A^ '/y S-' 1 f Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924090934799 In compliance with current copyright law, Cornell University Library produced this replacement volume on paper that meets the ANSI Standard Z39.48-1992 to replace the irreparably deteriorated original. 2002 FROM THE INCOME OF THE FISKE ENDOWMENT FUND THE BEQUEST OF Librarian of the University 1868-1883 1905 3184 THE JEWS AND THE ENGLISH LAW BY H. S. Q. HENRIQUES, M.A., B.C.L, OF THE NORTHERN CIRCUIT, BARRISTER-AT-LAW FORMERLY SCHOLAR OF WORCESTER COLLEGE AND VINEHIAN SCHOLAR IN THE UNIVERSITY OF OXFORD OXFORD PRINTED BY HORACE HART, AT THE UNIVERSITY PRESS Issued to Members of the Jewish Historical Society of England, in Commemoration of the fiftieth anniversary of the passing of Acts enabling Jews to sit in Parliament, July 23, 1858 July 23, 1908 OXPOEB: HORACE HAET PEIBTER TO THE umVEKSTTY PREFACE This book consists of a series of ten articles contributed to the Jewish Quarterly Review. I have to express my profound thanks to my friends Mr. Israel Abrahams and Mr, Claude G. Montefiore, the editors of that periodical, for their assistance in their republication. Dealing, as they do, with legal problems of considerable diflSculty, and intended to be read by the general reader as well as by the lawyer, they of necessity run the risk of being found too difficult by the former, and not sufficiently deep or learned by the latter, even as Critias of old was said to be lSia>Ti]S fi€v kv (piXocTOCpois, ^i\6 Early history of the Jews in England. Saxon times ... 5 f"*"j Legal status of the Jews after the Norman Conquest . . . 53 ■ Exchequer of the Jews 54 Statutes restricting the Jews' civil rights 54 Banishment of the Jews 55 Effect of the banishment on the revenue of the King . . .56 Theories concerning the banishment : (i) Lord Coke's 58 (2) Prynne's 59 (3) That the expulsion was by a synod held in London . 62) Period between the banishment and the return of the Jews . 62 The disappearance of villenage 63 Consequences of the Reformation 65 The law of heresy 65 Alterations in the law of heresy 68 Heresy and the Court of High Commission 71 Abolition of the Court of High Commission .... 72 The law of Uniformity 73 Recusants 75 Legal position of the Jews at the beginning of Charles I's reign 77 Treaty with Spain, 1630. Spanish crypto-Jews .... fg\ The Great Rebellion. Ascendancy of the Independents . . 82 Petition of the Jews of Amsterdam, 1648-9 .... 84 Modification of the laws against recusancy 86 Freedom of worship not extended to all Christian sects , . 88 Continuation of the negotiations with the Jews of Amsterdam . 88 Menasseh ben Israel 88 The Whitehall Conference, 1655 89 Result of the Conference 91 Menasseh's second petition, March, 1655-6 .... 92 Departure and death of Menasseh 92 CONTENTS IX V PAGE Failure of Menasseh's mission 94 Cromweirs toleration 95 Theory that a "tolerance " was granted to the Jews by Cromwell in February, 1658 97 Theory that the Committee of the Council of State reported in favour of admitting the Jews 99 Theory as to the return of the Jews founded on the proceedings against Antonio Robles (March-May, 1656) . . . 102 The true bearing of the Robles case 105 Theory that Cromwell gave a special authorization to John Sadler to build a synagogue 107 Theory founded on the antiquity of the Spanish and Portuguese cemetery at Mile End 109 VI Cromwell's attitude to the Jews 1 15 The legal position of the Jews under Cromwell the same as under Charles I 116 Cromwell did not grant and had no power to grant special privileges to the Jews in respect of their religion . -117 Position at the time of Cromwell's death. Previous intrigues of the Jews in Holland with the Royalists . . . .118 Menasseh's failure made the Jews of Holland incline to Charles II 119 Commission to Lt.-Gen. Middleton to treat with them . .120 Their hopes destroyed by the battle of the Dunes . . . 121 Interval between the death of Cromwell and the Restoration. Increase in the number of the Jews here . . . . 121 First mention of a Jewish synagogue in England . . .122 No change in the legal status of the Jews till the Restoration . 124 The Restoration of the king and Resettlement of the Jews . I25__ Charles II an advocate of toleration in an intolerant age . .126 The Convention Parliament and toleration 127 The new Parliament, 1661 128 Members ordered to take the Sacrament . . . . .128 The Corporation Act 129 The Quakers' Act 129 The Act of Uniformity, 1662 130 First Declaration of Indulgence, 1662 130 The Conventicle Act, 1664 133 Bill for granting Liberty of Conscience rejected . . . .134 The Five Mile Act, 1665 134 Second Conventicle Act, 1670 I3S X CONTENTS PAGE Declaration of Indulgence, 1672 136 The power to issue the Declaration questioned in the Commons. The Declaration cancelled 138 The Test Act, 1673 139 The Parliamentary Test Act, 1678 140 VII Petitions against the Jews at the time of the Restoration . . 142 Position of the Jews after the Restoration 144 The first synagogue 145 The secrecy surrounding the synagogue discarded at the end of 1662 or heginning of 1663 146 An organized community formed 146 1664. Threatened attack on the Jews. Petition to the king. His gracious answer 1 47 Inquiry concerning the Jews ordered by the House of Commons 148 1673. Prosecution of the Jews for meeting for the exercise of their religion 149 The Jews petition the king and obtain an Order in Council to stay the proceedings against them 149 Entering a noUe prosequi on an indictment a new way of exercising the Dispensing Power 1 50 Progress made in the Establishment of a Jewish community in the reign of Charles II 151 Accession of James II. His religious policy .... 152 Jews arrested and charged with recusancy 15 3 On the petition of Joseph Henriques and others a formal Order in Council made staying the proceedings. . . . 154 Dispute between James II and Parliament concerning the Dis- pensing Power 154 The struggle transferred to the Law Courts. James issues his Declaration of Indulgence 156 The illegality of James's proceedings 157 Did not aifect the Jews 157 Views on toleration at the time of the Revolution . . .158 The Toleration Act 159 Extension of the benefits of the Toleration Acts . . . . 161 Relief from the Test and Corporation Acts 162 Legislative relief from the penal laws at length given to the Jews 162 Parliament and the Jews. Attempt to lay special taxation upon them 164 Mention of Jews in the Act imposing taxation on marriages . 166 The Act against Blasphemy 167 CONTENTS xi PAGE The Act to oblige Jews to maintain their Protestant children. The de Breta case 167 Relaxation in favour of the Jews of the Act compelling land- owners to take the oath of abjuration .... 170 Similar privileges given the Jews by other Acts of Parliament. The Colonial Naturalization Act, 1740 . . . .170 Lord Hardwicke's Marriage Act, I7S3_^ 170 The Jewish Naturalization Act, 1753 . > 171 The Jews admitted to the benefit of the Toleration Act, 1845 and 1846. Till then they were protected only by the Dispensing Power of the king .'^1717 Resulting anomaly in the law as to the Registration of synagogues^! 73 Advantages of certifying a synagogue 174 Summary of the foregoing account of the legal recognition of the Jewish religion 17S VIII Distinction between civil and political rights .... 177 The law of the land applied to the Jews on their return ; but the abolition of villenage exempted them from the operation of the ancient statutes concerning the Judaei . . . ■ '178 Right of a Jew to be a witness in a Court of law . . . "178 Witnesses not sworn on the New Testament may be guilty of perjury 180 A Jew may be sworn on the New Testament if he does not object 182 The Oaths Act, 1838 182 Arrangement of cause lists so that Jewish cases should not be taken on the Jewish Sabbath or holidays .... 183 Jewish religious scruples recognized by the law merchant. A Jew excused from giving notice of dishonour of a bill of exchange on a Jewish holiday 184 Capacity of Jews to bring actions 185 Coke's theory that infidels are perpetual enemies . . . 186 The capacity of a Jew to sue admitted in 1684 .... 188 Coke's theory overruled by the Courts 189 Coke's theory not altogether groundless 190 Capacity of Jews to hold real property 191 Ordinance of 127 1 forbidding Jews to hold land discovered by^ Dr. Tovey in 1738 VJ2j> Capacity of Jews to hold advowsons 194 Jews and the benefit of clergy Cl9|^ The practice of administering the necessary oath upon the New Testament the cause of the civil disabilities of the Jews . 198 xii CONTENTS PAGE Jews excluded from the freedom of the city of London . -199 Quakers in a better position than Jews in this respect . . 200 Jews and trade in the city of London. Not more than twelve allowed to be brokers 200 The disability removed, Dec. 10, 1830 201 Exclusion from the legal and other professions .... 202 The annual Indemnity Acts 203 Jews admitted to the bar, 1833 203 Admission of Jews as solicitors, 1770 . , . . . . 205 The profession of schoolmasters and tutors 206 Dissenters disabled from teaching in the public schools and colleges 207 The Religious Disabilities Act, 1846 208 The Universities and Dissenters 208 The Universities Tests Act, 1871 210 Jews and the lower branches of education 211 Private schools 212 Public schools 212 Endowed schools 213 The Endowed Schools Act, 1869 214 Public elementary schools 215 The Cowper-Temple clause 217 Religious instruction in non-provided schools . . . .217 Higher grade and technical schools 218 Poor law schools 219 Reformatory schools 219 Industrial schools 220 IX The obligation to take certain oaths the cause of Jewish disabilities 221 The oath of allegiance and supremacy 221 Persons on whom it was imposed 222 A new oath of obedience or allegiance, 1606 .... 222 The oath directed against Popish Recusants .... 224 The oaths of allegiance and supremacy recast at the time of the Revolution 225 Introduction of the oath of abjuration in 1701 .- . . . 226 Jews unable to take the new oath 228 Later history of these promissory oaths 228 Mode of administering the oaths 229 Effect of promissory oaths 229 The acquisition of British nationality 229 CONTENTS xiii PAGE Former status and disabilities of aliens 230 The special taxation of aliens 230 Who are aliens by English law 233 The Roumanian Law as to aliens 233 How aliens can acquire British nationality .... 334 The colonial trade closed to aliens by the Navigation Act of 1660 * 235 Jews made denizens by Charles II 236 Naturalization by Act of Parliament 237 Naturalization confined to Protestants by a statute of 1609 . 238 General Naturalization Acts 238 The Plantation Act, 1740 240 The Jews Naturalization Act, 1753 241 The Jews Naturalization Repeal Act, 1754 243 Unsuccessful attempt to take away the right of Jews to be naturalized in the colonies 245 Recent changes in the law of naturalization .... 245 The Parliamentary franchise 246 Provision in the Ballot Act for voting on Saturday . . . 247 Offices in corporations and under the Crown .... 247 Motives of the Corporation and Test Acts 248 Repeal of the Corporation and Test Acts 249 Declaration not to injure the Established Church substituted for the Sacramental Test 249 The Lords add the words " On the true faith of a Christian " to the new Declaration 251 Effect of the new Declaration on the political status of the Jews 251 Relief given to Roman Catholics and Quakers in 1829 and 1837 respectively 253 Declaration to be taken by Sheriffs Act, 1835 .... 253 Mr. Salomons refused admission to the office of Alderman . . 254 The Jewish Disabilities Removal Act of 1845 .... 255 The Oaths Act and the Jewish ReUef Act of 1858 . . . 256 Subsequent legislation 256 Taking the insignia of office to a place of religious worship . 257 Device of fining Dissenters for refusing to serve the office of sheriff 258 Jews not liable to these fines 261 S. 3 of the Jewish Relief Act of 1858, disabling Jews from holding certain higb offices, repealed in 1871 .... 261 A Jew may now be Lord Lieutenant of Ireland or Lord Chancellor 262 Ecclesiastical patronage attached to an office held by a Jew . 263 XIV CONTENTS PAGE X Mr. Robert Grant's Jews' Civil Disabilities Bill, 1830-36 . . 265 1836-47. Minor measures of relief from political disabilities . 267 1847. Baron de Rothschild elected to represent the city of London in Parliament 267 1847-8. Lord John Russell's Jewish Disabilities Bill . . . 268 1849. Lord John Russell's Parliamentary Oaths Bill . . . 269 1850. Baron de Rothschild having resigned and been re-elected attempts to take his seat 269 1851. Lord John Russell's Oath of Abjuration (Jew) Bill . . 270 Mr. Salomons purports to take the Oath of Abjuration without pronouncing its final words 270 Mr. Salomons takes his seat in the House and refuses to withdraw 27 1 Subsequent proceedings in the House of Commons . . . 273 The case of Miller v. Salomons 274 The judgment affirmed on appeal 276 Lord John Russell's Jewish Disabilities Bill of 1853 . . . 277 1854. Lord John Russell's Parliamentary Oaths Bill refused a second reading by the House of Commons . . . 279 1856. Mr. Milner Gibson's Oath of Abjuration Abolition Bill . 280 1857. Lord Palmerston's Oaths Bill 281 The opposition to Jewish Emancipation grows weaker . . 283 The Bill is rejected by the House of Lords 284 1857. Lord John Russell's Oaths Validity Amendment Bill . 284 Not receiving facilities from the Government the Bill is abandoned 285 Baron de Rothschild again resigns and is re-elected . . . 285 Select Committee appointed to consider whether a Statutory Declaration might under the Act of 1835 be substituted for Parliamentary Oath 286 The autumn session of 1857 : Lord John Russell's Oaths Bill . 286 Pall of Lord Palmerston's Government, and the formation of a Conservative Ministry under Lord Derby . . . 287 The Oaths Bill read a third time in the Commons . . . 287 The Bill in the Lords. The fifth clause, enabling Jews to omit the final words of the oath, rejected in committee . . 288 Baron de Rothschild appointed a member of the Commons' Committee for drawing up reasons for disagreeing with the Lords' amendments 288 The legality of the appointment 289 The Commons' reasons 290 Conference between the two Houses 291 CONTENTS XV PAGE 291 292 292 293 293 294 296 297 297 298 Lord Lucan'a suggestion for compromise The suggestion favourably received The Lords insist on their amendments. Carrying out the compromise Lord Lucan's Jewish Relief Bill . The Lords' reasons for insisting on their amendments The House of Commons and the compromise Baron de Rothschild takes his seat in the House The real character of the '" compromise " . The settlement hastened by the fall of the Liberal Government The exclusion of the subject from the arena of party conflict a benefit to the Jews 299 The praiseworthy conduct of Baron de Rothschild and Mr. Salo- mons 300 An inconvenience arising from the form of the settlement remedied by Act of Parliament 300 The "compromise" upset by the Parliamentary Oaths Act of 1866 301 The power of the House of Lords to exclude Jews voluntarily abandoned by the former opponents of Jewish emancipa- tion 302 Lord Rothschild created a peer in 1885 . . . . ; 304 The Office and Oaths Act, 1867 304 The Promissory Oaths Act, 1868 304 The Promissory Oaths Act, 1871, throws open to Jews the high offices from which they were excluded by the Jevrish Relief Act of 1858 305 Cheonolooical Table 306 Addenda and Corrigenda 315 Index 318 TABLE OF CASES PAGE Anon. (1683), I Vernon, 263 152 re., 179 Anon. (1684), Lilly's Practical Register, vol. I, p. 4 . 188, 152 n. Attorney-General e. Baxter (1684), I Vernon, 248, and (1689) 2 Vernon, 105 19 ». Attorney-General v. Drummond (1842), i Drury and Warren, 380 25 ». Attorney-General v. Lucas [1905], i Ch. 68 . . .24 n., Addenda Attorney-General v. Mayor of Bristol (1820), 2 Jacob and Walker, 294 21 n. Attorney-General ». Pearson (1817), 3 Merivale, 353 . 14 n., 19 re., 24 Alderman Baokwell's case (1683), I Vernon, 152 . 107 n., Addenda Barker c. Warren (1677), 2 Modern Reports, 271 . 152 «., 183 Bedford Charity, in re the Masters, Governors, and Trustees of 35 seq. • 30 300 «. . 