Jacob Waley (1818-1873): Presidential Address

<plain_text><page sequence="1">Jacob Waley (1818-1873)1 By Bertram B. Benas, c.bje., ll.m., b.a. IN the eleventh Lucien Wolf Memorial Lecture delivered on the 17th April, 1947, Dr. Arthur L. Goodhart, k.b.e., q.c., now Master of University College, Oxford, then Corpus Professor of Jurisprudence in the University, took for his subject "Jewish Contributions to Anglo-American Law", which was subsequently expanded to a mono? graph under the title "Five Jewish Lawyers of the Common Law." The term Common Law in this behalf was used by the Lecturer in its widest sense so as to include the basic principles of the legal systems of England, the British Dominions and Colonies, and the United States of America, so far as they have adopted the principles of the Common Law of England as the foundation of their law. It does not comprise Scotland, a very few of the British territories overseas, and a small portion of the United States. That it was used in this sense is proved by the fact that, of the five Jewish lawyers described, Dr. Goodhart included Sir George Jessel, Master of the Rolls, who was the very embodiment of the system of Equity, whose principles formed the foundation of the law as administered in the Chancery Courts, as contrasted with Common Law in the narrower sense as administered in the Courts other than those, in general, of the old Courts of Chancery. He included some distinguished American exponents but all, whether English or American, were advocates who had outstanding careers either in the sphere of advocacy or the judiciary, or of both. Restricting the number to five, it was inevitable that some who could have claimed to be entitled to inclusion in a collec? tion of eminent lawyers in the Anglo-American range would of necessity be excluded by this limitation, and attention to this was called by Lord Cohen who, in his Presidential Address, delivered before the Jewish Historical Society of England on the 3rd November, 1947, entitled "Levi Barent Cohen and some of his Descendants" observed that "there was one great English lawyer of the Jewish faith to whom Professor Goodhart had not referred?the late Rt. Hon. Arthur Cohen, q.c." and part of his Lordship's Address was devoted to the salient features of the life of that eminent Queen's Counsel.2 Had the range been larger, a strong claim for inclusion could have been made for Jacob Waley, Conveyancing Counsel to the Court of Chancery, one of the most eminent conveyancers of all time, a contributor of authority to the literature of conveyancing, and, for a period, holder of the Chair of Political Economy at University College, London. Of all branches of the legal profession the least known to the general public is that of Conveyancing Counsel, usually termed for short, Conveyancers. Although in a more extended sense the latter term could be applied to members of the solicitor branch of the profession who devote themselves more particularly to this sphere, yet, in the strictest sense of the term, Conveyancer is more generally appropriated to those members of the Bar who, either exclusively or mainly, devote themselves to conveyancing.3 Lord Justice Fry, in his "Studies by the Way" at p. 107, chapter 5, entitled 1 Presidential address delivered before the Jewish Historical Society of England on 13th November, 1952. 2 In the printed version of Dr. Goodhart's Lecture there is an ample note relating to Arthur Cohen, q.c, in addition to the reference in the text, observing that his career was predominantly forensic. Lord Cohen of Walmer was appointed a Lord of Appeal in Ordinary in 1957. 3 Sir Frederick Pollock ("Remembrances of an Ancient Victorian" entitled For my Grandson,) referred to two former Conveyancers who "unknown to the world at large, were and are in high honour in the comparative seclusion of Lincoln's Inn, where a small body of specialists grapples with the intricate problems of our law of property" (p. 35). 41</page><page sequence="2">42 JACOB WALEY (1818-1873) c Conveyancing", observed, "few people know what conveyancing means; it means primarily the art of carrying lands and other property over from one person to another . . . not only is conveyancing an art?it is a fine art. The art, as it exists in England, is practised by lawyers of many degrees?the country solicitor practises it and draws the deeds which convey the field or the house from the seller to the purchaser, young barristers who frequent the Courts also practise it; but in its purest and its highest development it is the function of a small set of learned lawyers, who are chiefly to be found in London, devoting themselves exclusively to this branch of their profession in Chambers ... in these rooms they sit, day by day, and receive visits from solicitors or their clerks who bring to them the more difficult problems of the art to solve and the more difficult of the writings to prepare, and there they pursue their learned toil free from the noise and the wit of the courts and remote from the ordinary pursuits of their fellowmen." It is interesting to note that Lord Justice Fry refers to what he regards as "the earliest recorded transfer of land to be found in the history of man, the first piece of conveyancing practice in the books?I mean the purchase by Abraham of the field and cave of Mach pelah?what a stately and graphic narrative it is !" (p. 112). The description applied by Lord Justice Fry to the character of the narrative is hardly one which is applicable to the volumes of Conveyancing Practice at the present day, but to our Society in parti? cular this parentage of Conveyancing Practice has an especial interest. To add to that interest he observes "the art of conveyancing