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The Ḥerem of Rabenu Tam in Queen Anne's London

G. W. Busse

<plain_text><page sequence="1">The Herem of Rabenu Tarn in Queen Anne's London G. W. BUSSE In the year 5466 (which corresponds to 1705), the London Ashkenazi Jewish community was split in two by a bitter controversy. The history of this dispute was outlined by David Kaufmann1 in a paper read to this Society in 1897, which was printed in Volume III of its Transactions. The matter was further discussed by Dr. Cecil Roth in 1940 in his History of the Great Synagogue. My excuse for bringing this subject before you yet a third time is that, while both these historians studied the sequence of events and the clash of per? sonalities in this controversy, neither of them concentrated his attention upon its importance in the development of Halacha, or Jewish Law. This is the aspect of the incident which interests me?and it is my purpose to try to show how this dispute among Jews of London, in the reign of Queen Anne, played a significant part in the history of Jewish Law. Jewish Law has its fundamental precepts, which are explicitly laid down in the Penta? teuch. About these fundamental precepts, such as, for example, the Ten Commandments, there is comparatively little argument. But apart from these, there are Geserot?or Deci? sions?and Takanot?or Amendments?enacted by later generations. Some of these were instituted to deal only with certain circum? stances and were not necessarily meant to remain effective for all time. Further, since the Sanhedrin, or the Beth Din Hagadol, ceased to function as a Halachic authority, which happened according to some scholars about 120 years, and according to others about four years, before the destruction of the Second Temple, there has been no authority, recog? nised by all Jewry as supreme, which could fix the Law. Every learned Rabbi had power to decide matters for his own community, but this did not constitute binding law for all Jewry. On the other hand, there were great scholars in each generation whose decisions were widely accepted, but not always by everyone. Another source of legal authority, accepted for considerable periods of time, were the various codifications of Jewish Law made by Maimonides, Jacob ben Asher, and Joseph Caro. The affair which we are now discussing indicates how changes in Jewish Law were brought about. An addition to the Law made by a great scholar in twelfth-century France was found to be too harsh in eighteenth-century London and was rejected. This was done by reinterpreting anew this addition to the Law and the intention of its author. The sources on which my study is based are first of all two books published by the contest? ing parties. One written by Uri Feibush (later called Aaron Hart), the Rav of the Ash kenazim in London, is a pamphlet entitled Urim Vetumim, dated Marcheshvan 467?that is, autumn 1706?which is said to be the first Hebrew book printed in London. Since it is rare and esteemed by collectors I have been unable to buy a copy and have had to rely on a photo-copy from the Bodleian Library in Oxford. It is an awkward book to read because not only is it written in difficult language but its compositor was obviously unfamiliar with the Hebrew alphabet and interchanged many of the letters. The second book?produced by the opposing party?is by Rabbi Johanan ben Isaac Holleschau, tutor to the children of Mordecai Hamburger, of London. This is entitled Maaseh Rav, which means 'An Important Matter'; it could also be translated as 'The Deed of a Rabbi'. This pamphlet was published by Emanuel ben Joseph Athias, a well-known Jewish printer in Amsterdam. Apart from these two works, I have also used another book, called Megillat Sepher, by Yaacov ben Zvi, known also as Yavits and as Jacob Emden,2 who was the son of the famous Hacham Zvi Ashkenazi. It seems that at the beginning of the eigh? teenth century, in most Jewish communities, 138</page><page sequence="2">The Herem of Rabenu Tarn in Queen Anne's London 139 there were a few rich men and many very poor ones dependent on charity. The financial burden of supporting the community fell on the wealthy few?sometimes on only one or two? who ruled its affairs autocratically. There was not, as there is today, a large group of moder? ately wealthy men among whom the responsi? bilities for communal finance and government could be shared. In 1706 the small Ashkenazi community in London had been established only for some 15 years. It was led by two or three men, and when these fell out the whole community was involved in the dispute. In these circumstances, the Rav was in an in? vidious position; his income came mainly from the rulers of the congregation, and it was difficult for him to stand up to his Gabbai and if necessary to decide against him. The London Ashkenazi congregation was founded in or about 1690 by Benjamin Levy. Its constitution laid down that it was to follow the tradition of the Ashkenazi congregation of Hamburg, from which city most of its leading members seem to have originated. These included Rabbi Uri Feibush (Phoebus), his brother Moses Hart, both nephews of the founder, Benjamin Levy, Abraham ben Moses Norden, the Gabbai, who was also called Reb Aberle, Mordecai Hameln, who was a son of the famous woman diarist Gl?ckel von Hameln,3 and his brother-in-law, Mordecai Hamburger, known also as Marcus Moses. In 1704 Mordecai Hamburger and two of his friends, Sampson Mears and Abraham Nathan, were hailed before the Court of Aldermen in London at the suit of Moses Hart and Abraham Mendes, the leaders of the two Jewish communities, and ordered forthwith to cease from constructing a second Ashkenazi synagogue. Dr. Roth has shrewdly suggested that the building in question may have been intended as a Beth Hamidrash, or House of Study, on the model of the famous Hamburg Klaus. In any event, it is clear that before the dis? pute of 1705, when Mordecai Hamburger earned the displeasure of the Rabbi and leader of the London community, a rift had occurred between the two parties. The basis of this rift may have been partly personal. Reb Aberle had been an unsuccessful suitor for the hand of Mordecai's wife, Freudchen, and was also his competitor in the precious stone trade, but it seems to me that Mordecai Hamburger and his faction were shocked by a deterioration in the standard of religious observance in the London congregation, which may have owed something to the example of the London Sephardim.4 Rabbi Johanan tells us in his Maasen Rav how disturbed he was to discover, when he first came to London, that the Jews used to go to the country (the word 4country' is used in the Hebrew) to drink the waters, and there they would eat bread baked by non-Jews and drink milk procured without Jewish super? vision. Rabbi Johanan reports that asses' milk ?which, of course, is regarded as unclean according to Jewish dietary laws?was used in England only as a medicine and was very expensive. There was therefore little risk of its being sold to the public in place of cows' milk. But it was possible that milk bought from Gentiles might contain small quantities of asses' milk or might have been placed in polluted utensils. When he approached Rabbi Feibush and suggested that the milk supply should be supervised, Feibush answered that his influence was not strong enough to change the established London custom of drinking unsupervised milk. It seems to me that, from the standpoint of Jewish Law, Johanan's argument is a weak one. There is a rule that if a small quantity of un? clean food?amounting to a sixtieth or less? is mixed with hasher food it does not pollute the whole. This principle would apply in the case of the unsupervised milk. Jewish communities in Central Europe, in? cluding Hamburg, were of the opinion that milk ought to be procured under strict super? vision. Sephardim did not share this opinion and interpreted the source of this restriction in a different manner.5 I might add that the books of the main protagonist who had allowed unsupervised milk were banned in about 1698, that is, six years before these events. Rabbi Johanan was so upset at the neglect of this tradition that he refused to eat in any</page><page sequence="3">140 G. W. Busse Jewish house in London because he considered all their cooking utensils to be unclean. He strongly criticised Reb Aberle for failing to do likewise. Rabbi Johanan complains further that although the rules of the London congregation laid it down that it should follow the customs and laws of the Jews of Hamburg?who were most meticulous in dietary matters?the Jews of London 'threw off the yoke of the holy Law5. He reports with concern that Reb Aberle, the Parnas and a man of good education, holding a Rabbinical degree, was seen in a coffee? house drinking coffee on the Fast of Esther. All the Jews, Sephardim and Ashkenazim, talked about this scandal and Aberle's bad example led many to eat and drink in public on the following fast day, the Fast of Tammuz. Aberle pleaded in his defence that his physician had ordered him to eat on the fast day, but Johanan refused to accept that this was true, and in any case, he argued, Aberle should have gone into a private room in the coffee house and not led others astray by being seen to disregard the Fast publicly. Rabbi Johanan has other complaints to make about his patron's enemy, Aberle. He suggests that he was responsible for humiliating Rabbi Loeb Huna?Feibush's predecessor as Rav?and causing him to leave London. He accuses him of destroying the community's building and depriving the communal butcher, Maitles, of his livelihood, despite an agreed rule giving Maitles sole franchise for the sale of hasher meat.6 Johanan also accuses Aberle of being the first person to break the congrega? tional law prohibiting the formation of a second Minyan.1 But for this rule, Johanan would certainly have formed his own Minyan, for he felt that it was improper to associate with public sinners. He quotes a phrase: 'It is better to live in the wilderness than to associate with sinners and to be contaminated by their bad example.' It is against this background of personal con? flict and religious difference that the con? troversy