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More Anglo-Jewish Leading Cases

Norman de M. Bentwich

<plain_text><page sequence="1">More Anglo-Jewish Leading Cases1 By Professor Norman de M. Bentwich, O.B.E., M.C., Hon.LL.D. In a lecture which I gave to the Society in 1941, on leading cases concerning Jews in the English Courts,2 I pointed out two classes of suits which were to be distinguished. The one concerns steps in the civil and political emancipation : the other the recognition or rejection in the Courts of the Jewish law of family relations, and the relation of Jews to the established Christian religion. That lecture, published in the Transactions of the Society, dealt with the second class of decisions. I have been asked to supplement it by an account of some cases of the first class. They seem to me, as I read them, dead and lacking human interest now that their work is done. So I have summarized a few other reports, of criminal, and therefore more human, cases which were related indirectly to the long struggle for emancipation. Let me start with two of them. In the middle of the eighteenth century English public opinion was aroused about the status of the small Jewish community. The government of George II, which was very unpopular, passed through Parliament in 1753 an Act facilitating the naturalization of Jews ; and then had to repeal it. Part of the agitation against the law took the form of sensational reports of criminal cases in which individual Jews were involved. Those cases are interesting as a mirror of life in general and of the tiny Jewish community in particular. jews on the road in the eighteenth century (1) Case of Henry Simons In the year 1751, a case which breathes the atmosphere of The Beggars' Opera, and formed the subject of a battle of pamphlets, concerned a Polish Jew who visited England. He must have had originally another name. The case throws light on the Police and Court procedures of the time, and on the conditions of the small Jewish community, and illustrates the principles of British Justice which protected from oppression a poor foreign Jew. Henry Simons was a pedlar and a native of the Ukraine. He came to England in 1745 and bought merchandise which he took back to Poland. He came on a second expedition in 1751 for the purchase of goods, "wearing his native Polish costume, and carrying 554 ducats in a belt." He stayed in London at the house of Berend Abrahams in Duke's Place?next to the Great Synagogue, now destroyed? and then set out on foot to Bristol. A little beyond Hounslow, finding his feet sore, he resolved to return to London. On his way he encountered one James Ashley, who assaulted him. He was rescued by some gentlemen riding along the road. A few days later he set forth again to Bristol, spent the night at an inn close to the place where he had been assaulted, and was robbed of his money. He came back to London, told his story, and, with the help of an English merchant, obtained a warrant for the arrest of the inn-keeper who was tried, but acquitted. Ashley, who had assaulted Simons, was a friend of the inn-keeper, and gave evidence for him ; and after the acquittal sought out a warrant against Simons on a charge of perjury. The warrant was granted by a London magistrate, the brother of Henry Fielding, 1 Paper read before the Jewish Historical Society of England, 15th May, 1947. 2 Trans. Jew. Hist. Soc. of England, vol. xv, pp. 93 et. seq. 149 p</page><page sequence="2">MORE ANGLO-JEWISH LEADING CASES the English novelist, who was a Justice of the Peace for Westminster and Middlesex. The warrant was not executed forthwith, but kept, as it were, in storage. Simons had to beg for alms from the London Jewish community, in order to get back to his native Poland. It was said in the trial that he had pawned his veil, which was used in the synagogue, i.e. the Talith, and that only in the direst extremes would a Jew part with it. He set forth on foot once again, to Harwich, accompanied on the first part of the journey by another Polish Jewish pedlar. They had got as far as Chelmsford when the man Ashley spied them and chased back to London for the warrant of arrest. He spread the hue and cry that a Polish Jew highwayman who had robbed him was on the road. Simons was caught and brought by a mob to Chelmsford, roughly handled there, and rescued by a parson who was a magistrate. He was committed for trial on the charge of perjury, and tried by the Assize court in Chelmsford and convicted. Ashley gave evidence that Simons, imitating Joseph's conduct to Benjamin, had put some of his ducats into Ashley's pockets, in order to throw the guilt on him. But it appeared that, in the hubbub of the Court, the jury did not properly hear the charge of the judge, that they must find that he had put the ducats with evil intent. The Jewish" Community in London felt that injustice was being done to a Jew, and they banded together to help him. Statements were obtained from all the jury about their misunderstanding of the judge's charge, and on these statements application was made successfully for a new trial. There was a second hearing at Chelmsford before a different jury. Before that trial proceedings were taken against Ashley and two others who had joined in the arrest of Simons on a charge of wrongful imprisonment. The warrant which Ashley had obtained against Simons on the perjury charges was good only in Middlesex, and had not been endorsed for Essex. Ashley and the others were convicted by Chief Justice Lee at the London Guildhall and sentenced to a fine of ?200. At the second trial Simons was defended by an array of counsel, and he had as witnesses the magistrate of Chelmsford, who had protected him from the mob, another London magistrate who had been at Chelmsford at the time of the arrest, and a number of Jews who gave evidence regarding his character and his solicitation for help after the original robbery. The parson-magistrate deposed how he had endeavoured in vain to speak with Simons in Portuguese, Jews being associated by the public with the Peninsula. The other magistrate, Alderman Gascoyne, was more successful. He knew what is described as " Dutch ", but is presumably " Deutsch ". "I asked him whether he could speak Dutch. He jumped from the corner of the room through all the people, rushed upon me with great eagerness, and still kept on in his own language with all the joy he could express for that some? body had spoken to him in a language he understood. He jumped at me and hugged me. The people cried out ' Stand away, rascal ! you want to pick the Alderman's pocket'. Said