has come in between Abraham and Jeremiah". (See Jeremiah XXXII 6-15). Sir William Holdsworth, in his Historical Introduction to the Land Lawy observed (at p. 299) that "in the middle ages a class of professional conveyancers had not arisen. During the sixteenth and seventeenth centuries the growth and perplexity of the law caused the beginnings of the growth of such a class. In the course of the eighteenth century the continued increase in the complexity of conveyances . . . made the convey? ancers a class very much apart from other legal practitioners ... at the beginning of the nineteenth century an intimate knowledge of the law of Real Property [that is the law relating to land] was almost confined to a comparatively small number of eminent con? veyancers, and . . . the majority of lawyers, barristers, as well as judges, depended for their information upon the opinions and writings of these conveyancers." Joshua Williams, one of the most eminent conveyancers of his time (1813-81), in his Letters to John Bull Esq.?Lawyers and Land Reform devoted one of them to con? veyancers. The substance of the letter is devoted to the writer's complaint that this secluded and exclusive branch of the profession is hardly known to the public and its contribution to the upbuilding of English Law has not met with the recognition which he thought it merited. He observed (p. 39) that "conveyancing may fairly be called the literary branch of the profession of the law. By far the greater part of legal text books are written by conveyancers. The custom of conveyancers has great influence on the decisions of the Courts of Justice, and has been spoken of with great respect by Lord Eldon and other eminent judges. Yet, these men, being quiet in their habits, confining themselves to Chamber practice, and loving their art for its own sake rather than for the fame which stimulates their brethren are seldom heard beyond the bounds of the profession." He further observed (at p. 43) that "as a conveyancer must cease to practise if he ceases to draw Deeds, he cannot be made a Queen's Counsel" and pleads that "surely the rank might be given without the title, or rank and title without the obligation of complying with the etiquette." To this day conveyancers, as a general rule, do not "take Silk", as the phrase goes, nor have they the formal status at the Bar of those</page><page sequence="3">JACOB WALEY (1818-1873) 43 who are appointed Queen's Counsel. Very rarely conveyancers apply to be appointed and, when appointed, either the appointment is made at a time when they have virtually ceased to practise, for as Joshua Wilhams pointed out, their conveyancing practice must inevitably be at an end since they cannot practise as conveyancers if they are Queen's Counsel, or they have intended to upbuild a Court practice with some relation to the spheres of Law with which their former conveyancing practice was associated. Joshua Williams was one of those exceptions, yet appeared but seldom in the Courts after taking Silk. Of this group of men Jacob Waley was an exemplar, both illustrious and characteristic. Jacob Waley was the eldest son of Solomon Jacob Levi (who adopted the name of Waley) of Devonshire Place, London, and was born at South Street in the City of London, on the 17th March, 1818. Solomon Jacob Waley was the son of Jacob Levi and Elizabeth Waley.1 Solomon Jacob Levi of . Stockwell, Surrey, was granted on the 8th September, 1834, a licence for him and his issue by Rachael, his wife, second daughter of Nahum Hart of Goodman Fields, Middlesex, by Jane, his wife, eldest daughter of Samuel Waley of the same place, to take and use the surname of Waley in lieu of Levi and to bear the arms of Waley. Samuel Waley was a Day an (Judge of a Court of Jewish Law).2 Jacob Waley was educated at Neumegen's Private School and later at University College, London. In 1839, the first year in which the degrees were granted by the University of London, Waley graduated as Bachelor of Arts, obtaining a University Scholarship in Mathematics, the First Place in Classical Honours, the following year becoming Master of Arts?the first of the University of London to receive that degree?and gaining the Gold Medal for Mathematics. He had become articled to Mr. Price, a member of a firm of Solicitors, on whose advice, after a year in Articles, he abandoned them to prepare for call to the Bar. He entered Lincoln's Inn as a student two years before graduating, namely on the 3rd November, 1837; five years later, on the 21st November, 1842, he was called to the Bar. The history of the circumstances attending his pupillage affords a warning (unnecessary to members of the Jewish Historical Society of England) that data must be verified before they can be accepted as authentic. No doubt due to some copying or printing error in an earlier publication, the Jewish Encyclopedia, in its account of Waley, states that he was a pupil of Holt, afterwards Lord Chief Justice. Holt was born on the 30th December, 1642. He was appointed Chief Justice of the Queen's Bench on the 17th April, 1689. It is not difficult to calculate the age at which Holt would have been when Waley was alleged to have become his pupil, always bearing in mind that he could only have become a pupil at a date prior to Holt's appointment to the Bench, to say nothing of surmounting the difficulty caused by the date of the birth of Waley. The fact is that Waley became a pupil of Sir John Rolt who ultimately became a Lord Justice (not a Lord Chief Justice). John Rolt was born on the 5th October, 1804, 1 See Records of the Franklin Family by Arthur Ellis Franklin, 2nd Ed., 1935, p. 85. 