of 1705 arose. The events leading up to it were as follows: On Sunday, 5 Elul 5466 (1705), Berl Katz and his brother Anschel appeared before Rabbi Feibush in London and asked him to prepare a conditional bill of divorce for AnschePs wife. Anschel was an incorrigible gambler, heavily in debt, and in danger of arrest. Once imprisoned, he stood little chance of ever being released again, and prisoners sometimes suffered maltreatment with fatal results. On previous occasions his brother had paid his debts, but he could do so no longer. Anschel had borrowed money and lost it at cards, so he decided to emigrate to the West Indies to escape from his creditors, but first he desired the Rabbi in strict secrecy to prepare a conditional divorce, which would free his wife to remarry should he not return to England within a specified period. If Anschel were to depart without granting his wife a conditional divorce, the lady might become an Aguna?that is, a woman who is not allowed to remarry because her husband is merely missing, and his death cannot be proved or presumed. The Rabbi agreed to prepare the bill of divorce and said that he would have it written by Aaron of Dublin, a scribe who lived in London. The brothers protested that Aaron must not be told, because Anschel had won a large sum of money at cards from the scribe's son-in-law, and they felt that Aaron could not be trusted. The brothers Katz were accompanied by Baruch Bendit, who was a brother-in-law of Anschel Katz. He was a Sephardi and suggested employing the scribe of the Sephardi community. The Rabbi had collected 15 people to be present at the divorce ceremony on the Monday. The witnesses appeared, but the brothers Katz failed to come to terms with the Sephardi scribe. The witnesses went home and Anschel Katz's secret became common gossip in the community. On the following day, Tuesday, 7 Ellul 5466, Anschel and Berl Katz brought another Sephardi scribe before Rabbi Feibush and the bill of divorce was duly written, signed, pre? sented, and torn in front of witnesses, in accordance with Jewish Law. Rabbi Feibush, who arranged Anschel Katz's conditional divorce, was a friend and protege" of Reb Aberle. When Rabbi Judah Loeb Huna, the London Rav, had left for Rotterdam, Feibush was his obvious successor, but he had been made to give an undertaking</page><page sequence="4">The Herem of Rabenu Tam in Queen Anne's London 141 not to accept the office for a space of three years. He probably did this because at that time he had yet to acquire the knowledge necessary for a communal Rav. Mordecai Hamburger had no respect for Feibush as a scholar. When he heard that Feibush had arranged the complex conditional divorce needed by Anschel Katz, Hamburger said publicly that Feibush was incapable of arranging a valid divorce and that the docu? ment issued was worthless. The Katz family was most upset by the effect of these malicious remarks and so was Rabbi Feibush. Feibush warned Mordecai Hamburger that if he persisted in his slanderous statements he would be placed in Ilerem, that is, excom? municated. Mordecai Hamburger took no notice. The Herem was one of the strongest weapons in the armoury of the Jewish authorities. This ban was normally applied for 30 or 60 days? or for a longer limited period?and it was then renewed if the offender failed to recant. Maimonides, in his Mishneh Torah, lists 24 offences for which the Herem is the appropriate penalty. Of these the following are relevant to our story: Deriding a member of a Beth Din, or Jewish Court; refusing to accept the verdict of a Beth Din; refusing to appear before a Beth Din; and bringing Jewish Law into con? tempt. In the other codes of Jewish Law, Jacob ben Asher's Arba Turim and Joseph Caro's Shulhan Aruch, a similar view is taken. Rabbi Feibush did not, however, choose to subject Mordecai Hamburger to a limited Herem on the lines suggested by the three Codes just mentioned, though he could well have done so. He pronounced a far more drastic ban. He subjected Mordecai Hamburger to the Herem of Rabenu Tarn. Rabenu Tarn?Jacob ben Meir?was a grandson of Rashi and lived in France in the twelfth century. He was a scholar of great authority?one of the Tosaphists?whose deci? sions carry great weight. In council with his pupil Moses8 and other scholars, Rabenu Tarn issued a decree, which was solemnly pro? claimed in the market place of Troyes.9 This edict laid it down that 'any Jew who casts doubt on the validity of any divorce after the bill of divorce had been delivered, or who claimed to have witnessed a divorce when he had not', would be subject to a most drastic Herem. He and his family would be shunned like death and no authority would have power to lift the Herem, 'until such time as the High Priest stands dressed in the Urim and Tumim'. Rabbi Feibush convened a Beth Din of three. He himself presided over the Court, then examined witnesses and wrote down their evi? dence. Mordecai Hamburger was requested to attend, but did not do so. The witnesses testified, in German mixed with many Hebrew words, that Mordecai Hamburger had declared, in coarse language, that Rabbi Feibush was in? capable of arranging a legally valid divorce and that his ignorant blunders would render any such document null and void. The witnesses further testified that Hamburger had been warned that he would be subjected to the Herem of Rabenu Tam if he persisted in his slanderous and abusive remarks. After hearing the witnesses, the Beth Din duly pronounced Mordecai Hamburger to be under the Herem of Rabenu Tam. The unusual feature of the Herem of Rabenu Tam is that it is irrevocable 'until such time as the High Priest stands dressed in the Urim and Tumim'. These mysterious objects are men? tioned in Exodus xxviii. 