25 n. . ■zgn. the (1818), 2 Swanston, 470 .... Blundell's Trusts, in re (1861), 30 Beavan, 360 . Bradlaugh ». Gossett (1884), L. R. 12 Q. B. D. 271 Bradshaw v. Tasker (1834), 2 Mylne and Keene, 221 . Breeks v. Woolfrey (1838), I Curteis' Eccl. Sep., 880 . Brittonc.Standish (1704), cases temp. Holt, 141, and 3 Salkeld, 88 74 n. Calvin's case (1608), 7 Coke's Reports, i . . . . 186, 190 Chamberlain of London v. Evans. See Harrison. Da Costa v. De Paz (1743), Ambler, 224, i Dickens, 258, and 2 Swanston, 481 19, 33, 42 De Wilton, in re, De Wilton v. Montefiore, L. R. [1900] 2 Ch. 489 49.51 East India Co. v. Sandys (1683-5), ^ Howell's State Trials, 371 seq., 2 Shower, 366, and Skinner, 132 . . 117 «., 187 Edenborough e. Archbishop of Canterbury (1826), 2 Russell, III 247». Edwards v. Bishop of Exeter (1S39), 7 Scott, 676, and 5 Bingham, New Cases, 652 194 n. Egerton v. All of Odd Rode, L. R. [1894] P. 15 . .29 «., Addenda Elliott, «'» >-f (1891), Weekly Notes, 9 30 «. Endowed Schools Act, 1S69, in re, and in re Christ's Hospital (1890), L. R. 15 A. C. 172 215 «. 1) xvui TABLE OF CASES PAGE Fineberg v. Adler and the Liverpool Sohechita Board (1904). See the Standard, Feb. 26 and 27 and Liverpool local papers of these dates 184 Fish u. Klein (18 17), 2 Meri vale, 431 ilin. Fleetwood, in re, Sidgreaves v. Brewer (1880), L. R. 1 5 Ch. D. 594 30 n. Ganer v. Lady Lanesborough (1790), I Peake, 25 . . 182 n. Gilbert v. Buzzard and Boyer (1821), 2 Haggard's Consistory Cases, 333 lll«. Goddard f. Smith (1764), 8 Modem Reports, 264 . . i5o»- Godden v. Hales (1686), XI Howell's State Trials, 1166, and 2 Shower, 475 156 w., 173 n. Gomez Serra v. Munez (1728), 2 Strange, 821 .... 180 Habershon «7. Vardon (1851), 4 De Gex and Smale, 467 . . 25 Harrison, Sir Thomas (Chamberlain of London) v. Evans (1767), 3 Brown's Parliamentary Cases, 465, and Cobbett's Parlia- mentary History, vol. XVI, pp. 313-27 . 160, 259, 260 ». Heath v. Chapman (1857), 2 Drewry, 417 20 Hingeston v. Sydney [1908], L. R. i Ch. 126 . . 26 «., Addenda Inhabitants of St. Andrew's Undershaft v. De Breta (1701), I Lord Raymond, 699 168 Isaacs V. Gompertz (1783), Ambler, 228 «., I Dickens, 169 n., and 7 Vesey Junior, 61 22, 33 Israel v. Simmons (1818), 2 Starkie, 356 32 Le Louis, the case of (1817), 2 Dodson, 210. . . . 191 ?j. Lindo V. Belisario (179S), I Haggard, Consistory Cases, 216. . 49 Lindo ». Unsworth ( 1 811), 2 Campbell, 602 185 Lyons, ea;^arte (1750), Ambler, 89 201 Marshall v. Graham, L. R. [1907] 2 K. B. 112 . 216 »., Addenda Mayor of Guildford ». Clarke (1690), 2 Ventris 247 . . 260 «. Mellish e. Da Costa (1737), 2 Atkyns, 14 8 ». Michel's Trusts, m re (i860), 28 Beavan, 39. . . 25 «., 26-30 Miller v. Salomons (1852), 8 State Trials, New Series, 163, 7 Exchequer, 475 ; 8 Exchequer, 778 ; 21 Law Journal, New Series, 161, 16 .Turist, 375 .... 225 n., 274 seq. Mirehouse v. Rennell (1833), 7 Bligh, New Series, 322 . 195 n. Moggridge ». Thackwell (1802), 7 Vesey Junior, 36 . . 19,22 Moses Marcus, ex parte (1722-3) and (1726-7), Sanders' Orders in Chancery, I, 457, 524 Muegrove v. Chun Teeong Toy, L. R [1891] A. C. 272 Nayler's Case (1656), V Howell's State Trials, 801 . 6-8 117 ». . 82 n. . 29 n., Addenda . . . . 63 • 197 L.R. [i897]2Q. B. 64 199, 300, 229 TABLE OF CASES xix PAGK Omychund v. Barker (1744), Willes, 538, i Atkyns, 21, and I Wilson, 84 180-82, 189 Orme ». Nutt (1699), I Lord Raymond, 486 10 Pearson v. Stead, L. R. [1904] P. 66 . Pigg V. Caley (161 7), Noy, 27 Poulter's case (1610), 11 Coke's Reports, 29 . Powell V. The Kempton Park Racecourse Co., 242 and ib. [1899], A. C. 143 . R. V. Bosworth (1739), 2 Strange, 11 12 R. J). Richard Carlile (1819), 3 Barnewall and Alderson, 161 . 14 R. V. Francia (1717), XV Howell's State Trials, 897 . . . 179 R. V. Gilham (1795), I Espinasae, 286, and 6 Term Reports, 265 . 182 R. V. Bartholomew Legatt (1612), II Howell's State Trials, 729 . 70 R. V. Osborne (1732), 2 Barnardiston, 138 and 166 ; Wm. Kelynge, 231 ; 2 Swanston, 503 n. ; and Sessions Cases, 260 . . 9, 10 R. V. Parry (1811), 14 East, 549 24gn. R. V. the Turkey Company (1760), 2 Burrows, 943, and id. 1000 200M. R. V. Edward Lord Vaux (1612), i Bulstrode, 199 . . . 229 R. and Morrioe v. the Mayor of Lincoln (1698), 12 Modern Rep. 190, and 5 Modern Rep., 399-403 .... 200 «. R. and Reg. p. Larwood (1694), I Lord Raymond, 29, and 4 Modern Rep., 269 261 n. Reg. V. Humphery (1838), 3 Neville and Perry, 681, (1839) 10 Adolphua and Ellis, 335 255 Reg. V. Price (1884), L. R. 12 Q. B. D. 247 .... ill n. Reg. V. Ramsey and Foote (1883), 15 Cox, Oi-iminal Cases, 231 12, 263 n. Robeley V. Langston (1667), 2 Keble, 314 . . . 152M., 179 Sidney, in re, Hingeston v. Sidney, L. R. [1908] I Ch. 126 26 n., Addenda Sommersett's Case (1771), XX Howell's State Trials, i . . 63 Steavenson, in re (1823), 2 Barnwell and Cresswell, 34 . 249 n. Straus V. Goldsmid (1837), 8 Simon, 614 23 Tassel v. Lewis (1695), l Lord Raymond, 743 ... 185 n. Thomas ». Sorrel (1674), Vaughan, 330 .... 173 n. Tirlot V. Morris (1611), I Bulstrode, 134, and Telverton, 198 231 n. Villareals. MeUish (1737), 2 Swanston, 533 .... 8 Vincent ». Fernandez (i 718), I Peere Williams, 524 ... 4 Wells V. Williams (1697), I Lord Raymond, 282, and i Salkeld, 46 189 West V. Shuttleworth (1835), 2 Mylne and Keen, 684 . . 28, 31 Zap Chea Neo ». Ong Cheng Neo (1875), L. R. 6 P. C. 396 . . 31 b2 TABLE OF STATUTES PAGE Ancient Saxon Statutes 52, S3 Law of Edward the Confessor 53 Magna Cliarta 61, 117 n., 229-30 54 & 55 Henry III (Ordinance prohibiting the Jews from holding land) 192, 54, 64 3 Edw. I (Statute de la Jeuerie or de ludaismo) 54, 58, 59, 62, 64, 192 1 5 Edw. II (Act banishing the Despensers) 78 5 Rich. II, stat. 2, cap. 5 (for the aiTest of preachers of heresy) . 66 2 Hen. IV, c. 15 (De Haeretico) 67 2 Hen. V, stat. i, c. 7 (against Lollardry) 68 I Rio. Ill, c. 9 (Restraints upon aliens) . . . . 231 ». I Hen. VII, c. 2 (Customs to be paid by aliens made denizens) 231 n. I I Hen. VII, c. 14 (Customs to be paid by aliens made denizens) 23 1 n. 14& 15 Hen. VIII, c. 2 (Apprentices of strangers artificers) . 231 n. 22 Hen. VIII, c. 8 (Denizens strangers to pay strangers customs) 231 n. 23 Hen. VIII, c. 10 (Assurances of lands to churches, &c.) . . 29 ra. 25 Hen. VIII, c. 14 (against heretics) 69 ». 25 Hen. VIII, c. 22 (concerning the King's succession) . .221 26 Hen. VIII, c. 2 (Oath of obedience to the King and the heirs of his body by Queen Anne) 221 28 Hen. VIII, c. 7 (concerning the succession of the crown) . 221 31 Hen. VIII, c. 14 (Act of the six Articles) . . . . 69 w. 32 Hen. VIII, c. 2 (Statute of Limitations, 1540). ... 63 32 Hen. VIII, c. 16 (Aliens, alien artificers, and denizens) . 231 n. 35 Hen. VIII, c. I (for the establishment of the King's succession) 221 I Edw. VI, c. I (the Sacrament) 69 ». I Edw. VI, c. 12 (for the repeal of certain statutes concerning treasons and felonies) 69 «. '. Edw. VI, c. 14 (the Act for chantries collegiate) . . . 29 m. ', & 3 Edw. VI, c. I (Act of Uniformity, 1 548) . . . . 69 ». I &. 2 Phil. & Mar., c. 6 (reviving the statutes against heretics) . 69 1 Eliz., c. I (Act of Supremacy) . . -69, 76, 200, 208, 221-2 I Eliz,, 0. 2 (Act of Uniformity) 73, 76 XXll TABLE OF STATUTES PAGE 5 Eliz., c. I (for the assurance of the Queen's Royal Power) 202 n., 222 l8 Eliz., c. 7 (to take away the benefit of clergy in certain cases) 196 23 EHz., c. I (to retain the Queen's subjects in their due obedience) 2, 74, 87, 153, 207 ra. 29 Eliz., c. 6 (for the due execution of the Act to retain the Queen's subjects in their due obedience) .... 74 35 Eliz., c. I (to retain the Queen's subjects in their due obedience) 75,87,133 35 Eliz., c. 2 (for restraining Popish recusants to certain places of abode) 75 I (2 Ruff.) Jac. I, c. 4 (for the execution of the statutes against Jesuits, recusants, &c.) 207 n. 3 Jac. I, c. 4 (for discovering and repressing Popish recusants) 75, 76, 77, 222-4 3 Jac. I, c. 5 (to prevent dangers which grow by Popish recu- sants) 76, 77, 113, 194 «. 7 Jac. I, c. 2 (Naturalization and restoration of blood) . . 238, 241 7 Jac. I, c. 6 (for administering the oath of allegiance) 76 «., 202 n., 208, 223 21 Jac. I, c. 6 (female convicts and benefit of clergy) . . l<)yn. 16 Car. I, c. II (for the abolition of the Court of High Com- mission) . 72 Ordinance of March, 164^, cap. 51, substituting the Directory for Public Worship for the Book of Common Prayer . . 83 Ordinance of 23 Aug., 1645, cap. 57 ("The Directorie to be put in execution with Penalties for using the Book of Common Prayer") 83 Ordinance of May 2, 164S, cap. 114 (for punishing blasphemies and heresies) , . .82 Ordinance of September 27, 1650, cap. 27 (Repeal of several clauses in statutes imposing Penalties for not coming to Church) 87, io7«. Navigation Act, October 9, 165 1, cap. 22 88 The Instrument of Government, December 16, 1653 . . 87,117 The Humble Petition and Advice, May 25, 1657, cap. 6 Addenda, 97 «., 117 The Ordinance for the better Observance of the Lord's Day, 1656, cap. 15 Addenda, 97 n. 12 Car. II, c. 4 (for granting a subsidy of tonnage and poundage) 231 «. 12 Car. II, c. 18 (Navigation Act, 1660) . . . 144, 231, 235 13 Car. II, stat. 1, c. 12 (for explaining 16 Car. I, c. 11) . . 7: TABLE OF STATUTES xxiii PAGE 13 Car. II, stat. I, c. 14 (for confirming Acts of the Convention Parliament including the Navigation Act, 1660) . 144 w. 13 Car. II, stat. 2, c. I (Corporation Act, 1661) . . 129, 247, 258 14 (13 & 14 Ruff.) Car. II, c. I (against Quakers) . 129, 161 n. 14 (13 & 14 Ruff.) Car. II, c. 4 (Act of Uniformity, 1662) 9, 130, 206, 213,249 15 Car. II, c. 15 (for encouraging the manufactures of linen cloth and tapestry) 239 16 Car. II, c. 4 (Conventicle Act, 1664) 133 17 Car. II, c. 2 (Five Mile Act, 1665) .... 134, 161 ra. 22 Car. II, c. I (Second Conventicle Act, 1670) . . 9, 135, 161 n. 25 Car. II, c. 2 (Test Act, 1672) 139, 156 n., 248 25 Car. II, c. 6 (Aliens Duty) 231 n. 29 Car. II, c. 9 (for taking away the writ de heretico coniburendo) 73 30 Car. II, stat. 2 (Parliamentaiy Test Act, 1678) . . . 140 I Will. & Mar., c. I (Declaring the Convention a Parliament) . 225 I Will. & Mar., c. 8 (appointing new oaths of allegiance and supremacy) 225, 202 n., 208 iWill.&Mar.,c. 18 (The Toleration Act, 16S8) 159-62,9,19,20,173,260 I Will. & Mar., c. 26 (to vest in the Universities the presentations of benefices belonging to Papists) . . . . 194 n. I Will. & Mar., sess. 2, c. 2 (The Bill of Rights) . . , 76, 172 3 Will. & Max., c. 9 (Benefit of Clergy) .... 197 n. 6 & 7 Will. Ill, c. 6 (An Act for granting duties upon Marriages, &c.) 166 7 & 8 Will. Ill, c. 22 (The Act for preventing frauds and regu- lating abuses in the Plantation Trade) .... 235 7 & 8 Will. Ill, c. 27 (For the better security of His Majesty's Person and Government) 246 7 & S Will. Ill, c. 34 (Making the solemn affirmation of Quakers equivalent to an oath) 200 n. 9 (9 & 10 Rufi'.) Will. Ill, c. 35 (c. 32 RufF.) (For the more effectual suppressing of Blasphemy and Profaneness) 13, 167, 212 II (11 & 12 RufF.) Will. Ill, c. 4 (To prevent the further growth of Popery) 4, 161 «. 12 & 13 Will. Ill, c. 2 (The Act of Settlement) . . 234,238,240 13 & 14 (13 Ruff.) Will. Ill, c. 6 (For the further security of succession to the Crown in the Protestant line) 226, 228 n, I Anne, c. 16 (stat. I, c. 22 RufF.) (for alterations in the oath appointed by 13 & 14 Will. Ill, c. 6) . . . 22S n. I Anne, c. 24 (stat. i, c. 30, RufF.) (The Act to oblige the Jews to maintain and provide for their Protestant children) . 3, 167 XXIV TABLE OF STATUTES TAQE 6 (5 Ruflf.) Anne, c. 9 (c. 6 RufF.) (Benefit of Clergy) . . . 197 6 (5 Ruff.) Anne, c. 11 (c. 8 Ruff.) (The Act of Union with Scot- land) 228 n. 6 Anne, c. 41 (c. 7 Ruff.) (The Succession to the Crown Act, 1707) 228 n. 6 Anne, c. 64 (c. 37 Ruff.) (The Act for the encouragement of Trade to America) 239 6 Anne, c. 78 (c. 23 Ruff.) (The Scotch Representative Peers Act, 1707) . . . . , 246 7 Anne, c. 5 (Foreign Protestants Naturalization Act, 1708) 233 ». 10 Anne, c. 6 (c. 2 Ruff.) (The Occasional Conformity Act, 1711) 257, 258 11. 13 Anne, c. 7 (12 Anne, stat. 2, c. 7 Ruff.) (The Schism Act, 1713) 257 13 Anne, c. 13 (12 Anne, stat. 2, c. 14 Ruff.) (The Presentation of Benefices Act, 1713) 194«. I Geo. I, stat. 2, c. 4 (Disahling clause to be inserted in Naturaliza- tion Bills) 238 n. I Geo. I, stat. 2, c. 13 (For the further Security of His Majesty's Person and Government, &c.) 202, 208, 228 »., 268, 277 n., 289 5 Geo. I, c, 4 (For strengthening the Protestant interest in these Kingdoms) 257, 258 n. 5 Geo. I, c. 6 (The Act for quieting and establishing corpora- tions) ........... 248 8 Geo. I, c. 6 (Forms of AflSrmation or Declaration for Quakers) 200 n. 9 Geo. I, c. 24 (To oblige persons refusing to take the Oaths to register their names and real estates) .... 170 10 Geo. I, c. 4 (To explain and amend 9 Geo. I, c. 24) 170, 191, 200, 206, 27s 1 Geo. II, stat. 2, c. 23 (First annual indemnity Act) . . 203 2 Geo. II, c. 31 (Indemnity Act, 1729) 202 4 Geo. II, c. 21 (The British Nationality Act, 1730) . . 233 w. 9 Geo. II, c. 26 (Indemnity Act, 1737) 202 13 Geo. II, c. 3 (For the better supply of mariners) . . . 239 13 Geo. II, c. 7 (The Plantation Act, 1740) . . . 170, 240, 241 20 Geo. II, c. 44 (Naturalization in the American colonies) . 241 n. 22 Geo. II, c. 45 (For the encouragement of the Whale Fishery) 240 22 Geo. II, c. 46 (Continuancy of laws ; affirmations of Quakers) 200 «., 268 n. 26 Geo. II, c. 26 (Jewish Naturalization Act, 1753) 241-S, 163 n., 171, 192, 194 26 Geo. II, c. 33 (Lord Hard wicke's Marriage Act, 1753) . .170 27Geo. II,c. I (Jewish Naturalization Act Repeal Act, 1754) 243-5, 194- 2 Geo. Ill, c. 25 (Naturalization of Protestants sei'ving in America) 23c TABLE OF STATUTES xxv PAQI! 6 Geo. Ill, c. 53 (The Act for altering the Ocath of abjuration, &c„ now known as the Treason Act, 1766) . . . 226-8 13 Geo. Ill, c. 21 (The British Nationality Act, 1772) . . 233 n. 13 Geo. Ill, 0. 25 (To explain 13 Geo. II, c. 27 and 2 Geo. Ill, *^- 25) 241 «. 18 Geo. Ill, c. 60 (Sir George Savile's Act) . . . . 161 «. 19 Geo. Ill, c. 44 (The Nonconformist Relief Act, 1779) . . 207 20 Geo. Ill, c. 20 (For the better supply of mariners and seamen) 239 24 Geo. Ill, sess. 2, c. 16 (For discontinuing the petty custom on aliens' goods, &c.) 231 ». 26 Geo. Ill, c. 50 (For the encouragement of the southern whale fishery) 240 «. 28 Geo. Ill, c. 20 (Encouragement of the southern whale fishery Amendment Act) 240 n. 31 Geo. Ill, C.32 (Roman Catholic Relief Act, 1791) . l6ln., 173, 207 33 Geo. Ill, c. 4 (Lord Grenville's Aliens Act, 1793) . , . 232 34 Geo. Ill, c. 42 (For allowing aliens in foreign colonies sur- rendered to His Majesty to trade, &c.) . . . 236 n. 35 Geo. Ill, 0. 92 (For further encouraging the southern whale fisheries) 240 ». 37 Geo. Ill, c. 63 (For allowing aliens in foreign colonies sur- rendered to His Majesty to be merchants or factors, &c.) 236 n. 43 Geo. Ill, c. 30 (Roman Catholic Relief Act Amendment Act, 1803) 161 «. 45 Geo. Ill, c. 32 (For allowing aliens in foreign colonies surren- dered to His Majesty to be merchants or factors, &c.) 236 «. 52 Geo. Ill, c. 155 (The Places of Religious Worship Act, 1812) 130 n., 135, 161 n., 173 53 Geo. Ill, c. 127 (The Ecclesiastical Courts Act, 1813) . . 187 «. 53 Geo. Ill, c. 160 (Unitarians Relief Act, 1813) . . .15, 161 n. 6 Geo. IV, c. 67 (To alter and amend 7 Jac. I, c. 2) . . . 245 6 Geo. IV, c. 105 (To repeal the several laws relating to the customs) 236 «. 7 Geo. IV, c. 54 (Registration of Aliens Act, 1826) . . 232 ». 7 & 8 Geo. IV, c. 28 (For improving the administration of justice in criminal cases) ........ 197 9 Geo.IV,c.l7(Sacramental Tests Repeal Act, 1828) . 249, 129, i62n. 10 Geo. IV, c. 7 (Roman Catholic Relief Act, 1829) 161 n., 246, 253, 258, 261, 263, 279 2 & 3 Will. IV, c. 115 (The Roman Catholic Chaiities Act, 1832) 23, i6l n., 208 «. 3 & 4 Will. IV, c. 30 (The Poor Rate Exemption Act, 1833) 174 n. XXVI TABLE OF STATUTES PAGE 5 & 6 Will. IV, c. 28 (SheriiFs' Declaration Act, 1835) . . 