2 See Anglo-Jewish Notabilities, Jewish Historical Society of England, 1949, pp. 70, 125-126. In a letter to the present writer dated 27th October, 1952, the late Albert Hyamson wrote as to the origin of the name "Waley". One conjecture has been that it was an adaptation of the Teutonic name "Walsch" the equivalent of "Walsh" or "Welsh". On the other hand, too, it had more recently been shown that there is a Bohemian Jewish name "Wehle", of which Waley would be simply an Anglicisation. (See J. H. S. Miscellanies, Vol. V.) "Wehle" however, may be a variant of "Wahl". The latter might point to an association with the well-known "Wahl" family, as to which reference may be made to "Genealogical Notes upon the Family of Baron Henry de Worms, some time Member of Parliament for East Toxteth (Liverpool), later Lord Pirbright", by the present writer?Transactions of the Historic Society of Lancashire and Cheshire, Vol. 91. p. 143 (1940).</page><page sequence="4">44 JACOB WALEY (1818-1873) becoming a clerk to a Proctor in Doctors' Commons in 1826 (the branch of the Law then concerned exclusively with Ecclesiastical Probate and Admiralty Law) and in 1833, joining the Inner Temple, was called to the Bar on the 9th June, 1837. Rolt attached himself to the Chancery Bar and was made a Queen's Counsel in 1846. In 1866 he was appointed Attorney-General and in 1867 was appointed a Lord Justice of Appeal. Before Rolt took Silk Waley became his pupil and from him must have acquired a sound knowledge of the practice in Chancery which would stand him in good stead in his cnvisagement of the Law of Property and the Practice of Conveyancing. He also became a pupil of Lewis Duval. "Probably in no sphere in the Law does tradition count for so much in practice as in the sphere of Conveyancers, and in no sphere of the Law does practice crystallize into accepted law to the same extent as in conveyancing."1 This aspect of tradition is one which has an especial appeal to Jewry. The chapters of the Mishna known as "The Chapters (or Ethics) of the Fathers" commence, it will be recalled, by a narration of the succession in Jewish tradition in the Law, dating back to the law-giver, Moses. "Moses received the Law on Sinai and handed it down to Joshua, Joshua to the Elders, the Elders to the Prophets, and the Prophets handed it down to the men of the Great Assembly."2 A similar principle obtains in the history of Conveyancers and Conveyancing. Lewis Duval, Waley's Master in the Law, son of John Duval of the City of London, was born at Geneva in 1774, went to Trinity Hall, Cambridge, and was elected one of its Fellows and was called to the Bar by Lincoln's Inn in 1804. For two years Duval was a pupil of Charles Butler. Charles Butler, by common consent one of the foremost conveyancers in the history of English Law, was born in 1750, descended from the Butler family of Aston-le-Walls, and Appletree in the County of Northampton; his uncle was Alban Butler, the author of the Lives of the Saints. He was an only child, his mother was of French extraction; receiving his preparatory education in London, he obtained further schooling in France and later entered the English College at Douai. There he developed the spiritual and cultural characteristics which, despite the demands of a most extensive conveyancing practice, found active expression to the end of his life. In 1769 Butler decided upon a legal career. Whether circumstances or inclination determined his decision to become a conveyancer cannot be definitely established at this distant date.3 The incidents of his career bring to light the fact that conveyancing is curiously bound up with both the religious and the secular history of the country. Some of the most effective devices in the art of conveyancing derive from the endeavour to overcome the difficulties of restrictive legislation discriminating against the Roman Catholic Church and its ad? herents in this country, since such devices enabled the property to be rendered available for both the Church and its members without coming into conflict with the legal provisions which otherwise would have proved obstructive. Furthermore conveyancing devices, at a much earlier stage in the legal history of England when, in this country, Christendom was entirely represented by the Roman Church, enabled such Orders as were not permit? ted, according to religious rule, to own property, to be able to have the enjoyment thereof by the method of vesting property in what would now be called nominees?lay persons who were unaffected by such restrictions and would hold that property in trust for those 1 "The Succession in Conveyancing Tradition" by the present writer,The Conveyancer (Old Series) Vol. XVIII, p. 73. 2 Chapters (or Ethics) of the Fathers I, 1. 3 "Charles Butler 1750-1832" by the present writer in The Conveyancer (Old Series), Vol. XVII, p. 141,</page><page sequence="5">JACOB WALEY (1818-1873) 45 in whose interest the property was held.1 There had thus grown up among Roman Catholic lawyers in Conveyancing a tradition that enabled them to circumvent the restrictive provisions of 7 and 8 William III, which debarred them from all forensic practice2. Charles Butler thus described the restrictions in his Reminiscences, Volume 2 (1827) at pp. 273-274 : "By an Act of the 7th and 8th of William III the English Bar was inhibited to Roman Catholics. It was not opened to them still the Act passed for relief of the Catholics in 1791. During this period they practised as Chamber Counsel in the conveyancing line and many attained great eminence". Butler with his characteristic accuracy used the phrase "was inhibited to", and thus brings out the point that the provisions of these Acts and similar restrictive measures did not expressly debar Roman Catholics and others, including