30, and Leviticus viii. 8, as attachments to the breastplate of the High Priest. Nowhere in the Bible are there any directions for fashioning Urim and Tumim, but according to Ramban the method of con? structing them was a secret entrusted to Moses by the Almighty. While up to the destruction of the First Temple the High Priest wore a breast? plate with Urim and Tumim, when the Second Temple was built, after the Babylonian exile, the High Priest wore a breastplate without Urim and Tumim, since it was impossible to reproduce them. The priestly families who were not able to present proof of their priestly ancestry were told, in Ezra ii. 63, and Nehemiah vii. 65, that they might not partake of the Temple sacrifices 'until such time as the High Priest stands dressed in the Urim and Tumim'. By the time Rabenu Tam chose to quote the phrase, it was generally understood to mean 'until the Messianic Age'. The fferem of</page><page sequence="5">142 G. W. Busse Rabenu Tarn is therefore an indefinite one, lasting even after death. The whole idea of an indefinite Herem seems contrary to Jewish thought?which is probably why this Herem is omitted from the Codes. True, Jacob ben Asher mentions it, but he does not seem to accept it as lawful. It is questionable whether the Herem was ever in fact enacted in medieval times. Mordecai Hamburger was put in Herem a few weeks before the Jewish New Year. When the Holy-Days came he was not called to the Reading of the Torah. He was not allowed to have his newly born daughter named in the synagogue. The poor people who used to call regularly at his house for charity were warned off calling on him. The Festival of Tabernacles arrived. Because of unfavourable winds, the consignment of ethrogim ordered by the Ash? kenazi community did not arrive in time for the Festival and the congregation had to ask for the gift of one from the Sephardim. Mordecai Hamburger was refused the use of this com? munal ethrog. Mordecai Hamburger was greatly distressed by his experience of Ilerem and before long he waited on Rabbi Feibush and begged him to remove the ban. He offered to retract in public and to pay a fine of ?500 if he could be forgiven and called to the Reading of the Torah during the forthcoming Festival. Accord? ing to Maaseh Rav, Rabbi Feibush was willing to comply, but was prevented from doing so by Reb Aberle. On the other hand, Feibush states in his Urim Vetumim that he considered the matter carefully and concluded that he had no power to revoke the Herem of Rabenu Tarn, which was essentially irrevocable. Mordecai Hamburger and his more learned friends felt that the punishment inflicted on him was exceptionally harsh and severe. They doubted, however, whether such an irrevoc? able Iferem was lawful. Rabbi Johanan, who was a friend of Mordecai Hamburger and the tutor to his children, set out the facts of the case together with the testimony taken down by Feibush and sent them to various dis? tinguished Rabbis for their opinions on the matter. He asked first whether Rabbi Feibush was within the law in subjecting Hamburger to an irrevocable Herem, and secondly, whether he was right to refuse to lift the ban after the offender had retracted and offered to pay a heavy fine. One might add here that ?500 was a very substantial sum at that date, when a labourer's weekly wage was often only five shillings. The Responsa arrived during the middle of the Festival of Tabernacles. Rabbi Feibush and the leaders of the London community assembled and let it be known that the replies received from the Rabbis were of no consequence, as they had not been fully apprised of the matter. Mordecai Hamburger's supporters, particu? larly Rabbi Johanan, thought otherwise. All the Responsa annulled the lierem on Hamburger. All the Rabbis who gave a ruling stated that Rabbi Feibush was at fault in promulgating an everlasting and irrevocable Herem. None of them liked the idea of a Herem which persisted even after the offender had repented and made amends for his offence, although their reasons for nullifying the Herem varied. The Rabbis were in a difficult position. It is an accepted doctrine of Judaism that repent? ance and restitution expunge most transgres? sions. An everlasting and irrevocable ban conflicts with this principle. Yet an ordinance of Rabenu Tam was too authoritative and well respected to bear direct contradiction. So the Rabbis found ways to limit the application of the ordinance. This method of amending and