I c Let the man alone, sit down '." Among the Jewish witnesses was Aaron Franks, who is described as " the great Jew Franks, and the ruler and head of the Synagogue ". He told how he gave directions to the overseer of the poor, Lazarus Simon, to help the Pole to return to his country. Simons was found not guilty and that was the end of the proceedings in the Courts. But it was not the end of the public interest in the case which had become a symbol of a fight between the true-born Englishman?of doubtful repute?and the alien, and passed into the sphere of pamphleteering. The friends of Simons published the story with an</page><page sequence="3">more anglo-jewish leading gases appendix, setting out the indictment, the affidavits, and the shorthand notes of the proceedings at the trial, Then Ashley was provoked, and he published 44 The Case and Appeal of James Ashley "1 addressed to the public, " interpreted throughout with many very uncommon particulars " and with 44 a curious print of the person and dress of Henry Simons ". He did not think fit to give a record of the proceedings at the trials. But he concluded his preface with the protest that the Jews were not " sworn in the solemn manner in which they swear one among another, upon the Horns of their Altar, wherefore they might suppose they were not sworn so as in point of conscience to be bound to speak the truth or to strike a sacred awe in them in a Christian Court.55 Two facts stand out from the conflicting records : the desire of the English magistrates and merchants to do justice ; and the desire and the determination of the Jewish community to prevent injustice. (2) Case of Abraham Payba The public interest in the Jews was a motive for the publication in London of another set of pamphlets, about the trials in Paris of a London Jew whose chief dis? tinction seems to have been that he was a rake. Pamphlets, in that age of the political pamphleteer, took the place of letters to the newspaper to-day. The case comprises criminal proceedings in Paris, and involved besides Payba two members of Parlia? ment, Edward Wortley Montagu, Member for Huntingdon, and Theobald Taaffe, Member for Arundel. The reports throw light on the legal system in France before the Revolution, and show that some Jews had assimilated the loose habits of the English aristocracy. But they do not, as in the case of Simons, involve the Anglo-Jewish community. Payba was a young Jew of London, a near relative of Samson Gideon, the leading financier of the day ; and his race, which he disguised by assuming the name of James Roberts, is thrown up against him by his adversaries. Three pamphlets, published in 1752, are devoted to the tale. The first is a 44 Memorial of Edward Wortley Montagu. Written by himself in French, and published lately at Paris, against Abraham Payba, a Jew by birth, who assumed the fictitious name of James Roberts.'5 Next is Payba5s 44 The Memorial presented to the High Court of La Tournelle at Paris, in favour of Abraham Payba, Jew, a Native of London ; against E...dW...yM...u, Esq. ; and T . . . dT . . . e, Esq." Lastly, 44 A Memorial presented to the Judge in the High Court of the Tournelle, in Paris, by the Honourable Edward Wortley Montagu, Member of Parliament for the County of Huntingdon ; and Theobald Taaffe, Esq., Member of Parliament for Arundel ; against Abraham Payba, alias James Roberts, and Louis Pierre, Jeweller ; appealing from the Sentence given in favour of Roberts and Pierre, the 14th June, 1752." The proceedings can be shortly summarized. Payba quarrelled with his family in England and went to France with an Englishwoman, maybe two. In Paris he posed as a gentleman of means, under the name of James Roberts. He was called on by two Members of Parliament, who were gamesters, dined with them, was plied with drink, induced to play faro, and lost a considerable sum. He repented overnight, and when called upon a day later to honour his debt, under threat of violence, as he alleged, gave a worthless draft on a bank, and then made off to Lyons. His creditors straightway broke into his rooms and took possession of his personal property to 1 Called Thomas Ashley on p. 15.</page><page sequence="4">152 MORE ANGLO-JEWISH LEADING GASES recoup themselves. He laid a criminal information against them, and they were arrested and imprisoned in the Chatelet. The first proceedings ended in the acquittal of the accused and the arrest of Payba. " The pretended Roberts became the real Jew." He was condemned to make reparation of honour, in the presence of twelve persons to be chosen by those whom he had accused. Before them he should declare " what he had falsely and wickedly imagined and devised against them in a calum? nious accusation." Then Payba, who was pertinacious in his own cause, brought fresh proceedings, together with a Paris jeweller, against Montagu and Taaffe, and this time convinced the High Court of the Tournelle in Paris of their criminal conduct. A word may be added about one of the principal actors in the somewhat sordid drama. Edward Wortley Montagu was the son of the English ambassador to Turkey ; his mother, Lady Mary, was one of the luminaries of the Augustan age of English literature. Her letters, which include a striking description of the Jews in the Ottoman Empire, are among the classics. He was a character equally romantic and erratic. After a chequered career at the University, he became a Member of Parliament in 1747. Then after a Paris interlude he travelled with a woman, to whom he was not married, to the East, and made with her the journey from Egypt across the Sinai desert to Jerusalem, where he was received into the Roman Church. JEWISH RIGHT OF ENJOYMENT OF LOCAL CHARITIES Turning to the struggle in the Courts for emancipation, one of the hard fought battles for civil rights was won over the question of Jewish rights to the benefit of educational charities. In the earlier lecture I dealt with cases in which the validity of charities established by Jews for Jewish religious purposes was decided. The claim of English Jews to participate in the benefit of local charities in towns in which they dwelt arose in Bedford where, in the beginning of the nineteenth century, a few Jewish families were settled. Bedford was distinguished for its educational charities, established by the Harpur Foundation in the time of Queen Elizabeth. The case was heard by the Lord Chancellor, Lord Eldon, one of the elder statesmen of the Tory party which ruled England from the end of the Napoleonic wars until the Reform Bill in 1831. He was not likely to favour a liberal