10) When their bags were filled with grain, including those bags not normally filled with grain, their money was returned to them, presumably to compensate them for the distress of having been accused as spies. However, hiding the goblet in Benjamin's bag was accomplished without anyone becoming aware of it, and the ensuing drama was meant to test the brothers' feelings toward Benjamin as a son of Rachel. The emphasis in the words "my goblet, the silver goblet," stresses that although the goblet is only made of silver, not gold, like most of Joseph's other utensils, it possessed additional qualities which had prompted Joseph to pursue the brothers and conduct a search, despite the fact that as a trinket the goblet was inexpensive.
11) The brothers' argument that they had already proved their honesty by having returned the money they had found in their sacks after their first trip, was accepted conditionally. However, if perchance one of them should be found to have the goblet in his possession, the trustworthiness of that individual would have been destroyed. An accused person can conduct his defense based on any or all of three premises. He can compile a list of all his meritorious deeds which are unknown to the judge and which have a bearing on the matter he is accused of. Secondly, the accused can use logic to convince the judge to deal with him in an understanding manner; thirdly, he can deny having committed the offense he is being accused of, claiming he had become the victim of violence or a frame up.
12-13) Yehudah made reference to all three arguments. Concerning the excellence of Benjamin's character, he said "What can we say to my lord?" He meant that since Joseph knew the true facts, and was aware of the trumped up nature of the charges, any defense would be futile. Concerning argument number two "What could we state?", this means, "We have no merits to offer in our defense;" concerning argument number three, Yehudah said, "What can we say to justify ourselves," seeing the stolen object has been found in our possession. Since the brothers had first said that if one of them would be found with the goblet, he would have to die, Yehudah now said, "The judge has found your servants guilty," servants in the plural, i.e. take us all as servants, since it would be on account of our comment that the one would be guilty of death. At least comfort us by accepting us all as your slaves. Alternately, the word elokim is a reference to God having punished us now for sins we have committed independently of this affair with the goblet. Yehudah hinted that they had once sold their brother as a slave; now they wanted to atone for this by becoming slaves as well as their youngest brother who had become enmeshed in that whole affair because of the wrongdoing of his older brothers. This in spite of the fact that the goblet had been found in his bag, Joseph's reply was that though the thief was indeed guilty of being put to death, it was his privilege to reduce the penalty, seeing that no one else had been hurt by the accused's crime. He would certainly not punish those who had not committed a crime.
"Then Judah came near unto him"
Despite Yehudah's having said previously that there was nothing he could say to alter the fact of Benjamin's guilt, he now attempted a different tack, prompted by the vision of his father's anguish. He appealed to Joseph to open his ears, i.e. to become accessible to what he was about to tell him. He implied that there is no shame attached to a ruler changing his mind, hinting that Joseph was not unlike Pharaoh, the latter also not always keeping his promises, i.e. changing his mind
(Bereshit Rabbah 93). No doubt, when that happened there were compelling circumstances. That is why Joseph also could change his mind without any stigma being attached to him on that account. Yehudah's basic approach was that even when a certain crime carries a certain penalty, administering such a penalty in equal measure to every criminal regardless of any other consideration, could not contribute to the dissemination of true justice. When a weak young man has to submit to the penalty of 39 strokes of the whip, he may well die instead of merely suffering the indignity that the penalty is meant to subject him to. In such cases the attempt to administer justice results in murder. Therefore, Torah law
(Makkot 22) provides safeguards to determine when the lashes have to be stopped to prevent such an eventuality. Also, should administering the penalty prescribed, result in a loss to society that outweighs the good which the offender's punishment would do for society, such punishment may well be deferred. Possibly, the reason David did not punish Yoav for the murder of Avner was for precisely this reason. Maybe this is why God did not punish David in connection with Bat Sheva, though Saul was dealt with harshly for his sin of not killing Agog. This may also have been the reason for the people's displeasure when Saul wanted to kill Jonathan. Since Jonathan was slated to become Saul's successor, the people felt that punishing him would in effect be punishing them (Samuel I Chapter 14). Also the plea of the woman from Tekoah for allowing Absalom to return to Jerusalem may have been prompted by similar considerations (Samuel II Chapter 14). A third reason for tempering punishment though deserved, is that the penalty in question is only one example of a variety of penalties applicable. Murder, whether intentional or unintentional is punishable by death or exile respectively, and the Torah repeatedly stresses that converting the penalty to a fine or any other type of punishment is strictly forbidden (Numbers Chapter 35 and elsewhere). From this it follows that crimes other than murder, lend themselves to a variety of punishments, the particular penalty to be determined by the judge.
14-15) Yehudah describes that Benjamin's penalty deserved to be altered for all the reasons listed. We have already raised the question how Yehudah could have had the audacity to claim that Joseph had asked about their father, when in fact he had not. Also, Yehudah's claim that he had told Joseph that Benjamin's separation from his father would lead to his death, can nowhere be found. Obviously therefore, Yehudah reconstructed their previous encounter as having resulted in the equivalent of all these questions, though they may never have been articulated in so many words. The accusation of their being spies, irreputable people, had forced the brothers to reveal that they were people of good repute, all of one family, sons of one father, thereby implying that they did not share the same mother. They had revealed that their remaining brother was the sole survivor of his mother's children, and therefore by implication, that his father leaned on him especially. Since their father had twelve sons, he was presumably an old man by this time. Although Joseph was aware of all this, he had insisted on Benjamin coming to see him. Yehudah continued that all the brothers had been imprisoned because they had refused to send one of them to bring Benjamin down to Egypt, and that they had only consented in the end, because Joseph had made it an issue of life and death by implication. When Joseph had said that he wanted to set eyes on Benjamin, the brothers had assumed that his intention was completely above board, whereas now it turned out that he wanted this spoiled young man as a slave, a task that Benjamin's previous lifestyle had not prepared him for, and which might result in his death.
Secondly, Joseph was to consider the effect Benjamin's disappearance would have on his aged father, who would never survive that. Surely Joseph had no quarrel with their father that he should wish to punish him also.
Thirdly, the nature of the crime was such that Joseph had latitude to vary the penalty; therefore, Yehudah asked to be allowed to serve his brother's sentence, since he was anyways much better suited to perform the tasks a slave would be expected to perform. At any rate, he could not return to face his father in view of the fact that he had guaranteed their brother's safe return. The entire journey to Egypt had only been due to Yehudah's insistence. Moreover, if he were to return to Canaan minus Benjamin, he would be forced to witness the death of his father from anguish.