adapting established laws is common to all legal systems. Courts of Appeal everywhere will reinterpret the apparent intention of the lawgiver so as to modify laws which in practice are found to be harsh and oppressive. Such judicial legislation is, however, particularly characteristic of Jewish Law because an addition or amendment to the law made by a great scholar could not be set aside without very good reasons. I mention these points in order to emphasise that the apparently devious methods of inter? preting the Law, used by the Rabbis who issued Responsa on the question of the lierem on Mordecai Hamburger, should not be regarded as empty casuistry, but should be seen as sincere and skilful endeavours to prevent abuse of the Law and to develop it in a just manner.</page><page sequence="6">The Herem of Rabenu Tam in Queen Anne's London 143 The first Responsum printed in Maaseh Rav is that of the Hacham David Nieto, of the London Sephardi community. His reply side? steps the issue by advising that Mordecai Hamburger should remain in Herem until a Responsum was received from the Rav of the Amsterdam Ashkenazim. The Rav of Amsterdam was Rabbi Moses Judah Loeb ben Kalonymus HaCohen, known generally as Rabbi Loeb Harif. He was an eminent scholar and the Rav of a large and important community. He stated that the Herem of Rabenu Tarn could only be enforced in a case where the validity of a divorce was challenged after the woman had remarried and had children by her subsequent marriage. In that case to challenge the divorce would be to cast doubt on the legitimacy of the children. Mordecai Hamburger had challenged the divorce at a stage when the bill of divorce could have been checked and if necessary re? written. Moreover, it was merely a conditional divorce, which could not be considered effec? tive until after the contingencies upon which it depended had occurred. In any event, Mor? decai Hamburger had only said that Rabbi Feibush was unable to arrange a valid divorce. He had not said specifically that he knew a reason invalidating the divorce. His utterances were idle talk and inconsequential gossip. The Herem of Rabenu Tarn was not applicable. Mordecai Hamburger should recant publicly, confess his error, pay a sum of money to charity, and fast for one day. The next Responsum printed in Maaseh Rav is that of the Hacham Zvi Ashkenazi. He was an outstanding Halachic scholar, respected by Ashkenazim and Sephardim alike. He was a native of Moravia who had also studied under Sephardi Rabbis in Salonika and had occupied the post of Hacham in Sarajevo. At this time he was Klaus Rabbiner in Altona. In the course of time he was to succeed Rabbi Loeb Gharif as Rav of the Amsterdam Ashkenazim. It was to Zvi Ashkenazi that the London Sephardim had appealed in 1704 when their Hacham David Nieto was accused of heresy by some of his congregants. Indeed, Ashkenazi's son Jacob Emden reports, they admired him so much that some years later they offered him the post of Hacham with the fabulous stipend of ?1,000 a year?an offer which he declined because he did not wish to bring up his family as Sephar? dim. Be that as it may, his opinion on matters of Jewish Law was and still is regarded with great respect. Hacham Zvi gave four reasons for invalidat? ing the Herem on Mordecai Hamburger. First, the testimony against him was heard in his absence and could therefore not be used. Secondly, Mordecai Hamburger did not fully appreciate the consequences of his action. Since he was not fully aware of the punishment which would follow from his offence, he was a Shogeg?one who transgressed in error?and therefore, under Jewish Law, he was not liable to the full penalty for the offence. Thirdly, Rabbi Feibush was a party to the dispute and therefore disqualified from examining the wit? nesses, and the testimony collected by him was inadmissible. Finally, the divorce in question was a contingent divorce, which only became effective after the conditions named in it had been fulfilled. If Anschel Katz were to return from his journey within the specified period or to keep in touch with his wife, no one would be affected by doubts cast on the validity of the document. Rabbi Loeb Huna, of Rotterdam?Fei bush's predecessor as Rav of London?gave a reply in general agreement with the other two Rabbis, but containing further original sug? gestions of his own. He said that Mordecai Hamburger was entitled to voice doubts about the validity of a bill of divorce issued in secrecy. It should have been examined by three scholars in addition to the witnesses and also submitted to the Sephardi Hacham. He quotes an authority who holds that a witness to a divorce who subsequently has reason to feel doubtful about its validity has a duty to declare his doubts while the matter can still be put right. Rabbi Loeb Huna felt that a con? ditional divorce is no divorce until it has be? come operative. He quotes a parallel from the laws concerning vows. A conditional vow can? not be annulled, it is no vow until it has become effective. Finally, Rabbi Loeb Huna con? sidered the Flerem of Rabenu Tam a punish? ment more