interpretation of the law. The petition was brought by Joseph Lyon of Bedford, his daughter Sheba, Michael Joseph of Bedford, Isaac Lyon Goldsmid, Isaac Sebag, and three other gentlemen of the City of London who were elders of the congregation of Dutch and German Jews of the Great Synagogue at Duke's Place, and also by Levy Solomon, Myer Solomon, R. Raphael and Michael Abraham Levy, who were elders of the congregation of the New Synagogue in Leadenhall Street. The declaration sought was that Sheba Lyon was entitled to the benefit of provisions in the Bedford charities about the apprenticing of girls of the town ; and the issue was whether settled Jewish inhabitants in Bedford should have the same rights as other citizens to the benefits. Those charities included a free school for the education of the youth in grammar and good manners ; a provision of marriage portions, annually, for twenty maidens, and provision for apprenticing boys and girls in the town, and payment of a prize at the end of the apprenticeship. The Governors and trustees were elected by the ratepayers. The petitioner, Joseph Lyon, was described as of the Jewish persuasion ?the term Nation which appears in the eighteenth-century decisions is no longer applied?and had for twenty-one years been the occupier of a house. His daughter,</page><page sequence="5">MORE ANGLO-JEWISH LEADING GASES 153 Sheba, of the age of fourteen, being qualified, presented herself to the master of the charities as a candidate to draw lots for the apprenticeship fees. The application was refused because of her Jewish parentage. For a time they had admitted Jews, and the son of Joseph Lyon had been a pupil of the Free School and had been permitted to draw lots for apprentices. An elder daughter too had drawn lots and was bound apprentice. Two sons of the other Bedford petitioner, Michael Joseph, had been admitted to the Free School, had drawn their apprentice lots, and been bound apprentices to their father, a silver-smith. His three elder daughters had received the marriage portions, while a fourth daughter received both the apprentice fee and a portion. It was perhaps the prolificness of the Jewish families which caused appre? hension to the governors of the charities. The Mayor wrote to Joseph Lyon noting that the Jews were increasing in Bedford, and the Trustees entertained doubts whether such persons should participate in the charities, and refused to accord to Jews participation in the benefit, leaving it to them to bring the matter before the Lord Chancellor. The petition asked for a declaration that all the poor inhabitants of Bedford were entitled to the benefit, whether Jews or Christians, and that the Master be ordered to let Sheba Lyon draw lots. Sir Samuel Romilly, champion of the liberal reform as well as of the reform of criminal law, appeared for the petitioner. The objections that were raised to the admission of Jews were based on points in the actual terms of the trust, and did not raise broad principles of discrimination. It was said that the trust required the Christian name of a child to be given, and a Jewish child had no Christian name. Again, the regulations of the School prescribed the reading of morning and evening prayers and the study of the Gospel, which Jewish children were precluded from doing. On the other hand it was alleged that in fact tolerance had been shown for a period of years towards Jewish pupils in the School in regard to the reading of prayers and religious instruction. Jewish rate-payers, who had never numbered more than four, had voted at the annual election of the trustees of the charity ; and as to the danger of Jewish children swamping others, only three families actually remained in Bedford. The headmaster of the Free Grammar School made an affidavit about the Jews in the School. The father of the Joseph boys had requested him to dispense with them at the time of morning and evening prayers and on the Sabbath and the Jewish holidays. The girls, who attended school for two days in the week, were permitted to read the Ten Commandments of the Bible instead of prayer. The Master of the English or Writing School deposed that Michael Joseph requested that his son should not attend prayer. This was not allowed ; but the boy was permitted to sit instead of to kneel, to be absent on Saturday, and not to read the New Testament. The Solicitor-General, Sir John Giffard, and Joseph Phillimore, the ecclesiastical lawyer, who was later to adorn the Bench and enrich English legal literature, opposed the petition. They argued that the petitioner must show that at the foundation of the charity Jews might have benefited ; but at that time the Jews were aliens and treated as enemy aliens, as shown by Coke's Institutes. All infidels in the land were according to him perpetual enemies. " Between them, with the devils whose subjects they may be, and the Christians there is perpetual hostility and can be no peace." Christianity is part of the law of England ; and to admit Jews to the benefit of charities would be indirectly to encourage the mode of faith in support of which the court will not interfere. The Jews differ in their interpretation</page><page sequence="6">154 MORE ANGLO-JEWISH LEADING GASES of boni-mores, and the good morals contemplated in the School statutes were those of Christians. Romilly vigorously refuted the doctrine of Coke which had earlier been denounced by the Chief Justice, Sir George Treby, as absurd, monkish, fantastic, and fanatical. Lord Eldon challenged the right of gentlemen of the Great Synagogue and the New Synagogue to intervene. How could the court notice a body called the Jews' Synagogue ? The elders of the Synagogue in London had indeed no legal standing ; and it was said that they appeared in their individual character, and the title " Elders of Synagogue " was a mere description. The Lord Chancellor gave a ruling that they were not entitled to take any part. Finally he dismissed the petition, professing that he was not concerned with general principles, but could only construe Acts of Parlia? ment and there was an incapacity of the petitioners to sue. Subsequently a petition was brought by the Master of Bedford charities to satisfy the technical requirements for a declaration whether the inhabitants of the Jewish persuasion were entitled with the Christians to the benefit of the charity. The answer was given that the Jews were not entitled to any benefit. It was the duty of a judge of an English court to recollect that Christianity was part of the law in England. In the construction of charities and Acts of Parliament, they were