Jews, outside the Established Church holding various offices, but they made it unconscionable for any adherent of those faiths submitting to the declarations required, as they were contrary to the beliefs which they held as a matter of conscience. Sir Frederick Pollock observed, in a review of Sir William Holdsworth's History of English Law, Vol. VII, in the Journal of the Society of Public Teachers of Law, 1926 (at p. 38), that "the disability of Roman Catholics to practise at the Bar drove members of that persuasion who had the taste for Law to become pure Conveyancers and throw all their learning into that branch. Charles Butler is the familiar example. Whether their Real Property doctrine was at all coloured by scholastic methods I do not know. The probable influence of the Schoolmen on Mediaeval Pleading has often been pointed out, in fact H. W. Challis . . . the most acute of Real Property Lawyers and second to none in learning, was a disciple of Cardinal Newman for some years (see L.Q.R. XIV, p. 219). So there would seem to be some subtle affinity." One is inclined to conjecture as to whether an ancestral influence of Talmudical learning may, perhaps not consciously, have affected Jacob Waley. It should be explained that by "pure conveyancer" is meant Counsel who devote themselves exclusively to the writing of opinions and the settling of documents associated with the Law of Land and of Property Rights and Obliga? tions, other than Commercial Law; and by Pleading is meant, in the sense used in the quotation from Sir Frederick Pollock, the drafting of Court documents in litigation and not, as used in the popular sense, of oral advocacy. It should be observed that the Test Acts (1672-1677, 1688-1829) which prevented Roman Catholics from becoming called to the Bar did not stand in their way of becoming members of the Inns of Court; and, as there were ranks in the legal profession known as Conveyancers, also Equity Draughtsmen and Special Pleaders, who could exercise their learning as draughtsmen of conveyancing documents and Court forms for the Chancery Courts and for the Common Law Courts respectively, this enabled them to practise as such without having to pass the Test Acts, a process which would have been against their conscience. Charles Butler took a leading part in the struggle for the legal emanci? pation of his co-religionists and as he was the Master in Law, in other words, the teacher, of one who stood in that capacity to Jacob Waley, it can well be imagined that Waley, living at the time when Anglo-Jewry was going through the progressive stages towards legal emancipation, must have heard and been encouraged by what Duval is likely to 1 See hereon, Maitland's Equity 2nd Ed., p. 25. 2 See Martin's Practice of Conveyancing, Vol. II, Edited by Charles Davidson, 1844, at p. 32; subsequently reproduced in Davidson's Precedents of Conveyancing and the Article "Convey? ancing Practice" in the Encyclopaedia of the Laws of England, 3rd Ed., Vol. 3, at pp. 675-676 by the present writer.</page><page sequence="6">46 JACOB WALEY (1818-1873) have told his pupil of Butler's activities in a similar cause?apart from the fact that many of Butler's works, which narrated the difficulties under which his co-religionists suffered, would have been accessible and known to Waley. Nor is it unlikely that Duval, having maternal associations with Geneva, was himself interested in the cause of religious liberty. For this reason, reference at some length has been made to this aspect of Charles Butler's life because, apart from the personal succession in the Law in pupillage from Charles Butler to Jacob Waley, Waley's subsequent work in and for Anglo-Jewry showed him to be a protagonist in the consolidation of the Anglo-Jewish community as a denomi? nation, and of movements which had as their object the securing of such a position for Jewry in other countries of the world which did not enjoy the progressive liberation of the Jewish citizens of Great Britain. Duval, it is most likely, would have recounted to his pupil Waley some of the many facets of the career of Charles Butler?Duval's own master in the law. Butler was much interested in Judaica and Hebraica. Quite late in his life, to quote his own words, "he began the study of the Hebrew language under the direction of the rabbi Uzielli; but his proficiency was limited to a tolerable knowledge of its grammar (including the curious system of the vowel points) and to some knowledge of its syntax. Slender, and very slender, as this acquisition is, he found much of great use ..." (Reminiscences, Volume I 4th ed. p. 209). Who this Rabbi Uzielli was, I have been unable to identify with certain? ty. Very likely, he was the David Uzielli referred to in Albert M. Hyamson's The Sephardim of England at p. 266. It is more than probable that he was not an ecclesiastic, but one, nevertheless, well versed in Hebrew and taught it as a peripatetic teacher, and Butler, as many would, applied to him the title "Rabbi". David Uzielli died in Greenwich in 1836. Butler completed his Reminiscences in 1827. The dates render identification not unlikely. That all this reached Waley via Duval it is not unreasonable to suppose, and that it gave Waley confidence in his contacts at Lincoln's Inn, in which Butler was held in such high regard, there is no reason to doubt. Similarly, there is every reason to believe that Butler's struggle for the emancipation of his own brethren in faith paved the way for the similar liberation of Anglo-Jewry from the legal fetters by which the progress to emancipation was impeded. Jacob Waley progressively acquired a large practice in conveyancing, having become better known through his work for Jonathan Henry