253 5 & 6 Will. IV, c. 36 (The Parlianientary Elections Act, 1835) Addenda, 247 n. 5 & 6 Will. rV, c. 50 (The Highway Act, 183s) . , . 174 ». 5 & 6 Will. IV, 0. 62 (The Statutory Declarations Act, 1835) . 285 6 & 7 Will. IV, c. II (The Registration of Aliens Act, 1836) . 232 I & 2 Vict., c. 5 (Quakers' ReUef Act, 1837) .... 253 I & 2 Vict., c. IS (Quakers' further Relief Act, 1838) . . . 253 I & 2 Vict, c. 105 (The Oaths Act, 1838) . . . 182, 271, 275 3 & 4 Vict., c. 77 (The Grammar Schools Act, 1840) . . . 213 7 & 8 Vict., c. 66, s. 5 (Mr. Hutt's Naturalization Act, 1844) III n., 245 7 & 8 Vict., 0. 102 (To repeal certain penal enactments made against Roman Catholics) 3, 77«., 162 8 & 9 Vict., c. 52 (Jewish DisabUitiea Removal Act, 1845) . 255, 286 9 & 10 Vict., c. 59 (The Religious Disabilities Act, 1846) 9' 23, 27, 65, 77 n., 163, 174, 208 II & 12 Vict., 0. 20 (Removal of Aliens Act, 1848) . . 232 ». 15 & 16 Vict., c. 43 (Disabilities Repeal Act, 1852) , . 277 w. 16 & 17 Vict., c. 137 (Charitable Trusts Act, 1853) . . 174 w. 17 & 18 Vict., c. 81 (Oxford University Act, 1854) . . . 209 18 & 19 Vict., c. 81 (Places of Worship Registration Act, 1855) 174 18 & 19 Vict., c. 86 (Liberty of Religious Worship Act, 1855) 23, 174 19 & 20 Vict., c. 88 (Cambridge University Act, 1856) . . 209 21 & 22 Vict., c. 48 (The Oaths Act, 1858) . . . 236, 228 «., 256 21 & 22 Vict., c. 49 (The Jewish Relief Act, 1858) 195, 228 n., 261, 263, 293 seq., 305 23 & 24 Vict., c. II (The Endowed Schools Act, i860) . .213 23 & 24 Vict., c. 63 (Jewish Relief Act Amendment Act, i860) . 301 25 & 26 Viot., c. 43 (The Poor Law (Certified Schools) Act, 1862) 219 26 & 27 Vict., c. 125 (The Statute Law Revision Act, 1873) . 67*1. 29 & 30 Vict., c. 19 (The Parliamentary Oaths Act, 1866) . . 301 29 & 30 Vict., c. 22 (The Qualification for Offices Abolition Act, 1866) 256 29 & 30 Vict., c. 117 (The Reformatory Schools Act, 1866) . 219, 220 29 & 30 Vict, c. 118 (The Industrial Schools Act, 1866) . . 220 30 & 31 Vict, c. 59 (The Statute Law Revision Act, 1867) . . 246 30 & 31 Vict, c. 75 (The Office and Oath Act, 1867) 304, 228 «., 256 n., 258 »., 261 30 & 31 Vict., c. 88 (The Indemnity Act, 1867) . . . 252 n. 31 & 32 Vict., c. 72 (The Promissory Oaths Act, 1868) 304-5, 228 n., 252 n. 31 & 32 Vict, c. 118 (The Public Schools Act, 1868) . . .212 TABLE OF STATUTES XXVU PAGE 32 & 33 Viot., c. 56 (The Endowed Schools Act, 1869) . 213, 214 32 & 33 Vict., c. 58 (The Public Schools Act, 1869) . . .212 32 & 33 Vict., 0. no (The Charitable Trusts Act, 1869) . . 174 33 & 34 Vict., 0. 14 (The Naturalization Act, 1870) in n., lyon., 245 33 & 34 Vict., c. 52 (The Extradition Act, 1870) . . . 233 ». 33 & 34 Vict., c. 75 (The Elementary Education Act, 1870) 215-17 33 & 34 Vict., 0. 77 (The Juries Act, 1870) . . Addenda, 175 n. 34 & 35 Vict., 0. 26 (The Universities Tests Act, 1871) 208, 210-11 34 & 35 Vict., c. 48 (The Promissory Oaths Act, 1871) 305, 129 n., 228 n., 256 »., 262, 294 34 & 35 Vict., c. 60 (The Public Schools Act, 1871) . . . 212 34 & 35 Vict., c. 116 (The Statute Law Revision Act, 1871) 258 m. 35 & 36 Vict., c. 33 (The Ballot Act, 1872) 247 36 & 37 Vict., 0. 41 (The Public Schools (Harrow) Act, 1873) . 212 36 & 37 Vict., c. 62 (The Public Schools (Eton) Act, 1873) . 212 36 & 37 Vict., c. 87 (The Endowed Schools Act, 1873) 213, 215 n. 37 & 38 Vict., c. 87 (The Endowed Schools Act, 1874) 213, 215 n. 45 & 46 Vict., c. 61 (The Bills of Exchange Act, 1882) . 185 n. 2 Edw. VII, c. 42 (The Education Act, 1902) . . . 217, 218 5 Edw. VII, 0. 13 (The Aliens Act, 1905) 232 THE JEWS AND THE ENGLISH LAW When in 1655 Menasseh Ben Israel presented his famous memorial to Cromwell praying that the Jews might be received in England and permitted to exercise their religion, the Lord Protector summoned an assembly to declare their opinions on the matter. Two judges, the Lord Chief Justice Glyn and the Lord Chief Baron Steel, were members of that assembly, and they delivered their joint opinion that " There was no law which forbids the Jews' return into England." The assembly was ultimately dissolved without coming to any definite decision respect- ing the memorial, but shortly afterwards Jews in ever- increasing numbers settled in this country, and as we know, for a long period laboured under many disabihties ; it may be not uninteresting to show by the evidence of the statute book and the law reports — in truth the only authentic means of proof — that the opinion of the judges was well founded, even if taken in its broadest meaning, namely, that the law of England imposed no burden or disability upon Jews as such. In an age of intolerance no doubt Jews felt the efiects of intolerance^ but these effects were also felt by all who did not conform to the religion as by law established ; and if some of these effects pressed more heavily upon Jews than upon others, this was in all cases a mere accident, though it in fact made it more difficult for Jews than others to obtain absolute equality before the law. The courts of law, though they have, as in duty bound, enforced the provisions of the statute book, have always shown great tolerance and impartiality towards the Jew, and have, so far as is consistent with B 2 THE JEWS AND THE ENGLISH LAW the faithful administration of the enactments ordained by Parliament, resisted the not infrequent attempts to make use of their machinery for the purpose of persecution ; and there are even instances on record of the executive govern- ment having stepped in and prevented an abuse of the process of the Court when there were no other means of preventing injustice being done. Let us first turn to the account the law reports have to give us of attacks made upon the exercise of the Jewish religion. In the appendix to Haggard's Consistory Court Cases we find that in the year 1673 certain Jews trading in and about the City of London were indicted of a riot at the Guildhall for meeting together for the exercise of their religion in Duke's Place, and the bill was found against them by the Grand Jury. A petition was there- upon presented to the King in Council at Whitehall by Abraham Delivera, Jacob Franco Mendez, Abraham de Porto, and Domingo Francia, on behalf of themselves and others, praying to be permitted to exercise their religion freely or to be given a convenient time to withdraw their persons and estates into parts beyond the seas ; and on Feb. II it was ordered by the Eing in Council "that Mr. Attorney General do stop all proceedings at law against the Petitioners, who have been indicted as aforesaid and do provide they may receive no further trouble in this behalf^." Yet in a few years' time they were destined to receive further trouble, for in 1685 one Thomas Beaumont caused several writs to be issued out of the King's Bench under the statute made in the twenty-third year of Queen Elizabeth against forty-eight of the Jewish nation, and thirty-seven of them were arrested " as they were following their occasions on the Royal Exchange to the great pre- judice of their reputation both here and abroad." By the Statute of Elizabeth, an Act expressly directed against the Papists, and passed at a time when there were no recognized Jews in England, all persons above the age of sixteen years ' I Hag., Con., Appendix, p. 2. THE JEWS AND THE ENGLISH LAW 3 " whicli shall not repair to some church, chapel, or usual place of common prayer " were to forfeit a penalty of £%o a month, and in addition be bound with two sureties until they should confonn themselves and come to church. As an indictment for riot could no longer be laid, the upholders of intolerance availed themselves of this old statute, even in those days obsolete, which was not formally repealed till 1844 (7 & 8 Vict. c. 103). However, a petition was presented by Joseph Henriques, Abraham Delivera (one of the petitioners in 1673), and Aaron Pacheco, overseers of the Jewish synagogue, on behalf of the Jewish nation, praying His Majesty to permit and suffer them as here- tofore to have the benefit of the free exercise of their religion during their good behaviour towards His Majesty's Government. It was accordingly on Nov. 13 ordered by the King in Council "that His Majesty's Attorney General do stop all the proceedings at law against the Petitioners : His Majesty's intention being that they should not be troubled upon this account, but quietly enjoy the free exercise of their religion, whilst they behave themselves dutifully and obediently to his government ^." From this time forth there is no record in the law reports of any attempt to interfere with the free exercise of the Jewish religion. This is not a little surprising in an intolerant age, when the many statutes directed against Papists and Protestant Nonconformists were equally applic- able to Jews and might have been rigidly enforced against them. It must not, however, be supposed that there were no Anti-Semites in those days; indeed in the year 170a they succeeded in passing thi-ough Parliament an Act — entitled An Act to oblige Jews to maintain and provide for their Protestant children — the avowed purpose of which was to assist the conversion of the Jews to the religion of the land. The Act (i Anne, st. i, c. 30) provides that "to the end that sufficient maintenance be provided and allowed for the children of Jewish parents who shall turn ' I Hag., Con., Appendix, p. 3. B a 4 THE JEWS AND THE ENGLISH LAW Protestants be it enacted . . . that ' if any Jewish parent, in order to the compelling of his or her Protestant child to change his or her religion shaU refuse to allow such child a fitting maintenance suitable to the degree and abiHty of such parent and to the age and education of such child, then ... it shall be lawful for the Lord Chancellor, Lord Keeper or Commissioners (for the great seal for the time being) to make such order therein for the maintenance of such Protestant child, as he or they shall think fit.' " It may be mentioned that there were similar and even more stringent provisions in favour of the Protestant children of " Popish Parents " inserted in the Act to prevent the further growth of Popery (i Anne, c. i) passed in the following year. Although not repealed until quite recent times, the statute had become quite obsolete; yet in the early days of its existence vigorous attempts had been made to enforce it, and there had even been a disposition on the part of zealous Chancellors to give the words of the enactment the most extensive interpretation. An example of this tendency is the case of Vincent v. Fernandez, which was decided in 171 8 by Lord Chancellor Parker, afterwards created Earl of Macclesfield. Li that case a Jew had a daughter who turned Protestant. The Jew had a very considerable personal estate, and dying in May, 1717, after having by his will left several charities and given his personal estate from his daughter to his executor, the daughter, who was married and forty-four years old, petitioned the Lord Chancellor for a maintenance under this statute. It was objected that this case was not within the Act, for that, first, the child is above forty years old, and so the care of her education over ; secondly, she is man-ied and not now to be called a child, but to be provided for by her husband; thirdly, that the parent being dead could not be said to have refused to allow her fitting maintenance, &c., and so the power given by the Act is at an end. In answer to these objections, the THE JEWS AND THE ENGLISH LAW 5 Lord Chancellor said : " I strongly incline to think this case within the Act upon the following reasons ; the petitioner is a Protestant child of a Jewish parent, though the parent be dead. Suppose the child of a Jew turns Protestant, and the Jew, the parent, by will gives his estate to trustees, upon a secret trust, that if the child turn Jew the child shall have the estate, and not otherwise. As this would be clearly within the mischief, so every one must wish it to be within the meaning of the Act. It is not said the complaint shall be against the father; that would indeed take this case cut of the Act; neither is it said that the order should be made upon or against the father, so that this case fits every word made use of by the legislature. Suppose a suit or petition had been exhibited, and the Jew, the parent, had died pending the petition, and had given all away from his Protestant child because the child had turned Protestant, doubtless the complaint might be against the executor, and the order likewise against the executor ; every one will allow this to be a hai'd case, and if the words be large enough (as they are), why should they not be constmed to extend to it? "Then as to the refusal of the parent, it is not to be intended that the parent, the Jew, must make an actual refusal in words, for by that construction the statute might easily be evaded and rendered useless. If the Jewish father do by wiU dispose of all his estate from his child, this is in law a refusal; and unless some other reason be made appear, it shall be intended, because the child was a Protestant. The obligations of nature plead so strongly on behalf of a child, that when such a case happens, some great provocation must be supposed to have occasioned it ; and if no other reason be made appear, this difference in religion shall be intended the reason. " Possibly these charities given by the Jew's will may be under some secret trust for the child if she should turn Jew; wherefore let aU this be inquired into by the Master ^." ' I Peere Williams, pp. 524, 525. 6 THE JEWS AND THE ENGLISH LAW The learned reporter, however, adds a note to the effect that the Court did not appear to have made any order on the petition, and that probably the parties came to some agreement. The effect of the statute and the method of enforcing it in the earlier part of the eighteenth century may best be gathered from the report of the proceedings in the case of one Marcus Moses given in Sanders' Orders in Chancery, of which I append an abridgment: — On the 22nd of January, 1723, Moses Marcus preferred a petition setting forth that he is the eldest son of Marcus Moses of London, merchant, who is by profession of religion a Jew, and as such educated his son in the best manner that he could in the mystery of that religion, and in all other respects as a gentleman and a scholar, both at home and in travels in foreign parts, for improvement suitable to the degree and ability of the petitioner's father, who has a plentiful estate, and lives in great repute and esteem in the City of London. That the said petitioner is now of the age of twenty-two years and upwards, and being by such education become capable of judging of the true religion, and having diligently searched the Scriptures and inquired into the Christian religion as well as the Jewish, and being fully convinced of the truth of the one and of the errors of the other, hath from a full conviction and from a lively faith in God's mercies through Jesus Christ our Saviour, without any worldly views, but on the contrary well knowing thstt he should thereby become the hatred and scorn of his parents and relations who are all Jews and with whom he was before in great esteem, and be cast off from his parents notwithstanding all those discouragements, embraced the Christian religion, the only true one, and hath been baptized therein, and is become a Protestant of the Church of England as by law established. That by means of the petitioner's conversion to the Christian faith and becoming a Protestant (as he before well knew he should), he finds himseK hated and scorned by his parents and cast off by THE JEWS AND THE ENGLISH LAW 7 his said father ; and in order to compel him to exchange his religion is by his father refused to be allowed a fitting maintenance suitable to the degree and ability of his said father and to the petitioner's age and education, whereby the petitioner, who was educated as a gentleman and a scholar, and with the dependence of a plentiful fortune from his said father, is now become destitute and without any subsistence, and not being educated in the way of business otherwise than as a gentleman and a scholar, &c., is not