not indeed to proceed in that principle further than a just construction requires, but were not at liberty to forget it. In the Grammar School care was taken to educate youths in the Christian doctrine. Jews resident in Bedford could not, therefore, conscien? tiously permit their sons to attend the School. In the case of girls the petition was rejected, because they could not put in the application their Christian names and, moreover, girl apprentices were required to attend public worship on Sunday. There the matter ended at the time for the courts. But a generation later, one of the then residents in the town, Moses Lissack, who wrote a book on the virtue of perseverance, contrived, by the exercise of that virtue, to convince the trustees of the charities that they should modify the regulations so as to admit Jewish children. By that time the little community in Bedford had almost disappeared. But the fruit of his efforts was reaped a generation later when four sons of the family of Abrahams all distinguished themselves at the School both in scholarship and in athletics, and there made the preparation for a career that has given to the country Sir Adolphe Abrahams, the head of the Westminster Hospital School of Medicine, Sir Sidney Abrahams, former Chief Justice of Tanganyika and of Ceylon, and the first English Jew to be a member of the Judicial Committee of the Privy Council, Harold Abrahams, the English champion runner and former head of the English team at the Olympic games, and Leslie Lionel Abrahams, County Coroner for Huntingdon. THE PARLIAMENTARY OATH CASE Miller v. Salomons The battle for removing Jewish political disabilities was fought out in the Victorian age partly on the floor of Parliament, partly in the Law Courts. When the attempts to get Parliament to alter the form of oath, which seemed to preclude a Jew, duly elected by his constituency, from taking his seat were obstructed, Alderman David Salomons, who was returned in July, 1851, as Member for the Borough of Greenwich, daringly challenged the Rule. He appeared in the House of Commons in order to take his seat and the necessary oaths, without repeating the words " on the true faith of a Christian ". Upon going to the table he demanded to be sworn</page><page sequence="7">MORE ANGLO-JEWISH LEADING GASES 155 on the Old Testament, giving as his reason, in answer to a question from the Speaker, that such was the manner most binding on his conscience. This demand was acceded to, and he took the oaths of Supremacy and Allegiance in the usual form. In repeating the Oath of Abjuration, by which a member swore that he would have nothing to do with the Old Pretender, he omitted the words, 44 on the true faith of a Christian," but ended with the words, 44 so help me God," kissed the Old Testament, and demanded to subscribe the Oath. This, however, was not allowed, the Speaker directing him " as he had not taken the Oath of Abjuration in the manner required by Law, to withdraw ". Mr. Salomons accordingly withdrew below the bar. A member obtained a reply from Lord John Russell, the Prime Minister, that if he nevertheless voted in the House, Government did not propose to institute proceedings against him for the penalties provided by Act of Parliament, in order that the question of right might be tried by a Court of Law. Alderman Salomons then re-entered the House ; he was ordered by the Speaker to withdraw, but retained his seat and voted on the Motion for Adjournment, which was moved in order to discuss the legality of his action. He voted on two further motions ; and then, having been requested again to withdraw, and having refused, was removed by the Sergeant-at Arms. Two actions for penalties were brought afterwards against him. One came on for trial in the Court of Exchequer in December, 1851, before Baron Martin and a special jury. The judge suggested that, as it involved important questions of law, it should be turned into a special verdict for the opinion of the full Court. It came before the full Court in January, 1852,1 as an action of debt to recover from the defendant three penalties of ?500 each, under an Act of George I, which enacted that any person who should be a Member of the House of Peers, or Member of the House of Commons, who should presume to vote, not having taken the Oath of Abjuration, and subscribed the same, should forfeit the sum of ?500, to be recovered by the claimant. The Barons who sat in the Court were the Lord Chief Baron Pollock, the ancestor of a great legal progeny, Baron Parke, Baron Alderson, and Baron Martin. Those who sat on the appeal were the Chief Justice, Lord Campbell, and four others. The counsel for Alderman Salomons were Sir Fitzroy Kelly, a former Attorney General, Mr. Wells, and Mr. Augustus Goldsmid, one of the family which played a notable part in the struggle for emancipation. Mr. Goldsmid edited a special report of the case, prefaced by a statement of the hope that 44 he has not been biassed by the natural leaning of an advocate in thinking that the case might possess some claim on the interest of the public at large ". Serjeant Channell, opening the case for the plaintiff, the common informer, pointed out that it was a question of law, and would be presented without considering the policy of the law or its suitableness to the age. Assuming that Jews were bound to take the oath in some form or other, the question would be, whether it could be taken on the Old Testament ? The next question was, assuming that it could be sworn on the Old Testament, whether the words 44 upon the true faith of a Christian " having been purposely omitted, the oath had been taken at all ? The case turned on the interpretation of statutes divided into two classes : (1) Those which imposed on Members of Parliament the duty of taking the Oath of Abjuration and other oaths ; (2) Those of an Exempting or Dispensing character. Under this latter class were those specially affecting Jews, those affecting Quakers and Moravians (some of which 1 17 Exchequer, p. 475, and 8 Exchequer, p. 718.</page><page sequence="8">156 MORE ANGLO-JEWISH LEADING CASES also applied to Jews), the Catholic Emancipation Act, and lastly, the Statute of Victoria to remove Doubts as to the Validity of certain Oaths general in its charac? ter, and enacting that all persons should be bound by an oath, administered to them in the form binding on their conscience, without respect to any religion or sect whatever. The Jews and the Quakers were constantly associated in the struggle for religious toleration. Special legislation was required to permit both thec peculiar communities5 to be married according to their own rites. But the Quakers obtained complete political equality with much less struggle because they could subscribe the final words. The Oath of Abjuration, which was prescribed by an Act of George III, and was particularly directed to exclude Roman Catholics, ended with the words that caused the trouble, 44 and I make this recognition . . . and promise heartily, willingly and truly upon the true faith of a Christian . . . 