Christie, who was one of those mainly concerned in the drafting of the Act for the amendment of the Law of Real Property (8 and 9, Victoria, Ch. 106). Christie was spoken of as the greatest conveyancer of his day and among Christie's pupils was Arthur Caley, Professor of Pure Mathematics at Cambridge. Waley was introduced to Christie by Mr. Justice Hargrave, of the Irish Judicial Bench, who had previously been a practising member of the English Bar. Christie was assisted in his work by Charles Davidson. Charles Davidson was called to the Bar on the 20th November, 1835, by the Middle Temple and was almost immedi? ately afterwards requested by the Maxwell of that day, of the law publishing firm now known as Sweet and Maxwell, to complete the unfinished work of Thomas Martin, a member of the Bar who did not live to complete the project he had commenced of a series of volumes entitled Practice of Conveyancing with Forms of Assurances. In the production of more than one edition of each of the five volumes of the work founded on Martin's series, which became known as Davidson's Precedents and Forms in Conveyancing, Jacob Waley became closely associated. His name first appeared in that work in 1857 on the title page of the 2nd Edition of the second volume. On the title page of every Other volume subsequently published in Waley's lifetime, including the 3rd edition of</page><page sequence="7">JACOB WALEY (1818-1873) 47 the first volume, his name appeared. Just as there is a succession in conveyancing tradition through the disciples of successive conveyancers, so there is a succession in volumes of Precedents, the forms which afford guidance to practitioners in the drafting of conveyancing documents, based on the experience of practice and the creative in? genuity called forth by the needs of practice. Davidson's Precedents, which established themselves quickly in favour, still remain a conveyancing classic, not only in respect of phraseology but also as regards the treatises and notes which accompany each volume, in the compilation of which Waley had a considerable share. Davidson was the forerunner of Key and Elphinstone's Precedents, Thomas Key having been a pupil of Jacob Waley, Sir Howard Elphinstone, Bart., the joint author of Key and Elphinstone, having been a pupil of one of Waley's Masters in the Law?Vice-Chancellor, Sir Charles Hall. The Treatises on Settlements, which occupy a whole volume of the set of Davidsons' Prece? dents, is generally recognised as the work of Waley. The late John Saville Vaizey, who became the author of a subsequent work on Settlements (the drafting of documents which settle property by Settlors during their lifetime, as contrasted with settlements which form part of Wills), a work which in itself has become a classic, recalls that Thomas Key told him that Waley had regarded his own contribution on Settlements to the Davidson series as his life's work. Waley's statements were considered as being of such authority, that is to say, as high an authority as can be accorded to the writings of a conveyancer expounding the practice of conveyancers, that the mere statement that "Mr. Waley" expresses this or that view is regarded as conclusive, short of a decision to the contrary by the Courts. In Vaizey's own contribution on Settlements to the En? cyclopaedia of the Laws of England, 2nd Edition, Waley's work is referred to as one of the authorities. In the article on Mortgages in the same Encyclopaedia, by W. F. Philipotts, revised by C. Johnston Edwards, the following statement is contained in the introduction : "So far as regards the form of Mortgages and the practice of Conveyancers in framing them, it is founded on the essay by the late Mr. Jacob Waley in the preface to the second part of the second volume of Davidson's Precedents in Conveyancing. The essay was written by him for an early edition, reprinted after Mr. Waley's death, in the later edition published in 1881, with notes by the late Mr. Charles Davidson and Thomas Key .. . having regard to the repute of these conveyancers, it is considered that so far as not altered by Statute, the text of the essay is in conveyancing practice as good an authority as the decision of the Courts." The article has many such phrases as "Mr. Waley proceeds" by way of an introduction to quotations from his writings ; again it is stated, "Mr. Waley's description is still accurate" (p. 338). Waley's name is mentioned 25 times in an article of 64 pages. Davidson's Precedents which, to the extent mentioned, include sections of the highest importance compiled by Waley are, notwithstanding, changes in conveyancing practice due mainly to statutory alterations, referred to with respect by the Courts today, just as they are in the Chambers of Conveyancers. All of us in this sphere of practice can recall many such occasions, and I am reminded of one such instance when Mr. Justice Uthwatt, as he then was, when confronted with a problem in conveyancing which presented itself to the Court, adjourned the matter with the direction to consider whether the treatises and notes in Davidson might not throw their light upon the subject. In 1861 Waley was elected a member of "The Institute." The Institute is an organisation which one can hardly imagine could grow on any other soil than that which nourishes the Common Law. It is, as its name implies, an Institute and, at the same time, a Club, without territory of its own; a Mess, in the sense of a Bar Circuit Mess,</page><page sequence="8">48 JACOB WALEY 1818-1873) and a Fellowship, which is within the Fellowship of the Inns of Court. It was founded in 1815; the earlier records show by an entry that there was an older Conveyancers' Club in existence at the