at present capable of getting his living, &c., &c., wherefore it was prayed that directions should be given touching an allowance for the petitioner's maintenance. Whereupon an inquiry was ordered into the circumstances of Marcus Moses, the number of his family and the amount of his estate and the education of the petitioner, and the father Marcus Moses was ordered to give ^5,000 security to pay such allowance to the petitioner from time to time as the Lord Chancellor should think fit. "And it being alleged that the said petitioner hath had only five guineas from his father since his baptism, so that he hath occasion for money for his present subsistence, and that part of his clothes and wearing apparel are detained from the petitioner by his father, it is thereupon further ordered that the said Marcus Moses the petitioner's father do pay him ^^o on Tuesday next and deliver him his clothes at the same time." The inquiries appear to have been duly held, and as a result of them the father, Marcus Moses, was ordered to pay his son ^60 per annum by quai'terly payments, yet in the year 1726 the son presented another petition alleging that the maintenance had not been paid in pursuance of the Order of the Court ; the father preferred a counter- petition setting forth that even before the making of the said Order his son Marcus Moses returned to the Jewish worship and professed himself to be a Jew, and kept the Passover with Jews, and as soon as the same was over voluntarily went over to Holland and there renounced the 8 THE JEWS AND THE ENGLISH LAW Christian religion, and went publicly to the Synagogue and did penance for his having turned Christian in England, and continued in Holland a year and five months and behaved as a Jew all that time, during which time he by several letters applied to his said father to maintain and provide for him as a Jew, which he did, and paid several large sums for him more than his maintenance came to. And the said Marcus Moses being come over again to England has professed himself a Jew and behaved as such according to their ceremonies, and still continued so to do, whereby he hath forfeited the maintenance allowed him as aforesaid, and therefore praying that the said Order might be discharged. Upon these petitions all the parties were ordered to attend the Lord Chancellor (Lord King), who after hearing the evidence, including a declaration by the son in Court that he was a Christian, ordered that the sum formerly allowed for maintenance be continued until the loth of February instant, and as to any demand of the money since the loth of February the Bishop of London was to examine whether the said Marcus Moses be a Christian ^. It may be seen from the record of this case that the allowances given by the Chancellors were not excessive, and that maintenance was only given in case the child claiming it was unable to maintain itself, and would not be continued unless the conversion was genuine, the question, if there were any doubt about it, being referred to the bishop of the diocese. Li any case the statute was not instrumental in procuring numerous conversions ; and though well known to the judges, and acted upon on occasion, there was a growing tendency on the part of the Chancellors to restrict its operation, as may be seen from Lord Hardwicke's judgment in the well-known case of Villareul v. Mellish, decided in 1737^. It gradually became obsolete, and was ^ Sanders, Orders in Chancery, vol. I, pp. 457 seq., 524 seq. " 2 Swanston, pp. 533, 539 ; and 2 Atk., p. 14, vmder name of Da Costa. THE JEWS AND THE ENGLISH LAW 9 finally repealed in the year 1846 by the Act to relieve Her Majesty's Subjects from certain penalties and disabilities in regard to Religious Opinions (9 & 10 Vict. c. 59). Since the petition already referred to, which was pre- sented in 1685, there is no trace in the law reports of the statutes directed against Nonconformists, some of the most stringent of which, e.g. the Act of Uniformity (i66a, 14 Car. II. c. 4) and the Conventicle Act (1670, 22 Car. II. c. i), were only passed after the restoration of the Stuart dynasty, being enforced against the Jews. In the case of Protestant Dissenters the severity of these statutes was in a great measure mitigated by the Toleration Act (1688, I Will. & Mary, c. 18), which is expressed to be enacted " Forasmuch as some ease to scrupulous consciences in the exercise of religion may be an effectual means to urate their Majesties' Protestant subjects in interest and affection." The Jews, though in no way protected by this Act, remained undisturbed in the exercise of their religion ; and those who were hostile to them had therefore to resort to tactics which have frequently been used as instruments of persecution, and which were immediately suppressed by the courts of law, to the great credit of English justice. In the year 173a a paper was published by one Osborne con- taining an account of a murder committed the latter end of February on a Jewish woman and her child by certain Jews lately arrived from Portugal and living near Broad Street, because the child was begotten by a Christian, and showing that the like cruelty had often been committed by the Jews. In consequence of this publication, several Jews recently arrived from Portugal and living in Broad Street were attacked by multitudes in several parts of the city, barbarously treated, and threatened with death in case they were found abroad any more. Accordingly in Easter term the Court of King's Bench was moved for a rule calling upon the said Osborne to show cause why a criminal information for libel should not issue against him for publishing the paper above referred to. Upon the motion, Lord Raymond lO THE JEWS AND THE ENGLISH LAW the Lord Chief Justice, said that he believed the Court could do nothing in this matter by reason that no particular Jews could be able to show to the Court that they were pointed at more than any others, and thought that Lord Chief Justice Holt was of this opinion in the case of Orme and Nut, In that case (which is reported in i Lord Raymond, p. 486) an indictment was exhibited for a libel called "The list of adventurers in the Ladies invention, being a lottery," &c., and alleged to be to the scandal of divers good subjects of the King to the jurors unknown. The jury found the accused guilty, but upon motion judg- ment was arrested on the ground that the persons libelled were unknown, and that it could not be said that any definite person was defamed. The Court, however, made a rule against Osborne to show cause. In Trinity term cause was shown, and the Court made the rule absolute. They distinguished the case fi-om Orme's case, saying, "that in the present case it is related in the paper that the fact there told is a fact which the Jews have frequently done ; and therefore the whole community of the Jews are struck at," and further adding that "admitting an infor- mation for a libel may be improper, yet the publication of this paper is deservedly punishable in an information for a misdemeanour (apparently inciting to a breach of the peace), and that of the highest kind ; such sorts of adver- tisements necessarily tending to raise tumults and disorders among the people and inflame them with an universal spirit of barbarity against a whole body of men, as if guilty of crimes scarce practicable and totally incredible ^." This is undoubtedly a strong case, and one which, it is to be hoped, will be acted upon in case any similar attack should be made upon the Jews ; but it is only right to point out that a libel on the Jewish religion would not be so dealt with unless it was such as to tend to stir up the hatred of the Queen's subjects against persons professing that ' See 2 Bamardiston, pp. 138, 166 ; Wm. Kelynge, p. 231 ; 2 Swanston, p. 503 (note), and Sess. Cas., p. 260. THE JEWS AND THE ENGLISH LAW II religion, and so conduce to a breach of the peace. For later cases tend to show that, assuming that the decencies of controversy are observed, the fundamental doctrines of any religion, not excluding that of the Established Church, may be attacked with impunity. There are no doubt competent authorities who hold, on the strength of certain old cases, that any attack upon Christianity, being part of the law of the land, is punishable. But there will always be great difficulty in inducing a jury to convict. Indeed, in the year 1883, when Mr. Bradlaugh was tried for publishing a periodical called the Freethinker, which was advertised as being an Anti- Christian organ and as waging relentless warfare against superstition in general and against the superstition of Christianity in particular, it was laid down by the Chief Justice, Lord Coleridge, in addressing the jury, that publications discussing with gravity and decency, and in an argumentative way, questions as to Christian doctrine or statements in the Hebrew Scriptures, and even questioning their truth, are not to be deemed blasphemous so as to be fit subjects for criminal prosecution ; but that publications which in an indecent and mahcious spirit assail and asperse the truth of Christianity or of the Scriptures, in language calculated and intended to shock the feelings and outrage the belief of mankind, are properly to be regarded as blasphemous libels. In the subsequent case of the Queen v. Ramsey and Foote, arising out of the publication of the same periodical, Lord Coleridge, in dealing with this point, said : "Now accordiag to the old law, or the dicta of the judges in old times, these would undoubtedly be blasphemous libels, because they asperse the truth of Christianity. But, as I said in the former trial, and now repeat, 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 ' Christianity is part of the law of the land.' Non- conformists and Jews were then under penal laws, and 12 THE JEWS AND THE ENGLISH LAW 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 Kolls; and the great Judge whose loss we have all had to deplore^ might have had to try 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 ParHament had allowed him to deny, and which it was part of ' the law of the land ' that he might deny. Therefore to asperse the truth of Christianity cannot per se be sufficient to sustain a criminal prosecution for blasphemy. . . . Therefore to maintain that merely because the truth of Christianity is denied without more, that therefore a person may be indicted for blasphemous libel, is, I venture to think, absolutely untrue ^." * A question which will be considered later. ' Sir George Jessel, who died on March 21, 1883, ^ 15 Cox, C. C, p. 235. THE JEWS A^'D THE ENGLISH LAW 13 n. We have seen that since the year 1685^ the Jews have been allowed the free exercise of their religion in this country and have been protected by the courts of law against a gross libel upon it — such as the oft-repeated blood-accusation — when published in such a way as to stir up hatred against the Jews and thereby ultimately lead to a breach of the peace ; but it must not be supposed that the law of England ever encouraged the propagation of doctrines subversive of the Christian religion, which has always been and is still considered part of the common law of the land. In the year 1698 an Act of Parliament was passed entitled "An Act for the more effectual suppressing of Blasphemy and Profaneness ".' The preamble runs : " Whereas many persons have of late yeai-s openly avowed and published many blasphemous and impious opinions contrary to the doctrines and principles of the Christian religion, greatly tending to the dishonour of Almighty God and may prove destructive to the peace and welfare of this kingdom, wherefore for the more effectual suppressing of the said detestable crimes" it is enacted that "if any person or persons, having been educated in or at any time having made profession of the Christian religion within this realm, shall by writing, printing, teaching, or advised speaking, deny any of the Persons in the Holy Trinity to be God, or shall assert or maintain there are more gods ^ The Order in Council in answer to the Petition of Joseph Henriques and others haring been made on Js^ovember 13 of that year. ' 9 WilL LLL c. 35, more commonly cited as 9 4; 10 WilL TTT. c 32. 14 THE JEWS AND THE ENGLISH LAW than one, or shall deny the Christian religion to be true, or the Holy Scriptui-es of the Old and New Testament to be of divine authority," he or they shall, upon being convicted for the first time be rendered incapable to hold any office ecclesiastical, civil, or military, and if convicted a second time of all or any the aforesaid crimes, then he or they shall from thenceforth be disabled to sue in any court of law or equity, or to be guardian of any child, or executor or administrator of any person, or capable of any legacy or deed or gift, and shall also suffer imprisonment for the space of three years without bail or mainprize from the time of such conviction. This Act still remains in the statute-book, and may at any time be enforced. In the year 1 819 the full Court of King's Bench held that the offences aimed at were in many cases misdemeanours at common law, and that the Act enabled the judges to inflict cumulative punishments in addition to the ordinary common law punishment of fine and imprisonment ^. It was, however, recognized that there might be cases in which persons could be dealt with under this Act, though guilty of no offence under the common law. Mr. Justice Best in his judgment says : " The Legislature, in passing this Act, had not the punishment of blasphemy so much in view as the protecting the government of the coimtry, by preventing infidels from getting into places of trust. In the age of toleration in which that statute passed, neither churchmen nor sectarians wished to protect in their infidelity those who disbelieved the Holy Scriptures. On the contrary, all agreed, that as the system of morals which regulated their conduct was built on these Scriptures, none were to be trusted with ofiices who showed they were under no religious respon- sibiUty. This Act is not confined to those who libel religion, but extended to those who in the most private intercourse, by advised conversation, admit that they dis- believe the Scriptures. Both the common law and this ' See Rex t. Richard Carlile, 3 B. & Aid. 161 (1819). See also Lord Eldon's remarks, 3 Mer. p. 406 seq. (1817). THE JEWS AND THE ENGLISH LAW 15 statute are necessary ; the first to guard the morals of the people ; the second for the immediate protection of the government^." In the year 1813, in favour of Unitarians, the Act, so far as it relates to persons denying any one of the Persons in the Holy Trinity to be God, was repealed ^, and this concession was at the time regarded as a signal ^ proof of the liberality and religious toleration of the age ; but the remainder of the Act is still nominally in force. It might be made use of to prevent conversions from Christianity to Judaism, if these should ever take place upon a large scale, or any active missionary organisation were established among the Jews for this purpose. For though the ofience struck at by the statute can only be committed by persons who have been educated in or made profession of the Christian religion, still by the law of England all persons who instigate or aid and abet or ai-e accessory to a misdemeanour committed by others are themselves guilty of a misdemeanour and punishable in the same way as those guilty of the principal crime ; the law not recognizing any distinction in the punishment of crimes lower than felony. Hitherto there has been no occasion to attempt to use the statute in this way ; should, however, one arise, the bitterness of religious controversy would probably prompt such an attempt, there being no other mode of repressing proselytism by the criminal law not foredoomed to failure. The statute has a curious history for the Jews, though it may safely be afiirmed that no Jew was ever prosecuted under it. It originated in a humble address presented by the Commons to His Majesty asking for the suppression of " profaneness and immorality in all books which endeavour to undermine the fundamentals of the Christian religion and to punish the authors ^," and that His Majesty should issue a Royal Proclamation to that effect. The address was drawn up by a committee of the House of Commons ^ 3 B. & Aid. p. 166. = 53 Geo. III. c. 160, s. 2. ' Cobbett'a Pari. History, vol. V, p. 1172. 