting-Place for the Wise
A Meeting-Place for the Wise

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My email address is: eliezer.segal@ucalgary.ca

 

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