time when The Institute was founded. The 4th edition of Sanders on Uses, a highly technical work on Conveyancing, published in 1823, is dedicated to its fellow-members, and Charles Bellenden Ker, who was a member and afterwards joined The Institute, made a note in his copy of that edition, stating that the older body consisted of Messrs. Shadwell, Charles Butler, Bentham, Shepherd, Duval, Sanders, Chippendale and himself, and two of these names will thus link up the tradition with Waley. Soon after 1823 this earlier body ceased to exist. Lord Haldane thus referred to the Institute, in his autobiography, at p. 67 : "As a token of regard when I became Lord Chancellor The Institute of Conveyancers, a Body, the standards in old Law of which are held to be very high, gave me a dinner." Sir Arthur Underhill in Change and Decay : the Recollections and Reflections of an Octogenarian Bencher, formerly one of the Conveyancing Counsel of the Court and one closely associated with the development of the epoch-making Property Legislation of 1925, states "there is an ancient Dining Club, originally restricted to forty pure Convey? ancing Counsel, but later mixed with Chancery men. It is modestly called 'The Insti? tute' ... to this select Body [he writes] I was elected in 1894 at what was generally con? sidered the early age of 44?indeed I was regarded as the baby, and a rather impudent baby at that, of the 'Forty Thieves' (as the outsiders called us) who constituted the Club at my election : One newspaper (I forget which) described us, on the morning of one of our distinguished guest days when I was present, as a Club consisting of forty elderly gentlemen . . . who dine with each other, succulently, five times a year, and talk about estates tail and contingent remainders.'* He writes "I plead guilty to the succu? lence of the dinners but I do not recollect either estates tail or contingent remainders ever forming the subject of conversation." Sir Arthur UnderhilPs humorous narrative with the hyperbole of the newspaper quotation requires some amendment in the light of current happenings. I myself can bear testimony to the fact that all the members are not, as the newspaper he quoted, observed, "elderly gentlemen;" and although estates tail and contingent remainders may not be now discussed at the preliminary meetings or dinners, that is now largely due to the fact that these instances of conveyancing technology are less complex than they used to be, but to imagine that even at dinner the talk does not turn to the intricacies of what is regarded as perhaps the most intricate branch of English Law would not bear complete relation to the facts. A standing committee with sub-committees is available as a consultative and advisory body in respect of Property Legislation and Conveyancing Practice and is periodically, as occasion requires, active, and influential. Reference to The Institute is to be found in the Law Reports, in the case of re Halliday, 1922, 2 Chancery, 698, and also in the actual wording of a precedent in con? veyancing, Key and Elphinstone's Precedents in Conveyancing 10th Ed., Vol. II, p. 954, published in 1914, the last edition of the work which had the advantage of being edited by one of its original authors, the late Sir Howard Elphinstone, Bart., one of the Con? veyancing Counsel of the Court. It runs as follows : "if any question or dispute shall arise as to the construction of this my Will, or any codicil hereto, my trustees may cause a proper case to be laid before Counsel to be selected by them, or in case of dispute by the President for the time being of the Conveyancer's Club, called the Institute." Per? haps one, who enjoys the privilege of being on its rolls, may be permitted to say, that not merely social pleasure, but also intellectual profit accrues from membership.</page><page sequence="9">JACOB WALEY (1818-1873) 49 Waley joined the Institute in 1861 and he must have felt it to be, as Sir Arthur Underhill wrote in his own day, "a considerable honour to be elected a member." Its numbers point to its restricted membership. In the year 1868-9 Waley was elected its President. But further honour was in store for Waley for, as previously mentioned, he became appointed Conveyancing Counsel of the Court of Chancery, the first Jewish Counsel to have attained either office. As observed in the Dictionary of National Biography (sub nom. Jacob Waley), "Waley became recognised as one of the most learned Conveyancers in the profession. Although Conveyancers rarely appear before Court, Waley was several times summoned in cases of particular difficulty relating to Real Property", that is, property associated with land. When Lord Cairns chose the members of the Land Transfer Commission, Waley was appointed a member in 1867, and as such he had a considerable share in the prepara? tion of the report upon which much subsequent legislation was based. He had many pupils, among the most notable perhaps being Renshaw and Levett, both leading Counsel, Thomas Key, who became a Conveyancing Counsel of the Court and a member of The Institute, and Thomas Carson, also one of leading Counsel, a learned editor of works on the Law of Real Property and Conveyancing. In 1853 Waley was appointed Professor of Political Economy at University College, London, a Chair which he held until 1865, when much work as a Conveyancer necessitated his resignation, upon which retirement he was named Professor Emeritus. He acted also as Examiner in Political Economy for the University of London. The association of conveyancing and political economy, from an academic point of view, does not seem at first sight very apparent. Even to-day the question is asked, "what makes an Economist ?" That