The Question Whether a Jew can be Lord Chancellor of England

<plain_text><page sequence="1">THE QUESTION WHETHER A JEW CAN BE LORD CHANCELLOR OF ENGLAND. By H. S. Q. HENRIQUES, M.A., B.O.L. (Paper read before the Jewish Historical Society of England on May 18, 1914.) The question whether a Jew can hold the office of Lord High Chancellor of England has recently been raised. I have already discussed this question in The Jeivs and the English Law, and given what I believe are conclusive reasons for answering this question in the affirmative.1 Since the appearance of that book, the well-known and authoritative work entitled The Latus of England has been published under the editorship of Lord Halsbury, who himself for many years held the high office of Lord Chancellor. In a letter published in The Jewish Chronicle of February 6, 1914, Mr. S. S. Abrahams has called attention to a passage in that work bearing upon this subject. The passage occurs at the end of note (a) on page 56 of the seventh volume, and is as follows: "The provisions of sec. 2 of the Religious Disabilities Act, 1846 (9 &amp; 10 Yict. c. 59) may also be noted, by which His Majesty's subjects professing the Jewish religion are to be subject to the same laws as Protestant subjects in respect to their schools, places for religious worship, educa? tion, and charitable purposes, and the property held therewith, and not further or otherwise. Whatever the effect of the above provisions may be, it would clearly be held unconstitutional by Parliament for any person other than a Protestant to be appointed [Lord Chancellor]. The Irish Lord Chancellor may, however, be a Roman Catholic." I do not know who was responsible for writing this passage; the 1 See The Jews and the English Law, Oxford, 1908, pp. 261-263. 55</page><page sequence="2">56 THE QUESTION WHETHER A JEW CAN BE article on Constitutional Law in which it occurs is the joint production of four authors; but I cannot help thinking that it can never have received due consideration from the general editor or any other lawyer of high standing. For my own part I have never seen in any work professing to be a serious treatise upon law more appalling ignorance displayed than in the lines quoted. In the first place, the Religious Disabilities Act has nothing what? ever to do with the subject under discussion; it has not the remotest connection with the right to hold public offices and does not profess to deal with it. Again, who can say what will be held constitutional by Parliament, and how can such a forecast be relevant in a legal treatise ? The history of the question is as follows. Until the year 1858 a Jew could not hold the office of Lord Chancellor because he was unable to take the oath required of every one appointed to the office, on account of the concluding words of the oath, "on the true faith of a Christian." 1 The Jewish Relief Act of 18582 enacted that "Whenever any of His Majesty's subjects professing the Jewish religion shall be required to take the said oath, the words ? and I make this declaration upon the true faith of a Christian' shall be omitted." So that thenceforth a Jew could be appointed to and hold a public office, but several important posts, including that of Lord Chancellor, were expressly excepted by the 3rd section of the Act, which reads as follows: " Nothing herein con? tained shall extend or be construed to extend to enable any person or persons professing the Jewish religion to hold or exercise the office of Guardians and Justices of the United Kingdom or of Regent of the United Kingdom, under whatever name, style, or title such office may be constituted, or of Lord High Chancellor, Lord Keeper, or Lord Com? missioner of the Great Seal of Great Britain or Ireland, or the office of Lord-Lieutenant or Deputy or other Chief Governor or Governors of 1 The declaration not to injure the Established Church, which in the year 1828 had been substituted (by 9 Geo. IV, c. 17) for the Sacramental Test imposed by the Test Act of 1673 on office-holders, also ended with the words " on the true faith of a Christian," but the necessity for making this declaration in the case of Jewish office-holders was obviated by means of the Annual Indemnity Acts (see pp. 251-252 of The Jews and the English Law) until it was finally abolished by the Qualification for Offices Abolition Act of 1866 (29 &amp; 30 Viet. c. 22). 2 20 &amp; 21 Viet. c. 49.</page><page sequence="3">LORD CHANCELLOK OF ENGLAND. 