55. An Act of George I relieved the Quakers from taking the Oath because it was against their conscience to swear, and allowed them to make a declaration to the same effect. The Act then proceeded : 44 And whereas the following words are contained in the latter part of the oath of abjuration?viz. 4 upon the true faith of a Christian: ' be it further enacted, that whenever any of her Majesty's subjects professing the Jewish religion shall present himself to take the said Oath of Abjura? tion, in pursuance of the said recited Act or of the present, the said words,4 upon the true faith of a Christian,' shall be omitted out of the oath in administering the same to such person, and the taking of the oath by such person professing the Jewish religion without the words aforesaid, in like manner as Jews are admitted to be sworn to give evidence in courts of justice, shall be deemed to be a sufficient taking of the Abjuration Oath within the meaning of this Act and the said recited Act." The effect of this enactment was to allow Jews to omit these words when taking the oath for the purpose of an earlier Act of George I, but for this purpose only. It did not apply, so it was argued, to the Oath of Members of Parliament. The spirit of the legislation restricted membership of Parliament to Christians ; and, therefore, the more tolerant provisions, which had been introduced to enable dissenters?Roman Catholics and Jews?to take their part in other activities of the national life, public and private, were not to be construed liberally in relation to the Statutes about the Parliamentary Oaths. 44 There could be no doubt that it was the intention of the Legislature, in framing the Act in question, to impose a religious test, and it had taken the greatest possible pains to frame that oath so as to render it binding upon the conscience of the person who took it. There might well be Chris? tianity without Protestantism, but there could be no Protestantism without Christi? anity. The words, 4 upon the true faith of a Christian ' coming as they did after the stringent language at the commencement of the oath, showed that they were of the essence of the oath, and could not be rejected." Whether the Jews were in the con? templation of the Legislature or not, at the time when the oath was made compulsory, was a matter with which he need not encumber the argument. Sir Fitzroy Kelly argued the case in similar manner, by analysis and strict construction of the Acts of Parliament, but argued that the general principle of liberty of conscience ought to be considered in the interpretation. That Jews were entitled to serve in Parliament was a proposition which could not admit of doubt ; and though the Act might be construed in such a sense as to impose upon this class</page><page sequence="9">MORE ANGLO-JEWISH LEADING CASES 157 of the community the duty of taking an oath repugnant to their consciences, under pain of losing some of the most valued privileges of a British subject, he submitted that the Court were bound to construe words of the Statute so as to favour liberty of conscience. Whenever the legislature, by Statute or the Common Law, imposes the duty of taking an Oath on any man, the Law not only permitted but required him to take it in a form which should be binding by his conscience. The question was, did the legislature mean to make the Jew swear that he was a Christian ? He denied that, when the Statute of George III was passed, when there were many rich and influential Jews in the country, it meant any such thing. To assert the affirmative would be to argue that the Jews must, at the bidding of any magistrate, either swear they were Christians or be subject to penalties. It was open to the Court to decide the case in one of two ways ; either treat the words as amounting to the declaration that the swearer was a Christian, or without doing violence to the construction, treat them as mere words of asseveration and thus favour liberty of conscience and relieve the Law from perpetrating the greatest injustice and tyranny. The four Barons delivered their opinion ; and Mr. Baron Martin disagreed with his judicial brethren. He accepted the argument for the Defendant that the quoting of the words of the Oath of Abjuration should not be construed to impose a test of Christianity for the swearer. The essence of an oath was an appeal to a Supreme Being, in whose existence the person taking the oath believed, and whom he also believed to be a rewarder of truth and an avenger of falsehood. The form of taking an oath was a mere outward act, and not essential to the oath, which ought to be administered to all persons according to their own peculiar religious opinion, and in such manner as most affected their consciences. He refused to draw the distinction between the oath which a Jew might take for any other office and the oath which he must take as a Member of the Legislature. The words, " on the true faith of a Christian " were inserted not as a test of Christianity, but for the purpose of framing an oath in a form effectually binding on the conscience of a Roman Catholic. The other three Barons gave judgment for the Plaintiff. Baron Alderson laid stress on the words which required a Member of Parliament to take the Oath, and not an oath, of Abjuration. He and his brethren expressed their regret as expounders of the Law to come to that conclusion. " I do not believe that the case of the Jews was at all thought of by the Legislature when they framed these provisions. I think that it would be more worthy of this country to exclude the Jews from these privileges by some direct enactment, and not merely by the casual operation of a clause intended apparently in its object and origin to apply to a very different class of subjects of England. I regret also that the consequences are so serious, involving disabilities of the most fearful kind, and in fact making Mr. Salomons for the future an outlaw." The Chief Baron Pollock drew the distinction between the judicial oath, which, in accordance with the law of nations, was to be taken by the swearer in the form binding on him by his conscience, and the