is the title of the inaugural lecture delivered by Professor Shackle, the Brunner Professor of Economic Science in the University of Liverpool. It must, however, be borne in mind that political economy on the one hand had not become so specialised a science as in later days, and in the academic foundations established in the 19th century in their earlier years the teaching of political economy was often linked with other subjects. Secondly, during the period of Waley's practice as a Conveyancer there was much dissatisfaction throughout the country with the state of the Land Laws, they being regarded as partly responsible for many of the economic difficulties which confronted labourers and smallholders in the countryside, and there was much literature published on the borderline of economics, politics and legal history, regarding what were often termed "fetters upon the land". Waley's work as a Conveyancer brought him into the closest possible contact with the large settled estates, the tenure of which was frequently the subject of considerable criticism from the economic side.1 There thus appears to be a more understandable association with both spheres of work which prompted Waley to pursue both. There was a Political Economy Club in London too, of which he became Hon. Secretary, as also of a Statistical Society. In practice at the Bar he succeeded to much work which had formerly been that of Charles Bellenden Ker, who himself succeeded to much of 1 Even before the 19th century the economic aspects of the Law of Property led to literature upon the subject. For instance, in 1776 Nathaniel Kent wrote a book entitled, Hints to Gentlemen of Landed Property. It is a work of standing in the earlier English literature of agriculture and economics. The author advocated "equitable" leases which would make it the interest of the tenant as well as the landlord to increase the agricultural value of the soil. It affords a record of the effect by enclosure on both the landed and the landless classes.</page><page sequence="10">50 JACOB WALEY (1818-1873) the work formerly within the practice of Nathaniel Nathan Basevi, whose mother was a Lindo, and whose aunt was the wife of Isaac Disraeli and the mother of Benjamin Disraeli. Basevi, however, although of Jewish parentage, had left the faith of his fathers and thus was able to join the Bar prior to the relaxation of the conditions which had prevented those who were conforming Jews from joining, through the application of the provisions of the Test Acts. Waley's practice included the conveyancing work connected with some of the largest estates, both in London and in the country as a whole, of which the Bedford estates are a notable instance. During all this period of activity, both in the legal and academic spheres, Waley was an energetic leader in the institutional life of Anglo-Jewry. He became the first President of the Anglo-Jewish Association founded in 1871. In connection with this work, particularly in its pursuit of both the liberation of the restricted Jewries abroad in fellowship with the work of the Alliance Israelite Universelle, and its educational work, he was determined to forward the aims of the Association wherever he felt it was possible to recruit further support. For instance, with this in view he came to Liverpool, the home of the first Branch in this country of the Alliance, which branch was established as an organised unit in 1867, although the Jewish Directory for 1874, compiled by the late Asher Myers, in the first year of its publication states it was founded in 1865. My Father1 was its founder and first President and Waley was his guest on his visit to Liverpool. From my Father I heard much of Waley's enthusiasm for the cause which he espoused. Ill health, however, compelled Waley to resign his office before the second Annual Report of the Association was published. In that report it stated that "the Council, trusting that time and repose might benefit Mr. Waley, indulged for a while the hope that he might at no very distant date be enabled to resume his duties and induced to reconsider his resignation. Its acceptance was therefore left in abeyance for some months. The hope, however, proved vain; the Council was compelled, in the early part of that year, to proceed to the election of a new President. . . . The Council deems this, however, a fitting opportunity to record the expression of its high appreciation of and sincere gratitude for the services which Mr. Waley rendered the Association. His name will always be identified in the history of the Society with its foundation, and the Council cannot sufficiently mark its sense of the pre-eminent zeal and ability with which he conducted its affairs during the critical period when the Institution was in process of formation and before it had established its raison d'etre." In the Annual Report for 1873-1874 it is stated (p. 6) that "last year the Council had to deplore the loss of one of their most prominent members, and they will not readily forget the debt of gratitude which they owe to the late Jacob Waley, the noble promoter of the undertaking, to whose indefatigable exertions the Association owes its very existence. It adds that he will long live in their grateful remembrance. Attached to that Report in my collection there is a report of a public meeting of the Jews of Liver? pool under the auspices of the Liverpool Branch of the Association to receive Baron Henry de Worms (later Lord Pirbright), Waley's successor in the office of President of the Association, to hear an account of the Conference then lately held in Paris in connec? tion with the assembly of the Great Powers at Constantinople to urge upon them the progress of Jews in respect of Civil and Religious Liberty. My Father, who presided at the Liverpool meeting, observed that "in that very place the late lamented Professor Waley delivered an Address, the words of which still echoed in his ears, that though the 1 The late B. L. Benas (1844-1914).