57 Ireland, or His Majesty's High Commissioner to the General Assembly of the Church of Scotland." These words are practically identical with sec. 12 of the Roman Catholic Relief Act, 1829, by which Roman Catholics are excluded from the same offices, which section has never been repealed. The last section of the 1858 Act, which is copied from sees. 17 and 18 of the Roman Catholic Relief Act of 1829, provides that where any ecclesiastical patronage belongs to an office held by a Jew, the right of presentation shall devolve upon and be exercised by the Archbishop of Canterbury for the time being. It is obvious that this last section, which is still unrepealed and in full force, would have been wholly un? necessary if the legislature had thought that the mere fact that an office enabled its holder to interfere in ecclesiastical offices would render a Jew incapable of holding it. In the year 1867 the Office and Oath Act (30 &amp; 31 Yict. c. 75), by providing that " Every subject of His Majesty shall after the passing of this Act be eligible to hold and enjoy the office of Lord Chancellor of Ireland or Lord Keeper or Lord Commissioner of the Great Seal in Ireland without reference to his religious belief," decreased the small list of offices for which Jews and Roman Catholics were ineligible. Finally the Promissory Oaths Act of 1871 (34 &amp; 35 Viet. c. 48) repealed sec. 3 of the Jewish Relief Act of 1858, but did not repeal sec. 12 of the Roman Catholic Relief Act of 1829. Consequently, whatever the position of Roman Catholics may be, a Jew can now hold any of the offices from which he was formerly excluded by the express words of the Jewish Relief Act. A statement to this effect was recently made by Lord Reading at the dinner given in his honour by the Maccabseans, and his great predecessor in the office of Lord Chief Justice of England, Lord Coleridge, said in his famous summing up to the jury in the case The Queen v. Ramsay and Foote : "I think that these old cases can no longer be taken to be a statement of the law at the present day. It is no longer true in the sense in which it was true when these dicta were uttered that f Christianity is part of the law of the land.' Noncon? formists and Jews were then under penal laws, and were hardly allowed civil rights. But now, so far as I know the law, a Jew might be Lord Chancellor. Certainly he might be Master of the Rolls ; and the great judge, whose loss we have all had to deplore,1 might have had to try 1 Sir George Jessel.</page><page sequence="4">58 THE QUESTION WHETHER A JEW CAN BE such a case, and if the view of the law supposed be correct, he would have had to tell the jury, perhaps partly composed of Jews, that it was blasphemy to deny that Jesus Christ was the Messiah, which he himself did deny, and which Parliament had allowed him to deny, and which it was part of the law of the land that he might deny." 1 It is plain, then, that the appointment of a Jew as Lord Chancellor would not be illegal, but, says the writer in The Laws of England, it would be "unconstitutional," or rather he says, not venturing to express a con? clusion of his own, apparently because he has no grounds upon which to base it, " it would clearly be held unconstitutional by Parliament." Such a proposition cannot be supported by any known principle of law. It is true that the Lord Chancellor is said to be the Keeper of the King's conscience, and it might be contended that as the King must by the Bill of Rights be a Protestant and by the Act of Settlement join in communion with the Church of England, the keeper of his conscience must also be a member of the National Church; but this would prove too much, for by such reasoning Protestant Dissenters would be excluded as well as Jews and Roman Catholics, but it is universally admitted that Protestant Dissenters can hold the office. Moreover, if this reasoning were correct, it would have been wholly unnecessary to except expressly this office from those thrown open to Roman Catholics and Jews by the Roman Catholic Relief Act of 1829 and the Jewish Relief Act of 1858. Unconstitutional properly means not in harmony with, nor autho? rised by, the political constitution. According to the British Constitution every subject of the King is eligible for any and every office unless some disability is imposed upon him either by statute or the common law. No disability in respect of religious opinions is known to the common law; indeed it was on this account that it was found necessary to pass the legislation imposing tests upon all persons appointed to public offices in order to ensure that their religious views should be in accordance with those of the majority. These religious tests have now been swept away, but in the statutes giving relief from them to Roman Catholics and Jews certain offices were expressly mentioned from which the adherents of these religions were still to be excluded. This last provision, so far as it 1 15 Cox C.C., p. 235, anno 1883.</page><page sequence="5">LOKD CHANCELLOR OF ENGLAND. 