1 6 THE JEWS AND THE ENGLISH LAW appointed on February 9, and was presented to the King on the 17th. The King expressed his satisfaction at the receipt of this address, and immediately gave directions for the publication of the Proclamation asked for, and at the same time expressed a wish that more effectual provision should be made by the Legislature for suppressing the evils complained of. This Royal Proclamation or its successor, framed in a great measure upon the words of the parlia- mentary address presented to the King, is still publicly read in every county town throughout the country at the opening of every commission of assize and quarter sessions. The Bill for more effectual suppressing of blasphemy and profaneness, the substance of which has been already set forth, was also introduced in deference to the expression of the royal wishes contained in the King's answer. When the Bill reached the Lords, an amendment to omit the words "having been educated in or at any time having made profession of the Christian religion" was proposed and carried. The effect of this amendment would obviously be to render every Jew resident in the kingdom liable to the same pains and penalties provided by the enactment, including three years' imprisonment in the case of a second conviction. The House of Commons rejected the amend- ment, and appointed a committee to draw up reasons to be offered at a conference of the Lords for disagreeing with it^. Reasons were accordingly drawn up, read to the House, and agreed to ; they are of sufficient interest to be given verbatim, and are as follows : — ■ " The Commons do conceive, That the First Amendment in the First Skin, Line 14, 15, made by your Lordships, will subject the Jews who live amongst us to all the Pains and Penalties contained in the Bill; which must therefore of necessity ruin them, and drive them out of the Kingdom ; and cannot be thought was the intention of your Lordships, since here they have the means and opportunities to be informed of and rightly instructed in the principles of the ' Commons' Journals, May 18, 1698. THE JKWS AND THE ENGLISH LAW 1 7 true Christian Religion ; for which Reasons the Commons disagree with your Lordships in the said Amendment^." The Lords showed that the ruin and expulsion of the Jews was not intended, by allowing the BiU to pass without the obnoxious amendment. The conduct of Parliament in preventing an injustice being done to the Jews then but recently settled in the kingdom should not pass unnoticed, especially as it could not in any way have been influenced, as Parliament is nowadays so often, by a desire to conciliate Jewish votes, for at the time there was probably no Jew entitled to exercise the Parliamentary franchise. The alleged motive of the Commons in protecting the Jews, strange as it may seem to us, is probably the true one. The gentlemen of the House of Commons perhaps really thought that the Jews, if they only had an opportunity of being instructed in the principles of the true Christian religion as enunciated by the Church of England, would be ultimately converted to Christianity, a result which would not ensue if they were driven by unjust laws to lands belonging to Christendom no doubt, but shi-ouded by the darkness of false Papal or Lutheran doctrine. At any rate, we can see that there was in those days, as in these, an intense desire to bring the Jews into the Christian fold. As no exception in their case was made, and the matter had been discussed, it was evidently intended that Jewish proselytes to Chi-istianity, if they relapsed into Judaism, should be dealt with under the Act. Though such cases are constantly arising, there is no trace of any prosecution under the Act having ever taken place. It may be that the knowledge of the revela- tion of the methods employed by the conversionists which in such a case would inevitably be made has effectually deterred those imbued with the missionary spirit from undertaking such a prosecution ; or it may be that it has never been thought worth while to exact the penalty which in the case of a first conviction is merely incapacity ' Commons' Journals, May 21, 1698. C 1 8 THE JEWS AND THE ENGLISH LAW to hold any office, ecclesiastical, civil, or military, a punish- ment which would be of little effect in almost every case of double apostasy, for the persons who publicly indulge in numerous changes of their religious profession have rarely any reasonable expectation of attaining any of the offices from holding which the Act debars them. In any cases the Act, though it still appears in the statute-book, has been allowed to become a dead letter. The freedom accorded to the practice of the Jewish religion in this country has now been dealt with in outline. It has been shown how the Acts compelling outward con- formity with the religion of the Established Church were not enforced against the JewSj and how, when a gross and malignant libel upon the rites of the Jewish religion likely and intended to lead to violence against its votaries was published^ the courts of law were ready to inflict punish- ment upon its author. On the other hand, two Acts were placed upon the statute-book, one compelling Jews whose children might become converted to Protestantism to provide them with suitable maintenance ; the other enabling a criminal prosecution to be brought against Jews who should obtain proselytes from Christianity. Of these statutes the first was repealed in 1846 ; the second has never been acted upon, though it still remains a part of the law of England. I will now turn to the legal position of endowments created for the purpose of furthering the Jewish religion. Such endowments are constituted by vesting the property which is the subject of them in a trustee or trustees in trust for or to the use of the institution intended to be benefited. But any trust which has for its object the propagation of religious views not tolerated by the law in force at the time will be held void by a court of justice as being contrary to the policy of the law. If a charitable purpose can be discovered in the document creating the trust, the court will apply the property to some other charitable purpose ; and if no charitable intention appears will vest it in the person who would have been entitled if THE JEWS AND THE ENGLISH LAW 19 the trust had never been created. Thus before the year 1688, when the Toleration Act was passed, gifts in favour of the places of worship, ministers, and schools of Protestant Dissenters were invalid ^. As to the effect of the Toleration Act, Lord Mansfield is reported to have said that Noncon- formity is rendered by it " not only innocent but lawful," and that the protecting clauses of the statute " have put it not merely under the connivance but under the protection of the law — have established it. For nothing can be plainer than that the law protects nothing in that very respect in which it is at the same time in the eye of the law a crime. Dissenters by the Act of Tolera- tion therefore are restored to a legal consideration and capacity V It has already been shown that the provisions of the Toleration Act were confined to Protestant Nonconformists, and that the Jews received no benefit under it, and it was not until 1 846 that Jewish religious endowments were made valid. Several cases came before the courts ; for instance, in the year 1 744 the case of Ba Costa v. Be Faz was tried. It is reported in. Ambler at p. 238, and in i Dickens at p. 258 ; but as Lord Eldon, in giving his decision in Moggridge v. Thackwell, complained that these reports are not very accurate ^, the subjoined account is taken from a note extracted from Mr. Coxe's MSS. in Lincoln's Inn Library by Mr. Swanston*. Elias de Paz, by his will dated November 4, 1839, directed his executors to invest a sum of .^1200 in some government or other security, and directed that the revenue arising therefrom should be applied for ever in the maintenance of a Yesiba or assembly for daily reading the Jewish law, and for ad- vancing and propagating their holy religion, and directed that his executors during their respective lives should have ^ Att.-Gen. t. Boater, i Vern. 248, decided in Trinity Term, 1684, revised in 1689 after the Kevolution, 2 Vern. 105. ' 3 Mer. p. 376 (note). ' See 7 Ves. p. 76. * 2 Swanston, p. 487 seq. C 2 20 THE JEWS AND THE ENGLISH LAW the management of the assembly. The bill was to have this ^£"1200 laid out according to the will. Lord Hard- wicke, the Chancellor, in delivering his judgment, said : " This case requires two considerations : fii'st, whether the legacy in question is good and such as this court can or ought to establish ? and secondly, if not, whether it is void absolutely, or only to the particular intent, so as to leave it a general legacy, and such as the crown may dispose of? As to the first, I am of opinion that it is not a good legacy, and ought not to be established, no such instance being found. Nobody is more against laying penalties or hardships upon persons for the exercise of their particular religion than I am ; but there is a great difference between doing this and establishing them by acts of the court. The cases of dissenting ministers before the Toleration Act were different ; particularly Baxter's case, was not of an illegal bequest, but was a bequest for poor ejected ministers ; and even as to this case of the Jewish religion, it would be for a different consideration were it for the support of poor persons of that religion. Orders are made by mo and the Master of the Rolls every year upon petitions made for their support as poor people. But this is a bequest for the propagation of the Jewish religion ; and though it is said that this is a part of our religion" (it having been argued that this bequest was only for propagating and reading that law which is allowed in the Church, and which is the foundation of the Christian religion), "yet the intent of this bequest must be taken to be in contra- diction of the Christian religion, which is a part of the law of the land, which is so laid down by Lord Halo and Lord Raymond ; and it undoubtedly is so ; for the constitution and policy of this nation is founded thereon. As to the Act of Toleration, no new right is given by that, but only an exemption from the penal laws. The Toleration Act recites the penal laws, and then not only exempts from those penal laws, but puts the religion of the Dissenters under certain regulations and tests. This renders those THE JEWS AND THE ENGLISH LAW 21 religions legal, which is not the case of the Jewish religion, that is not taken notice of by any law, but is barely connived at by the Legislature." The Lord Chancellor accordingly came to the conclusion that the legacy was not good in law, and ought not to be decreed or established by the court. The second question, namely what ought to be done with the sum of a^iaoo, the amount of the legacy, was considered more doubtful, and the further consideration of it reserved. Upon the further consideration of the matter, the court decreed that the money ought not to accrue to the residue of the personal estate of the testator, but ought to be applied to some other charitable uses, and that the appointment thereof belonged to the Crown ; and ulti- mately the King by his sign manual was graciously pleased, upon the humble petition of the Governor of the Foundling Hospital, to give .^looo, part of the sum of .^1200, towards supporting a preacher and to instruct the children under his care in the Christian religion and for incidental expenses, &c. It is not known what became of the remaining ^3,00, but if it was not absorbed in costs, it was probably devoted to a similar purpose. And so the money went to a charitable purpose, upon the principle that where the court cannot carry out the intention of the testator, as being against the policy of the law, it may substitute a different charitable object for his bounty. As regards the particular substitu- tion in this instance, I cannot refrain from quoting the words of Lord Eldon : " It would have caused some surprise to the testator if he had known how his devise would have been construed \" The same judge says in another case : " It is very difficult, I think, seeing that intention to build a Jewish Synagogue, to discover an intention to build ^ > In Att.-Gen. v. Mayor of Bristol, 2 J. & W. 308 (i8ao). ' But the money was not employed in building, but in supporting a preacher and instructing children in the Foundling Hospital in the Christian religion. This was probably unknown to the Chancellor, who could not consult the second and more correct edition of Ambler, which was not published till 1828. 22 THE JEWS AND THE ENGLISH LAW a Foundling Hospital, rather than that the money- should not be applied : but the court has said so always ^." Da Costa v. De Paz was not an isolated case; the principle laid down by Lord Hardwicke, that bequests for advancing the Jewish religion were invalid, though bequests for the support of poor persons of that religion were good, was regularly acted upon when similar disposi- tions came before the court. An example is the case of Isaac V. Gompertz, which came before the Master of the Rolls in 1783, but was not finally decided tiU 1786. Benjamin Isaac by his will left several annuities : first, an annuity of £20 for teaching and instructing ten poor Jews' children at Bromsall; ,^40^ for the support and maintenance of the Jews' Synagogue in Magpie Alley; and ^30 for teaching and instructing ten poor Jews' children in London; £0,0 to be given away every New Year's Day among poor Jews ; and ^^"'30 to be laid out and expended every year in the purchase of coals to be given away and distributed among poor Jews and their families, &c. All the legacies were allowed except that given to the synagogue ; as to which the order of the court was : " And as to the annuity of ^40 given for the support and maintenance of the Jews' said synagogue in Magpie AUey, it was declared that the same ought not to fall and accrue to the personal estate of the said testator, but ought to be applied to some other charitable use, and that the appointing and directing that charitable use was in the Crown ; and this court doth recommend it to His Majesty's Attorney-General to apply to the King for a sign manual to appoint and direct to what charitable use or uses the said annuity of £40 and the arrears shall be applied^." The legacy was ultimately divided into ^ Moggridge v. ThackweU, 2 Ves. p. 8i (1802). ^ Amblei-'s note gives £10 ; but this must be a misprint. See the end of the note. ' See Ambler, p. 228 (note), and 7 Ves. p. 61. THE JEWS AND THE ENGLISH LAW 23 moieties ; one moiety being given to the Magdalen Hospital, the other to the London Infirmary ^. It would not be right while dealing with this subject to omit the case of Straus v. Goldsmid, heard by Sir L. ShadweU, Vice-Chancellor of England in 1837. There the testator bequeathed one-third of his residuary personal estate in the following words : " The remaining third of the above residue to be given to the Rulers and Wardens of the Great Synagogue in this City of London in the manner hereinafter mentioned : that is to say, the interest or dividends arising from this third to be, every year on the Eve of the Passover, distributed at least among ten worthy men who have wives and children, among whom there ought to be some learned men, to purchase meat and wine fit for the service of the two nights of Passover." The reporter states that the Vice-Chancellor held that the bequest, being intended to enable persons professing the Jewish religion to observe its rites, was good ^. I cannot help thinking that this decision is misreported ; for other- wise it is contrary to the accepted authorities already quoted. It might have been based on an intention to support poor persons of the Jewish faith by providing them with suitable viands on stated occasions, but could not, conformably with the generally received theory of the law, have been founded on intention to maintain Jewish rites and observances, for the Jewish religion had not yet received the benefit of the Toleration Acts. This benefit had already been conferred on Roman Catholics by the Roman Catholic Charities Act of 1832^, but it was not extended to Jews till 1846. On August 18 of that year the Act " to relieve Her Majesty's subjects from certain penalties and disabilities in regard to religious opinions * " became law. It expressly repealed many Acts imposing religious disabilities, and in section 2 provides: "That ' See note to Att.