oath of office or of qualification, which is governed by the municipal laws of the State, and by those laws alone. If a man cannot obey the municipal law of the country in which he resides, he is at perfect liberty to quit it. He, too, made clear his liberal sympathies. " I think we are not as Judges?living though we do in a more enlightened and liberal age?to be liberal above what is written, or by any method of construction, when the statutes distinctly, expressly, and imperatively require one form, to substitute another as equivalent for</page><page sequence="10">158 MORE ANGLO-JEWISH LEADING GASES the object or purpose of the Legislature, when every one acquainted with our history and course of legislation must in candour acknowledge that in any part of the reign of George I, George II, or the early part of George III, it was the furthest from the intention of the Legislature to admit into the House of Commons persons of the Jewish religion." When the case went on appeal to the Court of Exchequer Chamber, the same arguments were repeated with the same result. Sir Fitzroy Kelly raised one new point. As the Court below had held that they were entitled to substitute Queen Victoria in the form of the Oath for King George, which was actually prescribed in the Act, the same principle of reason or sense would allow of the formal words of asseveration being varied and adapted to the religious conscience of the swearer. But the judges were not shaken by that plea. The Chief Justice, Lord Campbell, the prolific author of the Lives of the Chancellors, pointed with pride to the fact that he had introduced the Act of Parliament which enabled David Salomons, when elected Sheriff of London, to serve the Corporation without taking the Oath of Abjuration. " But," he concluded, " We have only to declare what the Law is, and not what it ought to be. I regret that the Act was ever passed, so as to exclude Jews, and my wish is that it should be repealed. But it is our duty to put the best con? struction we can on an Act of Parliament, and, in so doing, we entertain no doubt whatever that, according to the existing laws, Jews are excluded from sitting in either Houses of Parliament." Note.?Some sixty years later, in 1912, another Jew elected to the House of Commons was deprived of his seat through the action of an informer. Sir Stuart Samuel, M.P. for the Tower Hamlets Division of Whitechapel, was a member of the firm of Samuel Montagu and Co., who were employed by the Government of India to purchase silver. They entered into contracts for this purpose with the Secretary of State for India, and Sir Stuart had dealings with the Government Department about the contract. The objection was raised that this was a contra? vention of an Act of George III, which provided that a Member of Parliament, who was directly or indirectly concerned with contracts for or on account of public service, was disabled from sitting and voting in the House of Commons. The question whether it came within the terms of the old Statute, which was directed to preserve the freedom and independence of Parliament, was considered by a Select Committee of the House of Commons. The Committee referred the legal question involved to the Judicial Committee of the Privy Council, which can be called upon to advise the Sovereign of any quasi-legal matter. The Committee, over which Lord Chancellor Haldane presided, advised that there had been a breach of the Statute. They rejected any suggestion of improper motive, but were obliged to find that Sir Stuart Samuel was disabled from sitting in the House. THE ZIONIST MOVEMENT Finally we may note two cases in the courts which bear indirectly on legal aspects of the Zionist movement. The English courts have not had to pronounce directly on the Zionist movement or on the interpretation of the Palestine Mandate. That has been left to the Palestine courts. But an old case, decided nearly a hundred years ago, gives an interesting glimpse of the Christian forerunners of the Lovers of Zion. It is about the will of one Nadir Baxter, made in 1842.1 The testator bequeathed ?1,000 " towards the contribution that I earnestly believe will speedily be raised under the sanction of our highly favoured church and nation as evidence of Christian 1 Reported in 4 De Gex and Smale, p: 467.</page><page sequence="11">MORE ANGLO-JEWISH LEADING GASES 159 faith towards the political restoration of the Jews to Jerusalem and to their own land." He further gave ?500 to the fund of the Anglican bishopric in Jerusalem, recently created and held by a Hebrew Christian, Michael Solomon Alexander ; " because I believe that the constitution of the bishopric is the actual commencement of the great work of Jehovah towards Zion." The Court held that the gift of ?1,000 was not a charitable legacy, and was void. If it could be considered to mean anything, it was to create a revolution in a friendly country, the Ottoman Empire. Jews might at present reside in Jerusalem ; and if the acquisition of political power by them was attained, the promotion of such an object would not be consistent with our amicable relations with the Sublime Porte. It was fifty years later that the courts had to deal with different attempts at the settlement of the Jews on the land. They gave decisions about the scope and purposes of the two principal organizations for that end. Both .cases concern payment of taxes and duties in England. It is a tribute to the trust which the Jewish leaders had in England that these organizations, created primarily by Jews on the Continent and for the benefit of jews on the Continent, were established as English corporations. That indicated the respect for British justice and for the security which was given by England to institutions protected by her law. The confidence was costly in money. One of the companies was required to pay a very large sum in death duties, the other to pay a substantial annual sum for income tax. The judgments are notable in their appreciation of the Jewish effort, and also in their acceptance of the twentieth century view of the national idea, which contrasts with the conception of the Jews in the previous century as primarily a religious community. The first case, Attorney General v. The Jewish Colonization Association,1 concerned the liability of the Association founded by Baron de Hirsch for the payment of English Succession Duty and Estate Duty on the endowment which he made over to the Association in his lifetime. The Baron, an Austrian national domiciled in Austria but living in England, in 1890 gave by deed to an English Company, whose office