severe than the death penalty. For</page><page sequence="7">144 G. W. Busse while the offender who is condemned to death atones for his guilt with his death, the Herem of Rabenu Tam persists even beyond the grave. Since the Herem is more severe than death, the laws appropriate to the death penalty apply to the Herem of Rabenu Tam. To understand this argument one must bear in mind that the death penalty was almost abolished in Jewish Law by limiting it to cases where two witnesses were both present at the crime and these two witnesses warned the offender directly before the commission of the crime that it would be punishable by death. Rabbi Loeb Huna reasons that, since the Herem of Rabenu Tam is a punishment more severe than death, the offender must first be warned of the consequences of his offence by two witnesses both present at the same time. The same two witnesses must also be present when the offence is committed. In the case of Mordecai Hamburger two witnesses gave evidence that he had disputed the validity of Anschel Katz's divorce, but each testified about a different occasion. They had, further, not been examined by three expert assessors, as would have been necessary in a capital case. Moreover, Rabbi Feibush, who examined the witnesses, was a party to the case. Therefore, Rabbi Loeb Huna concluded, Mordecai Hamburger was not liable to the Herem of Rabenu Tam. To these Responsa Rabbi Johanan adds yet another argument. Because the text of Rabenu Tarn's edict refers to 'any Jew who casts doubt on the validity of any divorce' in the present tense, it can be deduced that the Herem applies only to one who persists in his allega? tion and not to one who retracts it. Rabbi Feibush, in his pamphlet Urim Vetumim, expresses disappointment that none of the Rabbis consulted supported his decision. He complains bitterly that Hacham Zvi opposed his view without first hearing his side of the case. He points out that when the London Sephardim asked Hacham Zvi to decide the dispute between Nieto and his opponents in the previous year, Hacham Zvi agreed to intervene in the case only if both parties jointly invited him to judge the issue. Yet in this case he gave his opinion without hearing both parties. Feibush also complains that Johanan, who sat with him as a colleague on the Beth Din, had withheld his counsel and worked against him. He tries to refute Hacham Zvi's argument that the witnesses who testified against Mor? decai Hamburger in his absence are dis? qualified from repeating their evidence in his presence, by quoting a doubtful decision in a case of bribery, where it was decided that a witness who had received a bribe and thereby been disqualified may be admitted to give evidence after returning the bribe. Feibush's reasoning is weak here, because the ruling he cites is not generally accepted. He goes on to counter the argument that a conditional divorce is not a divorce until after the fulfilment of its con? ditions10 by deducing that since it is always described as a divorce it therefore is a divorce in law. He argues further that since Rabenu Tarn's edict speaks of 'any Jew who casts doubt on the validity of any divorce', the phrase 'any divorce' obviously comprehends a conditional divorce, hence it may be reckoned that the Herem was applicable to Mordecai Hamburger. Most of his arguments are of this kind. Rabbi Feibush was obviously well schooled in Jewish Law, but he loses sight of the fact that it was harsh and inequitable to subject an offender to a punishment which cannot be mitigated when he is ready to repent and make amends. Feibush gets lost in casuistry and for? gets that justice must underlie the Law and that punishments must be appropriate to the offence. Throughout the controversy Rabbi Johanan and Rabbi Feibush treat each other with respect. Rabbi Johanan uses a few expressions of abuse against Feibush in the introductory remarks to his Maaseh Rav, but it almost seems as if they were added as an afterthought. This lack of strong language in both pamphlets is remarkable, when one considers the strong and often abusive language used in Responsa literature. One suspects that they were emo? tionally less bitter about the dispute than their respective patrons Mordecai Hamburger and Reb Aberle. With regard to the opinions expressed by the Rabbis who issued Responsa in this case, it is</page><page sequence="8">The Herem of Rabenu Tarn in Queen Anne's London 145 arguable that Rabbi Loeb Huna might have borne a grudge against Feibush, who sup? planted him as Rav in London, but Hacham Zvi was certainly impartial, and was in fact on good terms with both Hamburger and Aberle. Nor had Rabbi Loeb Harif any personal motive in the matter. I have found another decision of earlier date and great authority which also goes against the views of Rabbi Feibush. Rabbi Moses Isserles, the leading sixteenth-century Ashkenazi inter? preter of Halacha, gave a decision concerning a disputed divorce in Prague.11 A man chal? lenged the validity of a bill of divorce and gave three good reasons for his opinion. He was threatened with the Herem of Rabenu Tam. Isserles