-Gen. v. Burgman, i Dickens, p. 169. ' 8 Simon, pp. 614-5. ' 2 & 3 Will. IV, c. 15. * 9 & 10 Vict. c. 59. 24 THE JEWS AND THE ENGLISH LAW from and after the commencement of this Act Her Majesty's subjects professing the Jewish Rehgion in respect to their Schools, Places for Religious Worship, Education and Charitable Purposes and the Property held therewith, shall be subject to the same Laws as Her Majesty's Protestant Subjects dissenting from the Church of England are subject to, and not further or otherwise." The legal status of the religious endowments of Protestant Dissenters is well summarized by Lord Eldon in the following words : "■ I take it that, if land or money were given (in such a way as would be legal notwithstanding the statutes con- cerning dispositions to charitable uses) for the purpose of building a church or a house, or otherwise for maintaining or propagating the worship of God, and if there were nothing more precise in the case, this court would execute such a trust, by making it a provision for maintaining and propa- gating the Established Religion of the country. It is also clearly settled that, if a fund, real or personal, be given in Buch a way that the purpose be clearly expressed to be that of maintaining a society of Protestant Dissenters — promoting no doctrines contrary to law, although such as may be at variance with the doctrines of the Established Religion — it is then the duty of the court to carry such a trust as that into execution and to administer it according to the intent of the founders '." At the present time therefore Jews are practically in the same position as Protestant Dissenters in respect of their religious endowments, and can as a general rule with reason anticipate that any endowments they found will be carried into effect. But it must be remembered that the operation of the Act is expressly confined to schools, places for religious worship, education, and charitable purposes, and that any endowment which cannot be brought under one of these four heads will still be subject to the old law, and might therefore be declared void on the principle of the old cases. However, the courts of law, which have ' AU.-Gen. v. Pearson (1817), 3 Mer. 353, at p. 409. THE JEWS AND THE ENGLISH LAW 25 always given a wide interpretation to the Acts of Toleration and even made them retrospective in their operation^, would in all probability be favourably inclined to include a Jewish endowment under one of the four heads men- tioned in the statute, if that were possible. If it were impossible, it might be argued — whether successfully or not cannot be predicted, as no such case has yet arisen — that the law, having now recognized the Jewish religion and in some ways protected it, has made it legal not merely for some but for all purposes, and therefore that the reasoning on which the old cases are based no longer holds good, and the principle evolved from them is no longer law. It should also be stated that Jewish are in no better position than other endowments. They are subject to be defeated by reason of non-compliance with the statutes relating to mortmain, or on account of infringing the rules against perpetuity (unless they can be brought within the category of trusts recognized by the law as charitable) or as being contrary to public policy. There are no re- ported cases relating to the failure of endowments under the first two heads of special interest to Jews, but it will not be out of place to mention here two cases arising under the thii-d. The first is Hahershon v. Vardon, which came before Vice-Chancellor Sir P. L. Knight-Bruce in 1 851. Nadir Baxter had by his will, dated in 1842, directed as follows : " That other .^1000, out of such part of my personal estate as may by law be devoted to charitable purposes, be paid towards the contributions that I do confidently believe and earnestly pray will speedily be begun to be raised under the sanction of our hitherto so highly favoured church and nation, in evidence of Christian faith towards the political restoration of the Jews to ' See Bradshaw v. Tasker, 221 (1834, before Lord Brougham). The correctness of the decision in this case was doubted by Sir Ed. Sugden (L.C.) in Aa.-Gen. v. Drummond, i Dr. & War. p. 380 (1842), but was followed by Sir John Romilly (M.R.) in re Michel's Trusts, 28 Beav. 39 (i860). 26 THE JEWS AND THE ENGLISH LAW Jerusalem, and to their own land." The Vice-Chancellor held that the gift of .^looo was void. "If," said he, "it could be understood to mean anything, it was to create a revolution in a friendly country. Jews might at present reside in Jerusalem ; and, if the acquisition of political power by them was intended, the promotion of such an object would not be consistent with our amicable relations with the Sublime Porte ^." This case was decided five years after the legal recognition of the Jewish religion in 1846, and is therefore still binding on the courts of first instance. Trusts in favour of the present Zionist propa- ganda, unless very carefully framed, might on the same principle be declared void. The other case is in the matter of Michel's Trust. It occurred in i860, and was a special case seeking the opinion of the court under the following circumstances. The testator, Abraham Michel, a Jew, by his will made the following bequest, which was to take effect on the death of his widow. "I give and bequeath unto my executors so much money as will produce in government securities the sum of .^"'lo sterling per annum, upon this special trust and confidence (that is to say), upon trust to invest the same in government securities, as they shall think best, and to pay the interest thereof or dividends, yearly or half-yearly, so as they my executors shall think proper, unto the parnosim or wardens of the congregation of Ostrovesy, near Opateir^ in Little Poland, for the time being; but my will and mind is, that the said parnosim or wardens do pay the said sum of .^10 to three qualified persons, chosen by them from and out of my family, to learn, in their Beth Hammadrass or college, two hours daily for ever, and on every anniversary of my death, to say the prayer called in Hebrew Candish ^ ; and in case there should be no one of my family qualified thereto, then or in such case my wiU and mind is, that the said parnosim or wardens pay the same to three persons qualified." ' 4 De G. & Sm. 467. ' Thus spelt in the report ; properly Kaddish. THE JEWS AND THE ENGLISH LAW 27 The testator died in 1831, and his widow in 1822. The executors appropriated the sum of .^300, ^3 per cent, consolidated annuities, to answer the above trust, and for some years after such investment had taken place the dividends were remitted to the pamosim or wardens of the congregation at Ostrovesy, but, many years since, the remittance was discontinued, in consequence of its being considered that the bequest was invalid. The stock not having been dealt with, the surviving executor presented a petition seeking the opinion of the court on the following points : first, whether the legacy in question was a valid charitable legacy, and secondly, if valid, how the stock and cash representing the legacy, and in particular how the sums representing arrears of dividend and the accumulations thereof, ought to be paid and applied. It was stated that the term to " learn in the Beth Ham- madrass or college for two hours daily" signified to study either the Bible or the Talmud, and that the "Candish" was a short Hebrew prayer in the praise of God, and expressive of resignation to his will. That both were acts of piety, and that the prayer was generally said by the sons of the deceased, during the year of mourning and on the anniversary of the death, but if there were none, it was either said by the relatives or by some other person. The Master of the Rolls, Sir John Romilly, had no doubt of the [validity of the bequest, and held, on the analogy of the cases decided with regard to Roman Catholic charities, that the Act of Parliament (9 & 10 Vict. c. 59) was retrospective in its operation. Referring to the argu- ment advanced on behalf of the residuary legatees that the gift was void as a superstitious use, as an anniversary or obit, and similar to praying for the testator's soul, the learned judge said, "I see nothing in the bequest which is superstitious. It was attempted to show that it was so, by importing into it the assumption that the prayer ofiered up on the anniversary of the death of the testator must be 28 THE JEWS AND THE ENGLISH LAW intended to be for the benefit of the soul of the testator. . . . There are many cases of superstitious uses unconnected with prayers for the soul; but in regard to West v. ShutUeworth'^ and Heath and Chapman"' I have alwaj^s felt this difficulty: — so far as relates to their places for religious worship and the property held therewith, Roman Catholics and Jews are now placed in the same position as Protestant Dissenters ; and if it be part of the forms of their religion that prayers should be said for the benefit of the souls of deceased persons, it would be difficult to say that, as a religious ceremony practised by a dissenting class of religionists, it could be deemed superstitious in the legal sense in which these words were used prior to the passing of the statutes in question, which practically have authorized them. In the time of Edward the Sixth and Elizabeth the ceremony of the mass was considered superstitious, and I do not know that the law made any distinction between masses generally and masses for souls, or any distinction between those said for the general purpose and object of their religion in the worship of God and those which are for more limited objects, which were formerly considered superstitious, and which the court now, considering them in a Protestant point of view, still regards as superstitious. I express no opinion on this point, however, as no such case arises here. " Here nothing is said as to praying for the soul of any one. Three persons are to learn in their Beth Hammadrass or college, and to say a prayer called Candish, and from the information given to the court, it appears that this means that they are to study either the Bible or the Talmud, and with respect to the Candish, that it is nothing but a short Hebrew prayer in the praise of Almighty God. This has no reference to praying for souls of the founders, and I do not know that there would be anything super- stitious in a bequest by members of the Church of England to wardens to select a scholar to learn the Greek Testament » 2 Myl. & K. 684. ' 2 Diew. 417. THE JEWS AND THE ENGLISH LAW 29 two hours daily, and on a certain day to repeat the Lord's Prayer, although the day selected may be the anniversary or birthday of the founder. There is nothing here to show that this was to be done under the notion that the soul of the testator would derive any benefit from it. I think that this is a valid gift for the benefit of a Jewish charity, and that the executor must pay over the dividends to the parnosim or wardens, who are to select the three qualified persons as directed by the will ^." In re Michel's Trusts the bequest was upheld, but the case shows that a religious trust may still be set aside as being a superstitious use, and therefore contrary to public policy. It would be extremely difficult to define precisely what is a superstitious use; but the term un- doubtedly includes, and is perhaps confined to, any trust which has for its object the performance of any acts for the supposed benefit of the soul of any person whatsoever. This doctrine that all such trusts are void has never come before the House of Lords, but has been repeatedly acted upon by the other courts, and must be considered part of the law of England. The doctrine is somewhat anomalous, inasmuch as prayers for the dead ax-e not prohibited by the Church of England, as was judicially held in the Court of Arches by Sir H. Jenner so long ago as 1838^. Before the Reformation trusts of this nature were considered valid and enforced by the courts, but in the reign of Henry VUI and Edward VI two statutes ^ were passed annulling them in certain cases, and though such trusts do not as a rule come within the letter of these statutes, for there is no statute making superstitious uses void generally, they are nevertheless held to be void by the general policy of the law. We have already seen that Lord Romilly in re Michel's Trusts was inclined to doubt the validity of this doctrine * In re 'Michd's Trusts, 28 Beav. pp. 39-43. ' Breecks v. Woolfrey, i Curt. Eccl. Eep. 880 ; and see Egerton v. AU of Odd Rode, L. K. [1894] P. 15, and Pearson v. Stead, id. [1903] P. 66. ' 23 Hen. VIIL c. 10, repealed by the Mortmain and Charitable Uses Act, 1888, and i Edw. VI. c. 14. 30 THE JEWS AND THE ENGLISH LAW after the legalization of the Roman Catholic religion, but in the following year he was constrained to acquiesce in it. Speaking of his remarks in re Michel's Trusts, he said, "I expressed my difficulty in the case referred to, as to whether gifts for religious ceremonies practised by a dis- senting class of religionists might not be peiTuitted, if not opposed to public morality ; but I think the decided cases too strong, and that the House of Lords alone can alter the settled law. It is clear that I must act on West v. Shuttleworth, which I cannot overrule ^." And in a recent case Vice-Chancellor Hall held as a matter of course that a bequest of j^"!©, to be expended in saying masses for the testator's soul, was void ^. I have dealt with this subject at some length because it is a practice in certain synagogues on the second day of the festivals, and on the day of Atonement in some congregations which have adopted a reformed ritual (though happily it has not been recognized by the West London congregation of British Jews, the principal body of re- formers in this country), to hold prayers for the benefit of the souls of deceased members, who are mentioned by name — a certain sum as a rule being paid on account of each name which is read out. It seems to me upon the decided cases that any legacy left for this purpose is invalid, nor would the case be difierent, provided that the testator was a domiciled Englishman^ if the money so bequeathed is to be paid for a religious service of this kind to be performed in a country where it is not considered superstitious ^. Gifts given for this purpose are simply void, but there is no power in the court or in the Crown to apply them ' In re SlunddVs Trusts (1861), 30 Beav. p. 360. ' In re Fleetwood, Sidgreaves v. Burder (i88o), 15 Ch. D. 594, at p. 609. ' See in re EUiott (1891), W. N. p. 9, where Mr. Justice North held that a bequest of £2000 to the Priests of the Society of Jesus at Richmond, Victoria, to he spent in masses for the souls of the testator (a domiciled Englishman) and his wife, was bad, although by the law of Victoria the gift was good. THE JEWS AKD THE ENGLISH LAW 31 to some other religious or charitable purpose different from that indicated by the donor, as was done in the cases, already cited, relating to endowments for the purpose of promoting the Jewish religion before the benefit of the Toleration Acts had been extended to the Jews. The reason for this is that charity is not the object of such gifts. The intention is not to benefit the place of worship, or priest officiating in it, but to secure some supposed benefit to the donor's soul. This principle is well laid down in the judgment of the Privy Council delivered by Sir Monta.gue Smith in the case of Zap Ohea Xeo v. Ong Cheng Keo, in which a devise of a house for performing religious ceremonies to the testatrix and her late husband was declared void. " The remaining devise to be considered is the dedication by the testatrix of the Soro Chong House for the performance of religious ceremonies to her late husband and to herself." It appears to be the usage in China to erect a monumental tablet to the de-ad in a house of this kind, and for the family at certain periods to place, with certain ceremonies, food before the tablet, the savour of which is supposed to gratify the spiiits of their deceased relatives. This usage, with the accompanj-iog ceremonies, is minutely described by Sir P. Benson Maxwell, in his judgment in the case oiGhoah Chron S^ish v. SpoUiswood^: — " Although it certainly appears that the performance of these ceremonies is considered by the Chinese to be a pious duty, it is one which does not seem to fall within any definition of a charitable duty or use. The observance of it can lead to no public advantage, and can benefit or solace only the family itself. The dedication of this Soro Chong House bears a dose analogy to gifts to priests for masses to the deai Such a gift by a Roman Catholic widow of property for masses for the repose of her deceased husband's soul and her own was held, in West v. Shnttle- worth^, not to be a chiiritable use, and, although not ' Wood's OrieKtid Cases. ' 2 MyL &. E.. 684. 