was in London, securities to the value of two million pounds, and in 1892 securities to the value of seven million pounds, on condition that he should receive the income for his life, and after his death, on trust for the benefit of Russian Jews generally, but principally for the promotion of their emigration from Europe and their settlement in countries outside Europe. He was a famous character in English Society, a friend of King Edward VII, and one of the kings of the turf. He had made his vast fortune by financing railways in Eastern Europe, particularly in Turkey, and he devoted it to the purpose of settling persecuted Jews of Russia in the New World. His enrichment in Turkey made him oppose the idea of settlement in Turkish-ruled Palestine. The Jewish Colonization Association had its main office in Paris ; and its business was directed by a Council that sat in Paris. But, being incorporated in England, ordinary and extraordinary general meetings were held in London. The testator died in 1896. The principal part of the securities subject to the deed were foreign securities situated abroad, and the documents of title were abroad. One seventh part, to the value of one million pounds, were in England. The question was whether the whole of the securities which, on his death, were to be held by the Association for the purpose of the settlement trust, were liable to succession duty and to estate duty. The objects of the Association were described as " to assist the emigra 1 Reported in Law Reports 1900, 2 Queens Bench, 557 : and 1901 2 Kings Bench, 123</page><page sequence="12">i6o MORE ANGLO-JEWISH LEADING CASES tion of Jews from Europe or Asia to other parts of the world, and to form colonies for their reception in various parts of North and South America and other countries ". In the event of the winding up of the company, the assets were not to be distributed to the members, but transferred to an institution with similar objects to be selected, if necessary, by a Judge of the High Court of England. The case was heard originally before a Divisional Court of two judges who held that the duties were payable. One relied on the ground that, in order to carry out the administration of the property, recourse must be had to English tribunals. The other found that the Association was domiciled in England and held the property on trust for the benefit of unascertained 44 aliens of the Jewish race ". But the company and not those aliens was beneficially entitled on the succession within the meaning of the Act; and no individuals were beneficially entitled until the company should have selected them as persons to profit by the benefaction. On the appeal brought by the Association there was a formidable array of counsel. For the Association, Sir Robert Reid, who was to become the Liberal Lord Chancellor as Lord Loreburn ; Charles Swinfen Eady, K.C., later Master of the Rolls and Lord Swinfen, Albert Venn Dicey, K.C., the authority on English constitutional law, William Otto Danckwerts, K.C., the most powerful advocate of the Chancery Bar, and Dr. Ernest Schuster, a leading expert on foreign law and a 44 non-Aryan ". For the Crown appeared Sir Richard Webster, the Attorney General, later to be the Lord Chief Justice as Lord Alverstone, and Sir Robert Finlay, later to be Lord Chancellor as Viscount Finlay, and the first British Judge in the Permanent Court of International Justice. The Court dismissed the appeal. The Baron had resort to an English corporation in order that his donation might, if necessary, be administered by English Judges according to English law. He deliberately submitted his scheme to English law, and indelibly stamped it as an English scheme. The income from the fund had passed to the Association on his death, and that was a beneficial succession within the terms of the English Acts. So the Association had to pay over a million pounds to the British Treasury. The second case concerned the liability to income tax of the English assets of the body originally known as the Jewish National Fund, one of the instruments of the Zionist Organization. The body had changed its name to the Hebrew Keren Kayemeth Leisrael, and the case is reported as the Keren Kayemeth Leisrael v. the Com? missioners of Inland Revenue. It was heard in all the three instances, the King's Bench, the Court of Appeal, and the House of Lords,1 and the decisions were in all the Courts for the Crown. The three financial instruments of the Zionist Organization were founded as English corporations?the Jewish Colonial Trust, the Anglo Palestine Bank, the Jewish National Fund. The objects of the Fund were stated in the memorandum of association as 44 to purchase land in Palestine, Syria, or other parts of Turkey in Asia and the Peninsula of Sinai, for the purpose of settling Jews on the land ". Twenty-one subordinate objects were specified, including the power to cultivate and improve lands and to deal in mining rights. All were subject to a proviso that they were to be exercised only in such way as shall conduce to the attainment of the primary object. No part of the income was distributed by way of dividend or profit to the members ; nor, in the event of the winding up, were assets distributable among the members. The question in issue as to the liability to income 1 Reported in 1931, 2 King's Bench, 465, and 1932, Appeal Cases, 650.</page><page sequence="13">MORE ANGLO-JEWISH LEADING CASES l6l tax was whether the Keren Kayemeth Leisrael was a charitable body in the special legal sense. If it were, income tax would not be payable. The Commissioners of Inland Revenue found, and the Court affirmed, that it was not a body established for charit? able purposes only, and, therefore, was not entitled to the exemption from income tax. The association had philanthropic objects. But they fell within none of the principal divisions into which charity is divided in English law. Those objects are still deter? mined by a statute of Queen Elizabeth, which has been interpreted and re-interpreted by hundreds of decisions over a period of 350 years. The four main purposes are : (a) the advancement of religion ; (b) the advancement of education ; (c) the help of the poor ; (d) other purposes beneficial to the community. The last term seems to cover a multitude of virtues ; but, in fact, has been again limited by a long series of decisions. The Association was a part of the Zionist Organization of which the objects were the restoration of the Jews to the Holy Land. Its primary object was to acquire land in Palestine as the inalienable property of the Jewish people for