59 relates to Jews, has been unreservedly repealed; so that a Jew is no longer ineligible for any of the offices in question. But the writer may say, "All this argument may be correct, but Parliament would certainly hold it to be unconstitutional." As to this, let us see what has actually been said in Parliament by persons regarded as great constitutional authorities. In the year 1872, just after the passing of the Promissory Oaths Acts, 1871, which repealed the disabling clause of the Jewish Relief Act, the Attorney-General was asked whether a Roman Catholic or a Jew could hold the office of Lord Chancellor of England or Lord-Lieutenant of Ireland. The answer of Sir John Duke Coleridge, who was then Attorney-General, was, as far as the Jewish part of the question is con? cerned, as follows : " With respect to the Jews, they could always take the declaration and oaths, and what kept the Jews out were the words, 1 on the true faith of a Christian'; but as the statute of 1867 omitted these words, the Jews could take the oath, and could consequently hold any office either in England or Ireland."1 Again in 1891 Mr. Gladstone, in moving the second reading of the Religious Disabilities Removal Bill?the object of which was to enable Roman Catholics to be appointed to the office of Lord Chancellor of England and Lord-Lieutenant of Ireland?said, "Now, Sir, Roman Catho? lics are ineligible for these two offices. Who, then, are eligible ? Consider what the British Empire is. Consider what it includes. Consider all the professions of religion and all the professions of non-religion that make up the vast body of the community of the Queen's subjects. It might seem invidious to draw any distinction between one body of Christians and another; but pray recollect that there is no legal obstacle, so far as I can learn?and I rejoice that there is no legal obstacle to going beyond the Christian pale?no legal obstacle to the holding of the Lord Chancellorship, ecclesiastical patronage and all, by a Jew, by a Mahommedan, by a Buddhist, by a Hindoo. All these, under your Protestant Constitution, can hold the office of Lord Chancellor." 2 In the same debate Mr. Asquith said, "What is there to differentiate the office of Lord Chancellor from other high offices of State ? Nothing except the fact that in some books the Lord Chancellor is described as 1 Hansard, vol. 211, pp. 280-283. 2 Ibid., vol. 349, p. 1749.</page><page sequence="6">60 THE QUESTION WHETHER A JEW CAN BE the Keeper of the Queen's conscience?a relic of the time when the Lord Chancellor was an ecclesiastic, because no one else was well educated enough to discharge the duties of the office. The Lord Chancellor was entrusted with the presentation to the King's livings under 20 marks and afterwards under ?20 in value, in order that he might be able to provide pensions and rewards for clerks in the Court of Chancery. The clerks, like their master, were necessarily ecclesiastics, because they could read and write and had sufficient education for the duties they had to discharge. The Lord Chancellor is no longer an ecclesiastic, and the clerks are no longer ecclesiastics, and the whole question of patronage is provided for by the Bill; but the matter is one of detail, subject to amendment in Committee. Suffice it that it would be impossible for a Catholic Lord Chancellor to have any voice whatever in the distribution of patronage. How far is the argument to be carried ? The Queen's conscience may be kept by a Jew (when the patronage is exercised by the Archbishop of Canterbury); by a Nonconformist, bound by his principles to look upon the Established Church as an offence, and yet entitled to present to each living as it becomes vacant; or by an agnos? tic, a man who will assert or deny any of the principles which all religious people believe to be of the very essence of religion." 1 These are statements deliberately made in Parliament by men, one of whom was then and the other has since become, a great statesman and authority on constitutional questions. It is true that both these men belonged to the Liberal party, and that the Bill they advocated was not passed by the House, but throughout the whole course of the debate the propositions in question remained unchallenged, and were actually accepted by the opponents of the Bill. For example, Colonel Sanderson, a Tory of the old school, said in answer to Mr. Gladstone's speech, "The main part of the right hon. gentleman's argument was enforced in a most eloquent appeal to the House not to choose out one religion at which this blow is to be aimed, and he pointed out that disqualifications are not placed on Buddhists, Mahommedans, or Hindoos. The disqualifica? tions which at one time were placed on Roman Catholics were aimed at their Church for a great reason and object, and that was that the Roman Catholic Church sought to establish supreme authority in this land, 1 Hansard, vol. 349, pp. 1776-1777.