</page><page sequence="11">JACOB WALEY (1818-1873) 51 Anglo-Jewish Association was at that time but a sapling, the time would come when it would grow into a mighty tree, the branches of which would spread forth and become the support and deliverance to all those of the Jewish nation who were oppressed." From the 1876 Report of the Association the Liverpool Report states that "it was suggested at a general meeting held on 11th June, 1876 that the interest in the working of the Institution . . . would be much increased if occasionally the branches were visited and addressed by some of the leading members of the metropolitan establishment, similar to the course so successfully inaugurated by the late Professor Waley. The benefits derived from the Association do not appear locally, as its exertions are directed to the Jewish Communities in less fortunate countries". I might add that these Public Meetings were pioneers of their kind on behalf of extra-parochial Jewish matters in this country, a point sometimes overlooked by those of contemporary Jewry working in similar fields of endeavour. Waley was President also of the Jewish Orphan Asylum, London, which in his day was situate in Goodman's Fields. He was one of the founders of the Society of Hebrew Literature, a publication society for the promotion of Hebrew literature, which for some years issued translations of Jewish classics fully annotated and with apparatus of critical comments. He was a member of the Council of Jews' College and helped in the organisa? tion of the London Jewish Board of Guardians. In the institutional sphere his pro? fessional skill showed to the greatest advantage in his collaboration in the establishment of the United Synagogue, which owed much of its constitutional side to his wisdom and judgment, and it can readily be appreciated that, although unrecorded, his services must have been available, informally, to numerous other organisations in Anglo-Jewry which enlisted his valued co-operation. Apart from reports of his speeches in connection with the Anglo-Jewish Association and other occasional utterances, he made no specific contribution to Anglo-Jewish literature from his own pen, except a short preface to Israel Davis' Jews in Rumania in which his championship of the oppressed found, once again, forcible expression. On his passing away attention was called in the various Press notices to his modesty, conscientiousness, and charitableness. Waley died on the 19th June, 1873, in London and was interred in the Edmonton Jewish Cemetery. He was greatly honoured in Lincoln's Inn although he never became a Master of the Bench, the position of "Bencher" rarely in his day and not often since occupied by pure Conveyancers, those holding that position being in the main practitioners in the Courts. In 1843 Waley married Matilda Salomons, niece of Sir David Salomons, Bart., and of Sir Moses Montefiore, Bart., by whom he had several children : two of them, Arthur Joseph Waley and John Felix Waley, both of Lincoln's Inn and both members of the Chancery Bar, the latter for several years Secretary to the Council of Legal Educa? tion, the Council of the Inns of Court which supervises the education of students for the Bar. His children and descendants, through cousinage, have kinship with other Jewish members of the profession and the name Waley, through the marriage of his daughter, Julia Matilda, to Nathaniel Louis Cohen, has brought the name into association with many other leading Anglo-Jewish families. Jacob Waley was an outstanding instance of the finest type of Anglo-Jewish citizen, distinguished in his profession, a worthy citizen and at the same time a devoted member of his own community to which he rendered signal service, one who has set a shining example to those who follow him in the vocation of the Law which he adorned. Waley worthily upheld and notably advanced the great humanist traditions of the Inns of Court which Ben Jonson in an historic phrase called "the noblest nurseries of humanity and</page><page sequence="12">52 JACOB WALEY (1818-1873) liberty in the Kingdom." A well known textbook in the Law and Practice of Conveyanc? ing1 has a filial dedication which calls to remembrance a father's name in Lincoln's Inn wherein he spent many years in the practice of the Law and the advancement of its learning, so that it seemed to the present writer fitting that in the narrative of Anglo Jewish contributors to the permanent values in the pursuit of the Law the name of Jacob Waley should be added by a conveyancer of a later generation and kept in remem? brance in Anglo-Jewry through the records of the Jewish Historical Society of England.2 1 T. Cyprian Williams on Vendor and Purchaser with inscription to the memory of his father Joshua Williams, previously mentioned. 2 The sources for the above address include the privately printed Memoirs of former members of The Institute, edited by John Saville Vaizey, and the authorities therein cited, including : the Obituary references in the general, Jewish, and Legal Press, of the day ; the Dictionary of National Biography ; Boase, Modern English Biography ; Illustrated London News, 19th July, 1873 ; and a souvenir of the meeting held to commemorate the completion of fifty years work of the Liverpool Branch of the Anglo-Jewish Association, privately printed in 1918, also Jewish Chronicle, 5th July, 1918 ; in addition to the books cited in the text.</page></plain_text>