the purpose of settling Jews. The income was derived from the voluntary contributions of the Jews in all parts of the world. Dayan Asher Feldman of the Beth Din in London stated that, in his view, the objects were religious because it was part of the religious duties of every Jew to assist the repatriation of Jews to Palestine ; and the fund was carrying out the principle laid down in Leviticus, chapter 25, " The land shall not be sold for ever : for the land is mine, saith the Lord thy God." It was urged, also, that the purposes fell within two other classes of charity : the help of the poor, and the benefit of a community, i.e. the Jewish community. For the Crown it was urged that (1) the objects were the repatriation of Jews without regard to the means of emigrants, and did not necessarily include the allevia? tion of poverty ; (2) the promotion of the objects was not a religious duty of members of the Jewish faith nor for the advancement of the Jewish religion ; (3) the objects were not beneficial to the community in the legal sense. In the first hearing Mr. Justice Rowlatt held that the main object was to populate Palestine with Jews, and the dominant motive was towards the land and not towards the people. The Court of Appeal was composed of the Master of the Rolls, Lord Hanworth, Lord Justice Lawrence, and Lord Justice Slesser. Lord Justice Slesser, who had been Solicitor General in the Labour Government, was a Jew by race, but not by faith. Counsel appearing for the Keren Kayemeth included Sir John Simon, now Lord Simon (ex-Lord Chancellor), and Dr. Samuel Daiches who, while a teacher at Jews College, had been called to the Bar. The Attorney General, Sir William Jowitt, now Lord Chancellor Jowitt, led for the Crown. The Court unanimously dismissed the appeal, but for different reasons. The Master of the Rolls stated that the promotion of religion meant promoting spiritual teaching in a wide sense, and the maintenance of the doctrines on which it rested, and the observances that serve to preserve and manifest it. In the second place, the objects of the company were not the relief of poverty. That was not the characteristic purpose. Rather it was the re-population of the Holy Land and other lands in a wide area so that the population might be Jewish. There was no charitable object as distinct from a wide philanthropic purpose towards the Jews. Lord Justice Lawrence took the view that the fund was an instrument of the Zionist Congress, which aimed at securing national privileges and territory for the Jews, especially in Palestine, and the establishment there of a theocratic constitution. Political and racial considerations, therefore, entered largely into the scheme, and it could not be said that the purpose was the advancement of</page><page sequence="14">MORE ANGLO-JEWISH LEADING CASES religion. The Court was concerned not with the views of the exponents of the Rabbinical law, but with the meaning and effect of the language of the Memorandum of Association, in which there was no mention of the advancement of religion, or of any other religious object. Lord Justice Slesser rejected the plea about religion, on the ground that the area of settlement contemplated by the company was not restricted to Palestine or the Promised Land in its widest connotation, but included a part of Turkey in Asia. He was more impressed by the argument that the purposes were beneficial to the Jewish community. But that condition was not satisfied because of uncertainty about the words 44 the Jewish community ". The appeal to the House of Lords was based on two grounds only, that the purposes were the advancement of religion and for the benefit of the Jewish com? munity. The Counsel who appeared for the Keren Kayemeth, Mr.H. Infield, Mr. Leonard Stein, and the present writer, urged that it was a fundamental principle of the Jewish religion that land should be acquired for replanting Jews in Palestine. Living in Palestine was an essential part of the Jewish religion and the Law of Judaism cannot be adequately carried out except in Palestine. The settlement of the Jews on the land, therefore, was a purpose for the advancement of Judaism. Secondly, the Fund was for the benefit of either the Jewish community settled in the area described, or of Jews all over the World. The five Law Lords agreed in confirming the judgment of the Court of Appeal. Lord Tomlin stressed that the area of settlement was wider than the Promised Land, and on that ground alone the object could not be said to be exclusively the advancement of religion. The minds of those who are intimately concerned with the work of the Associa? tion may be affected by religious motives and religious sentiments. But, none the less, the object of the Association is not to do something which is in itself religious. It is not creating a trust for the advancement of religion. The prescribed region was far wider than the Promised Land on any construction of the promise. The combination of objects, religious and non-religious, cannot be separated ; and that combination is fatal to the contention that the association exists for charitable purposes only. As regards the second plea, there was difficulty in identifying the community. Was it for Jews within the prescribed region ? ; but then the purposes included the benefit of Jews outside that region. Was it the Jewish community everywhere ? It was extraordinarily difficult to say that that was a community within the meaning of the English cases. Lord Macmillan dealt similarly with the argument about the advancement of religion. 44 It is suggested that, while the transactions and the operations are the ordinary operations of land colonization and settlement, the deeper motive, which is behind them, is predominantly religious. It may well be that those who promote and carry on the activities are, in point of fact, animated by religious motives. But the Income Tax Code applies a more objective text." It was said of old that the English law favours charity. But the stream of legal charity has become clogged by the mass of precedents and decisions which make that branch of the law as technical as the law about income tax itself. With the case about the Jewish National Fund I must stop. Those who heard the Lucien Wolf lecture given to the Society by Professor A. L. Goodhart on five Jewish lawyers, may feel that the contribution of Jewish judges and advocates to Anglo-Saxon law is greater and more significant than the contribution of Jewish leading cases to the development of that law.</page></plain_text>

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