ruled, and others supported him, that the Herem was inapplicable. They laid down that the Herem of Rabenu Tam applies solely to a person who was present at the ceremony of divorce, did not then protest, but spread the story that the divorce was invalid after the divorced woman had remarried. Isserles ruled that a person who believes a divorce to be invalid and voices his opinion at once so that the matter can be put right is doing his duty and can certainly not be placed in Herem. According to this ruling?which oddly enough none of the Rabbis consulted chose to quote?Mordecai Hamburger could not have been placed in (lerem.12 The outcome of the controversy was that Rabbi Feibush, probably urged on by Reb Aberle, still refused to release Mordecai Hamburger from the indefinite Herem. Mor? decai Hamburger founded his own synagogue, which became known as the Hambro' Syna? gogue, and installed Rabbi Johanan as Rav of the new congregation. There is a ruling in Jewish Law that one who imposes a Herem on another unjustly thereby puts himself in Herem, and I suppose that the members of the Hambro' congregation adopted this attitude towards Rabbi Feibush and his supporters. There are other disputes reported in Rab? binic literature, especially the famous Get of Cleves, where mention is made of the Herem of Rabenu Tarn,13 but I know of no case? apart from the one in London?where any person actually suffered under this crushing ban. We can say, in conclusion, that the Responsa of the learned Rabbis concerning the excommunication of Mordecai Hamburger in London in 1705 laid down a new basis for interpreting the Law and, as far as we know, since this incident the perpetual and irrevoc? able Herem of Rabenu Tarn has never again been enforced. %* This paper was delivered to the Society on 19 February 1962. NOTES 1 Professor David Kaufmann (1852?1899) was a professor at the Budapest Rabbinical Seminary and a distinguished researcher into Judaica, with many publications to his credit. He was joint editor of the Monatsschrift f?r die Wissenschaft des Judentums from 1892 to 1899. 2 Emden lived c. 1698-1776, but his Megillat Sepher was published many years later, in 1896, in Warsaw. 3 Gl?ckel of Hameln (1646-1724), of Germany, is famous for the memoirs she wrote in Judeo German after she was widowed in 1689. Her simple and charming story has much sociological value. It has been translated into English in this century. 4 English Jews were inclined to imitate and admire the customs of the Sephardim. On the Continent the Sephardim were considered by the Ashkenazim to be ignorant and lax in religious observance. This is borne out by a responsum of the Hacham Zvi (No. 38), which was written at the beginning of the eighteenth century. He was asked by some London Sephardim if they could join the Ashkenazi community, because the Sephardim called sinners and public breakers of the Sabbath to the Reading of the Law. The Hacham Zvi printed the question as put to him in Ladino and translated it into Hebrew. He ruled that the questioners could join the Ashkenazi community in spite of the different style of prayer and a rule forbidding them to do so. Further, the Yavits, in his book Megillat Sepher, mentions on page 116 that the Hacham Moses Hagiz was very lax in his observance of the laws of Shabbat. Dr. Zimmels (Principal ofjews* College, London), in his book Ashkenazim and Sephardim, mentions on page 290 that the Sephardim did not light Hanukah</page><page sequence="9">146 G. W. Busse lamps in Hamburg until the arrival of the Ash? kenazim, through whose good example they again celebrated Hanukah in the proper manner. 5 The source of this law is a passage in the Mishnah (Avodah Zarah 2, 6). These things of the Gentiles are forbidden, but it is not forbidden to have benefit from them: milk which a Gentile milked but no Israelite saw it. There are two conflicting interpretations of this passage. The stricter view is that the text must be rigidly followed and that it contains an ordinance similar to that concerning wine, which is forbidden if produced or even handled by non-Jews, even when otherwise quite free of unclean substances. This opinion was expressed by Chatam Sopher (b. Frankfort-on-Main, 1762, d. Pressburg, 1839) in his responsum, Toreh Deah, No. 107. The more lenient view is based on an attempt to find the probable reasons behind the statement in the Mishnah. According to this opinion the ordinance was issued to ensure that milk drunk by Jews is unpolluted by any milk from unclean animals. It is therefore sufficient to make certain that the milk came from a clean animal, whether or not it was milked in the presence of a Jew. This interpretation is supported by two Sephardi scholars, Salomon ben Tsemach Duran (lived in Algiers in the sixteenth century.) (Sefer Hatashbats, Part 4, No. 32) and Hezekiah ben David de Silva (b. Livorno, 1659, d. Jerusalem, 1698) in his book Peri Chadash, Toreh Deah, 115. De Silva's books were banned in Egypt as heretical in 1697-1698 and his remarks on the question of unsupervised milk have been omitted from some editions of the Shulhan Aruch, in which his book is reproduced abbreviated in note form. This has continued to be a contro? versial subject until our time. Some years later Judah Loeb Norden, of London, wrote to ask Jacob Emden whether there was any truth in the story that he, Emden, had taken coffee in a London coffee house. Norden considered this to be forbidden partly by reason of the pro? hibition on unsupervised milk. Emden admitted that he drank coffee as reported but regretted his action, which he did in error. She'elot Tavits, Part II, No. 142. 