32 THE JEWS AND THE ENGLISH LAW coming within the statute relating to superstitious uses, to be voidi." It would seem to follow that before the year 1846 Judaism was not a religion recognized by law, and that a Jewish synagogue was an illegal establishment. There is, however, a reported case which seems to point in the opposite direction. On May 6, 181 8, the case of Israel and others against Simmons was heard by Mr. Justice Abbott, at that time a puisne judge in the Court of King's Bench. The plaintiffs were the surviving lessees of certain premises in Denmark Court, Strand, which were used as a synagogue. The defendant had become a member of the synagogue twenty years before, and had paid his seat-rent up to the year 1810 ; he then seceded and attended another synagogue, but he retained the key, by which possession of the seat had been given to him, till the year 1813. The action was brought to recover the amount of the rent for that space of time, and also for certain offerings and sums alleged to be due from the defendant in respect of certain rites and ceremonies peculiar to the Jewish religion. The latter part of the claim was at the suggestion of the judge abandoned by the plaintiffs. It was contended by counsel on behalf of the defendants that the action was not main- tainable in point of law, because the law of England did not tolerate Jewish synagogues. Great pains had been taken to investigate the subject, and it did not appear that there was any law which legalized the establishment of Jewish sjTiagogues. The principal synagogue in this kingdom had been established under a royal grant, in the reign of Charles the Second ; but it was not open to all people of that persuasion, without any grant or licence, to erect places of worship, according to their own pleasure, and to employ preachers at their own discretion. The Toleration Act did not embrace Jewish synagogues of any description ; and since the doctrines preached there were in direct hostility to the Christian religion, such establish- 1 L. E. 6 p. C. p. 396 (1875). THE JEWS AND THE ENGLISH LAW 33 ments wei"e to be considered as illegal. In answer to a question from the court, it was admitted that there was no written law which prohibited such establishments. In reference to this argument Mr. Justice Abbott said that since no authority could be produced to the contrary, he should certainly hold that such establishments were lawful, and consequently that the plaintiffs were entitled to recover^. The objection was accordingly overruled ; how- evei", a highly technical point referring to a misjoinder of plaintiffs was raised, and this being decided in the defendant's favour, judgment was entered for him. The case being decided upon a different point, Mr. Justice Abbott's ruling is of no great authority upon the matter now under discussion, and though it correctly represents the law as it exists at present, it is at least doubtful whether it could have been upheld at the time when it was given. The point was raised in the midst of a trial at Nisi Prius, and apparently decided at once without due consideration and without reference to the existing authorities, and under the impression that no authority to the contrary could be produced. The cases of Da Costa V. De Paz and Isaac v. Oomperts were, however, valid authorities to the contrary, and there can be little doubt that, if these had been cited to the learned judge, his ruling on this point would have been greatly modified. He might of coui-se have attempted to distinguish the case before him from the earlier ones on the ground that it was a matter of contract and not the case of a trust ; but such a distinction it would be difficult to uphold. The case is, however, of interest as showing the tolerant spirit which animated the court at the time; it being assumed that the Jewish religion was legal, unless an authority to the contrary was produced. * a Starkie, pp. 356-9. 34 THE JEWS AND THE ENGLISH LAW III. The history of the way in which the courts treat endow- ments for Jewish religious and communal purposes has been sketched in outline, and it has been shown how, though at one time trusts for the maintenance or propagation of the Jewish religion or religious doctrines, as distinguished from trusts for the benefit of poor adherents of that religion, would not be enforced, such trusts, with very unimportant excep- tions, have since the year 1846 been carried out by the coui-ts : it remains to deal with the view the courts have taken of claims by Jews to participate in general endowments and charities not specifically confined to any religious creed or denomination. The right of Jews to establish charities in favour of their co-religionists exclusively has been always asserted, and has been firmly established by the judicial decisions previously enumerated ; on the other hand, the right of non-Jews to create endowments from which Jews or the members of any other especially designated class or religion are prohibited from deriving any advantage has never been doubted. It may be laid down that Jews are entitled to the benefit of all institutions and foundations which are not by the instrument creating them restricted either expressly or by necessary implication to members of a particular denomination. If duly authorized regulations are laid down for the distribution of a charity, with which it is impossible for a Jew to comply, it is plain that he cannot participate in the benefits of it, but he wiU not be excluded by the mere fact that the endowment he wishes to THE JEWS AND THE ENGLISH LAW 35 take advantage of was founded at a time anterior to the readmission of Jews into this country. The principles upon which the courts will act were laid down in the year 181 8 by Lord Eldon, sitting as Lord Chancellor, in the matter of the Masters, Governors, and Trustees of the Bedford Charity. Of this case there is an excellent report by Mr. Swanston', which contains a whole mine of learning upon the subject in hand, but as it covers seventy pages, it is impossible to set it out in full here. It must therefore suffice to give an abstract of the facts, together with the most important portions of the judgment. The Bedford Charity had been originally established in the reign of King Edward the Sixth by Sir WilHam Harper, Knight, and alderman of the city of London, and Dame Alice, his wife; and two Acts of Parliament had been passed, the last in 1793, for its regulation. The charity consisted of (i) a free school in the town of Bedford for the education, institution, and instruction of children and youth in grammar and good manners, and the Wardens and Fellows of New College, Oxford, were constituted Visitors of the grammar school : (3) a provision of ^800 per annum for the marriage portions of forty poor maids of the town of Bedford, of good fame and reputation, in equal shares ; all poor maidens resident in the town of Bedford, and being of the age of sixteen years or upwards, and under the age of fifty years, whose fathers had been occupiers of a house in the town for the space of ten years or had been born in the town and had occupied a house therein for three years, were to be at liberty to send to the Mayor an account in writing of their Christian and surnames, their ages, the places of their birth, and the names of their parents; and, if not of bad fame and reputation, were to be permitted to draw lots for sums of J^ao each ; and each of those who drew the beneficial lots was to be entitled to receive on the day of her marriage £10 for her portion, provided that she ' a Swanston, pp. 470-539. D 3 36 THE JEWS AND THE ENGLISH LAW should marry within two calendar months from the time of claiming such beneficial lot, and that she should not marry a vagrant or other person of bad fame or reputation: (3) a house or hospital for the habitation of poor boys and girls, born and resident within the town of Bedford, who were proper objects of charity, where they were to be suitably maintained until they were of a proper age to be put out to trade, agriculture, or other business : (4) a provision of a yearly sum of ^700, to be applied, by two half-yearly sums of ^^^350, in placing out twenty poor children appren- tices every half-year, viz. fifteen boys, not being under the age of thirteen nor above the age of fifteen years, and five girls, not being under the age of twelve nor above the age of fifteen years, whose respective fathers had been occupiers of a house in the town for the space of ten years or had been born in the town and occupied a house therein for the space of three years. All such poor boys and girls, whose names had been sent in at the proper time, were to be permitted to draw lots; and the sum of .^''ao was to be paid as the apprentice fee with each of the fifteen boys and .^■"lo as the apprentice fee with each of the five girls who should draw the beneficial lots upon their being respectively placed out apprentices to masters and mistresses of good character and respectability. The boys were to be bound for the space of seven years, and the girls for the space of five years ; and every boy and girl so put out to apprentice, who should actually serve the full term of apprenticeship, and in all respects comply with the tenor of the indentures of apprenticeship, should, on producing to the trustees of the charity a certificate signed by their respective masters or mistresses and by the minister and churchwardens of the parish where they should have respectively served their apprenticeship, testifying such actual service and compliance with the tenor of their indentures as well as their good morals and behaviour respectively, be entitled to receive such sum of money, not exceeding i^ao nor less than .5^10 , each, as the trustees should judge proper and expedient. THE JEWS AND THE ENGLISH LAW 37 (5) The surplusage of the funds, remaining after the before-mentioned objects had been carried out, was to be distributed in ahns to the poor of the town for the time being. In the year 1816 Sheba Lyon, whose father, Joseph Lyon, had been an occupier of a house in the town of Bedford for more than ten years, being then between twelve and fifteen years of age and duly qualified by the Act of Parliament, and her name having been given in in the usual form one calendar month before the time of drawing lots as directed by the Act, presented herself to the masters, governors, and trustees of the Bedford Charity as a candidate to draw a lot for the apprentice fee to be paid to girls. Permission to draw a lot was refused upon the ground that her father, Joseph Lyon, was of the Jewish persuasion, and afterwards any persons of the Jewish persuasion, whatever in other respects might be their qualifications under the terms of the Act of Parliament, or the children of such pei-sons, to partake of any benefit under the Bedford Charity. In answer to an apphcation by Mr. Isaac Lyon Goldsmid, who interceded on behalf of Sheba Lyon, the Mayor of Bedford wrote to him that the trustees, finding the number of Jews increasing in Bedford, entertained considerable doubts whether such persons were objects of the charity, and that they had been advised to refuse and had refused to admit Jews to participate in the benefit of the charity, leaving it to the persons so refused, if they should think proper, to bring the matter before the Lord Chancellor. Accordingly a petition was presented praying that it might be declared that the poor inhabitants of the town of Bedford in other respects duly qualified were entitled to the benefit of the Bedford Charity for themselves and their children, whether they were Jews or Christians, and that Sheba Lyon should be permitted to draw lots for the apprentice fee to be paid to girls. The evidence showed that Michael Joseph had twice voted in the annual election of trustees of the charity, that 38 THE JEWS AND THE ENGLISH LAW he settled at Bedford and became a housekeeper there about thirty-one years before, and at that time there was no other person professing the Jewish religion there nor had been in the memory of man; that he had had two sons and seven daughters, all of whom were born in Bedford, and that both his sons were admitted into the free school of the charity and were educated there in the usual manner, his eldest son being in the lower or writing school, and his youngest both in the grammar and writing school ; and both of them drew for and received apprentice fees from the charity, and the eldest, on being out of his apprenticeship, received the benefaction of ^€"10 ; that his four eldest daughters drew for apprentice fees given to girls ; the three eldest of them did not draw beneficial lots, but the youngest having drawn a beneficial lot, the appren- tice fee was paid with her ; that all his daughters had since claimed and received the marriage portions given to poor maidens ; that no Jew had ever been proposed or elected a trustee of the charity, but that such trustees had always been elected from among the most opulent and considerable inhabitants of the town ; and no Jew, during the time of Michael Joseph's first residence there, had been by his circumstances and mode of living entitled to the distinction of being elected a trustee ; that no Jew boy or girl had ever been admitted into the hospital, nor any Jew into the alms- houses belonging to the charity, and that no Jew girl ever received the donation given to maidservants, and no Jew ever received any part of the moneys distributed annually under the provisions of the Act among the poor inhabitants of Bedford ; but that no one professing the Jewish religion since Michael Joseph's residence in the town had ever applied for or been a fitting object to partake in any of those benefactions (inasmuch as no Jew had been incapacitated by age or infirmity, so as to fall within the description of persons for whose benefit the alms- houses were erected) or to receive the surplus of the charity funds annually distributed ; and no Jew girl, THE JEWS AND THE ENGLISH LAW 39 the daughter of an inhabitant of Bedford, had ever gone out to service ; that there were then three Jew house- keepers in the town and no more, and that since Michael Joseph first came to reside in the town there had been four other Jew families resident as housekeepers there, all of whom had either left the town or ceased to be housekeepers there. The other two Jewish housekeepers resident in the town, Godfrey Levi and Joseph Lyon, also swore affidavits stating