</page><page sequence="7">LORD CHANCELLOR OF ENGLAND. 61 which none of the other religions did. But I have not the shadow of a doubt that, if any of those other religions had attempted to establish in this country?as the Roman Catholic Church attempted in former times?a political domination and supreme authority, exactly the same restrictions would have been imposed upon them." 1 Moreover the Unionist ministry, which was then in power, actually confirmed the statement as to the law made by their opponents, so that one of their supporters, Mr. De Lisle, who as a Roman Catholic felt himself bound to vote against his party on this occasion, used the follow? ing words in explaining his action: " It has been made clear in the debate by her Majesty's Ministers2 that it is not necessary that the Lord Chancellor should be a member of the Established Church. If by my vote I were to express the view that a Roman Catholic could not be trusted to perform honestly duties which a Jew or an agnostic may be entrusted with, I should be casting a slur on my co-religionists." 3 The statement, therefore, as to what Parliament would do, so far from being an accurate forecast of what Parliament is likely to do in the future, is wholly unsupported by the course of debate in the past, when the question was actually raised in the House of Commons. In reality it merely expresses the unreasoning opinion?I think I may say pre? judice?of the writer, and as such, should have no place in a serious legal treatise. It is a blot on an otherwise great work. [After the reading of the above paper an interesting discussion took place upon the difference in the status of Roman Catholics and Jews in this matter. No doubt the intention of the legislature, when the Jewish Relief Act of 1858 was passed, was to place Jews in the same position as Roman Catholics, and for that purpose sec. 3 was inserted in the Jewish Relief Act corresponding to sec. 12 of the Roman Catholic Relief Act of 1829, and couched in almost identical words. But the position was altered in the year 1871 by the Promissory Oaths Act, which expressly repealed sec. 3 of the Jewish Relief Act, while it expressly retained 1 Hansard, vol. 349, p. 1780. 2 I.e. Mr. W. H. Smith, Mr. H. Matthews, and Sir R. Webster. 3 Hansard, vol. 349, p. 1793.</page><page sequence="8">62 CAN A JEW BE LORD CHANCELLOR OF ENGLAND. sec. 12 of the Catholic Relief Act, 1829, though it repealed many other sections of that Act. It would appear that at this period the legislature did not intend to extend to Roman Catholics that wide measure of toleration which was conferred upon all other Dissenters. Indeed a few years earlier the Test Abolition Act of 1867 (30 &amp; 31 Viet. c. 62), which abolished the necessity for making the Declaration against Transub stantiation, and so rendered the passing of the Annual Indemnity Act no longer necessary to enable Roman Catholics to hold offices, expressly provides that " Nothing in this Act contained shall be construed to enable any person professing the Roman Catholic religion to exercise or enjoy any civil office, franchise, or right for the exercise or enjoyment of which the taking, making, or subscribing the Declaration by this Act abolished is now by law a necessary qualification, or any other civil office, franchise, or right from which he is now by law excluded." The Promissory Oaths Act of 1871 and other legislation, including the Statute Law Revision Act of 1863, repealed all the enactments which imposed upon the holders of offices the necessity of taking oaths and the making of declarations obnoxious to Roman Catholics, but sec. 12 of the Roman Catholic Relief Act and sec. 2 of the Test Abolition Act of 1867 have never been repealed. Consequently, inasmuch as Roman Catholics are eligible at common law to hold the office of Lord Chancellor, and were only excluded by the provisions of statutes which have since been repealed, they are now eligible unless the two sections referred to, which are still in force, can be held to have not merely excepted certain offices when others were thrown open, but to have created a substantive disability against Roman Catholics. It is not the place to discuss this question, but Sir John Coleridge gave it as his opinion, in the answer in the House of Commons already referred to, that such a disability no longer existed.1 In respect to the Jews, however, the similar disabling section has been expressly repealed, and it is no longer arguable that such a disability exists in their case.] April 13,1915. 1 Hansard, vol. 211, pp. 280-283.</page></plain_text>