6 This regulation might have been instituted to prevent Ashkenazim from buying meat from the Sephardi butcher. Ashkenazim are not allowed to eat meat killed in accordance with Sephardi rules because these are less strict than the Ashkenazi ones in matters of inspection after slaughter. 7 It is interesting to note that Jacob Emden asked permission to form a Minyan?that is, a quorum for prayers?in his house when he settled in Altona. This permission was at first granted and later withdrawn, when he accused Jonathan Eibesch?tz, the Rav of the three communities (Hamburg, Altona, and Wandsbeck), of being a follower of Sabatai Zvi, the false Messiah. This rule forbidding a second Minyan seems to be against Jewish Law and conflicts with enactment No. 21 of Rabenu Gershom ben Judah (965-1028 or 1010): 'Jews who want to form a new Minyan should not be prevented from doing so by the older established congregation.' It is possible that the Sephardim in Spain under pressure from outside instituted this rule, which the Ashkenazim of Hamburg and London copied. 8 According to Finkelstein, Jewish Self-government in the Middle Ages, p. 45, this was Rabbi Moses of Pontoise. Urbach, in Baale Hatosaphot, thinks it was Rabbi Moses ben Rabbi Solomon Hacohen (pp. 82 and 159). 9 Mordecai, Gittin No. 455 (mri). 10 In Jewish Law a bill of divorce is only valid if motivated by hatred. A bill of divorce granted for reasons of convenience or affection is invalid, just as a collusive divorce would be in English Law. This principle has been relaxed slightly to meet certain cases of special hardship, and a conditional divorce (Get al Tenai), even though collusive, is valid for certain purposes. It can release a widow from the need of Halitza and it can prevent a woman becoming an Aguna and thus enable her to remarry, but it is not effective otherwise. (See Aruch Hashulhan, Gittin 145, 1. If, for example, Anschel Katz, having granted his wife a conditional divorce before departing for the Indies, were to have stayed away longer than the period specified in the bill of divorce and were then to have returned home again to find that his wife had not remarried, his divorce would have been void and his marriage still binding, unless terminated by a fresh divorce. 11 Resp. 55. 12 In the Responsa of the Maharam of Lublin (Meir ben Gedaliah of Lublin; 1558-1616) we find under No. 123 a statement by the famous Mordecai ben Abraham Yaffe (b. Prague 1530, d. there 1612). He states that the ban of Rabenu Tam applies only to a person who was present at the execution of the divorce and who thinks that it was not arranged in accordance with Law. Instead of voicing his doubts at once, he waits until the woman has remarried and protests only when it is too late to correct the matter. This statement by Mordecai Yaffe is very similar to the ruling of Moses Isserles, whose pupil he was. 13 In 1765, about 60 years after the London incident, there was a dispute over a divorce arranged by the Rav of Cleves (Kleve), a town in Germany near the Dutch border. The Rav of Mannheim and the Beth Din of Frankfort both declared this divorce invalid and forbade the re? marriage of the divorcee. There was a vigorous controversy and two books were published setting out the arguments of the protagonists. The Herem of Rabenu Tam was cited again and again, but it was never in fact pronounced against anyone, so the question of the limit of its application was not dis? cussed. It was hardly possible for the Rav of Kleve to excommunicate the Rav of Mannheim and the entire Beth Din of Frankfort-on-Main. Among</page><page sequence="10">The Herem of Rabenu Tarn in Queen Anne's London 147 others, Hacham Zvi's grandson Salman, then Rav of the Hambro Synagogue in London, wrote a letter to his father, Jacob Emden, at Altona, concerning his divorce. The husband concerned in the divorce was then resident in London. (Or Hayashar, pp. 78 79. ACKNOWLEDGMENTS Some years ago I discussed the sources on which this paper is based with my kinsman and dear friend, Wilfred Samuel, of blessed memory, late Vice-President of the Jewish Historical Society, and it was he who sug? gested that I prepare a paper for this Society. If he had lived I would surely have had the benefit of his expert advice. However, I have been fortunate, as Wilfred Samuel's son Mr. Edgar Samuel stepped into the breach and assisted me by rearranging the material and rephrasing the whole paper. I greatly enjoyed our collaboration and wish to express my gratitude to Mr. Edgar Samuel for his help, which involved him in great labour and trouble.</page></plain_text>