that their daughters had been admitted into the preparatory free schooL Evidence was filed on the part of the trustees setting out the regulations laid down for the government of the schools, from which it appeared that there were three schools attached to the charity, namely, the grammar school, the writing school, and the preparatory school; and affidavits were sworn by the gentlemen who were or had been masters of the schools. The education in the grammar school was similar to that in other public schools, and consisted of instruction in the Latin and Greek languages. Every boy was also instructed in the principles of the Christian religion, and required to read the Bible and New Testament. Nathan Joseph, the son of Michael Joseph, had been one of the scholars in the grammar school ; he had never made further progress than learning the Latin grammar, and remained altogether not more than twelve months in the school when his father took him away; Michael Joseph had requested Dr. Brereton, the master, to dispense with his son's attendance in school at the time of morning and evening prayer, on account of its being inconsistent with his faith as a Jew, and for the same reason to dispense with his attendance on the Saturday, being the Jewish Sabbath, and also on the Jewish holidays ; Nathan Joseph never attended the gram- mar school on a Saturday nor on certain other days which were Jewish holidays ; he was very irregular in his attendance in school, of which Dr. Brereton frequently complained to his father, who uniformly described his 40 THE JEWS AND THE ENGLISH LAW absence to be of necessity, on account of his being of the Jewish persuasion. No other boy of the Jewish persuasion had at any time applied for admission or been admitted into the grammar school. All the boys in the writing school, without exception, were educated in the principles of Christianity, and taught to read and actually read the Bible and New Testament and learn and repeat the Church Catechism. The only boys of the Jewish persuasion who were admitted into the school were Joseph Joseph, eldest son of Michael Joseph, and Lemuel Lyon, son of Joseph Lyon. Michael Joseph, on the occasion of his son's admission, requested that Joseph Joseph might not be desired to attend the morning and evening prayers, on account of his religion ; the master, however, did not dispense with Joseph Joseph's attendance, but permitted him to sit instead of kneel during the prayers. At his father's request Joseph Joseph was permitted to be absent from school every Saturday and also on such days as were Jewish holidays ; Lemuel Lyon was also absent (though apparently his father made no request on his behalf) every Saturday and on the Jewish holidays ; and neither Joseph Joseph nor Lemuel Lyon, on account of their religion, ever read the New Testament or learned the Church Catechism, as all the other boys did. Li 1 8 15 a school had been founded for instructing the poor boys of the town upon Dr. Bell's system of education, by the name of the preparatory school; but no Jew boy had ever been educated in the preparatory school. On the afternoons of Tuesday and Thursday in each week, being the half-holidays of the boys, the school was opened for the education of girls residing in the town, in reading, writing, and arithmetic. Two daughters of Michael Joseph, three daughters of Joseph Lyon, and two daughters of Godfrey Levi, came to the preparatory school for education for about six months. The daughters of Michael Joseph informed the master that, being Jewesses, they were not allowed to read the New Testament, and he permitted THE JEWS AND THE ENGLISH LAW 4 1 them to read the Commandments and the Bible only. The children of Joseph Lyon and Godfrey Levi, being little children, were on the above afternoons put with children of the same class to read the parables and miracles of the New Testament. All the Jew children stayed away from the school on certain days which were Jewish holidays. The petition was presented by the before -mentioned Joseph Lyon, his daughter Sheba Lyon, and Michael Joseph, all of the town of Bedford, by five of the elders of the congregation of the Dutch and German Jews assembling at the Great Synagogue in Duke's Place, and by a similar number of the elders of the congregation of the Dutch and German Jews assembling at the New Synagogue in LeadenhaU Street^. A considerable part of the arguments and judgment was directed to the right of the elders of the synagogues to be petitioners, and it is upon this point that the case is usually quoted in the law books. This, however, was a purely technical question, a discourse on which would be out of place here, though it may be stated that Lord Eldon decided against the claim of the elders to be petitioners, as they had no direct interest in the administration of the charity. The arguments were put forward with great ability by Sir Samuel Romilly on behalf of the petitioners, and the Solicitor-General, Sir Robert Gifford, on behalf of the trustees. Want of space necessitates their omission here, except in 'so far as the Lord Chancellor commented upon them in his judgment. Among the remarks he made before giving final judgment, he said : " A doubt has also occurred to me, whether ' Mr. Piooiotto in his Sketches qf Anglo-Jewish History, at p. 289, mentions this case, and informs us that the matter was originally laid before the authorities of the Great Synagogue, who at once appointed a committee to investigate the subject, and sought the co-operation of the other Synagogues in London ; but that the Hambro' Synagogue and the Sephardi Synagogue declined to entertain the matter, referring it to the Board of Deputies. He says that the court decided that a Jew was not a "parishioner." It is remarkable that this word is not to be found throughout the seventy pages of the very learned and accurate report. 42 THE JEWS AND THE ENGLISH LAW admissibility into the school is within my exclusive juris- diction; whether it does not belong to the Visitors, the Warden and Fellows of New College. They have intro- duced a variety of regulations for the conduct of the boys' school, with which no Jew boy could comply. Without now giving final judgment, I have no doubt that a Jew boy cannot have the benefit of that school, because he cannot comply with these regulations ^." At length, on May ii, 1819, in finally disposing of the petition. Lord Eldon suggested that a new petition should be presented by the trustees, stating that doubts had arisen as to the construction of the Act in regard to Jews, and submitting to the court what they take to be the true exposition, as far as those persons are concerned. He added : " On the letter stated in the petition, as on a great deal urged to me in argument, those liberal ideas about worshipping God in church, chapel, or synagogue, I purpose to make no observations ; it is not necessary. The decision in Da Costa v. De Paz has established that no one can found by charitable donation an institution for the purpose of teaching the Jewish religion; but it is quite a different question whether property can be given to perform charit- able acts to persons who happen to be Jews ; and it appeai-s to me that the present is a mere question whether these individuals are or not, within the four comers of this Act of Parliament, objects of the charity thereby given. I have no concern with general principles : I am only to construe the Act V A new petition was accordingly presented by the trustees, praying a declaration whether the poor inhabitants of the town of Bedford who were of the Jewish persuasion were entitled with Christians to the benefit of the Bedford Charity for themselves or their children. And it was not until Aug. 23 that Lord Eldon pronounced his decision on the whole case. In the course of his judgment he said : "This charity had its foundation in letters patent of ' a Swanston, p. 520. ' Ibid., p. 522. THE JEWS AND THE ENGLISH LAW 43 Edward the Sixth, who founded a grammar school at Bedford as in many other parts of the kingdom, and this is the foundation of a school, pro institutione et instruc- tione puerorum et juvenum in grammatica literatura et bonis moribus." He then, having gone through the provisions of the Acts of Parliament and summarized the evidence, proceeded as follows: — "Many arguments were addressed from the bar on the practice and principle of toleration. I apprehend that the present question is perfectly simple in its nature, and neither more nor less than this, whether the letters patent of Edward the Sixth and these Acts of Parliament have or have not comprehended within the true construc- tion of their provisions persons of the Jewish persuasion ? Whatever my sentiments may be of the opinions expressed in some clauses of the letter written on that occasion, I apprehend that it is the duty of every judge presiding in an English court of justice, when he is told that there is no difference between worshipping the Supreme Being in chapel, church, or synagogue, to recollect that Christianity is part of the law of England ; that in giving construction to the charter and Acts of Parliament he is not to proceed on that principle farther than just construction requires ; but to the extent of just construction of that charter and those Acts, he is not at liberty to forget the law of the land. " With respect to usage, as far as usage is to be looked to for an exposition of the charter, it may be convenient first to consider it with reference to the question whether Jew boys can be admitted to the school, and next to the admission of Jewish maidens. I am not sure that the first question does not belong to the Visitors ; but I have no diflGlculty in giving my opinion on it. " An observation not without weight is, that this school was founded as a grammar school by Edward the Sixth, who founded many throughout the kingdom, and the words ' grammar school ' have generally been construed to mean 44 THE JEWS AND THE ENGLISH LAW a school for instruction in the learned languages ; but I believe that it has been the practice from the beginning and I hope that it still continues and will long continue, that in these schools great care is taken to educate youth in the doctrines of Christianity ; to teach them their duty to God and their neighbour in the terms in which those duties are taught in the Catechism ; and I remember the time when boys so educated were attended to church every Sunday by their master, thereby giving to them the oppor- tunity of learning the principles of that establishment which the law certainly favours. " The result of the aifidavits is, that it does not appear that any Jew ever partook of the benefits of the charity till within the last thirty years ; that a Jew has voted in the choice of trustees, being canvassed for his vote by one of the aldermen of Bedford, and that two or thi-ee Jewish children have been admitted into this school (in what manner conducted will be seen presently), that they have not received the benefits of other parts of the charity, the afiidavits accounting for that, because, from their circumstances of age or otherwise, they were not in a situation to solicit charitable assistance, or to be appointed trustees. Here are the regulations of the school approved by the Warden and Fellows of New College; and I can find nothing to raise an argument that would authorize me to say that they have not authority to make regulations for the conduct of the school. Even though the charter and the Acts had not excluded Jews, the charter and the Acts giving to the Warden and Fellows the power of making regulations, if these regulations in a Christian country operate to exclude Jew boys, it will remain to be considered whether that is not a due exercise of visitatorial authority and such as must be submitted to. "There is another way of considering it, whether the Visitors have not, in excluding Jews, rightly construed the charter and the Acts. I have no doubt that Edward the Sixth had not any intention for the education of Jews. THE JEWS AND THE ENGLISH LAW 45 Whatever may be our sentiments, it does not appear to me that th-ey were within the scope of the charter, nor do I think that they are within the scope of the Acts ; the Acts could not mean to comprehend persons who were not comprehended by the charter. How is it possible that the ' education of boys professing Christianity and of boys professing Judaism can proceed together? It is in evi- dence that Jew boys were absent on Jewish holidays and while the New Testament was read. They cannot comply with the regulations for education at this school in what must, according to the construction of the charter, be held to be 'boni mores.' The master always chooses the Latin and Greek books, and I know none of the grammar schools in which the New Testament is not taught, either in Latin or in Greek. In prescribing the school hours, directions are given for the attendance of the boys on every day in the week except Sunday ; it is impossible that Jew boys can give that attendance con- sistently with the observance of Jewish holidays. Prayers are to be read every morning. What kind of prayers? They are prayers in a grammar school, where the master is a clergyman, and where the scholars are to have exhi- bitions to the universities, to which it is impossible that any Jew boy can be sent. It is not necessary to go through all these particulars, because it seems to me that Jews resident in Bedford, acting conscientiously, could not permit their sons to attend this school. I am therefore clearly of opinion that there is no pretence to say that they are entitled to attend. "With respect to the other objects of the charity, the only question before me relates to Jewish maidens. First, can it be that, at the time of the letters patent, Jew girls were within their scope and meaning? Next, if it is clear that boys must be educated in the principles of Christianity, is there anything in the charter to authorize me to say that, it being the intention to found an institution a great object of which was the education of boys in the Christian reUgion, 46 THE JEWS AND THE ENGLISH LAW other objects of the charity were to be persons not professing Christianity ? Various ai'ticles interspersed all tend to show that the design of the charity was to benefit persons pro- fessing the Christian religion. I shall mention only one, that girls are required to send in their Christian names. It is said that Christian name means only first name, and that on the other construction an Anabaptist could not be admitted. Be it so ; but I apprehend that Christian name does not necessarily mean baptismal name. Though Ana- baptists do not baptize till later in life than other Christians, I think that the name which they give to their children is, in a sense, a Christian name. Another circumstance is, that the children are to attend public worship every Sunday. It is stated, and I doubt not truly, that Jewish children do attend worship every Sunday ' ; but can any one contend that the words of the letters patent, ' attending worship every Sunday,' mean more than attending on a day on which, under the Christian religion, attendance at worship is more impeirative than on any other day ? '■" Mr. Swanston gives the order as drawn up: "His Lord- ship doth declare that the poor inhabitants of the town of Bedford who are of the Jewish persuasion are not entitled to any benefit of the Bedford Charity in the said petition mentioned, for themselves or their children." It may be mentioned that the Bedford Charity was fundamentally reorganized in 1874, when the Endowed Schools Commission enacted a scheme by which the whole amount of the funds is expended upon the schools except a comparatively small sum which is allotted to the endow- ment of forty-five almshouses. Under the new scheme there is no provision which excludes Jews from participating in the charity. The judgment of Lord Eldon is now no longer of practical importance in regard to the particular charity in respect of which it was pronounced ; but the reasoning upon which ' Sir S. Eomilly had argued that the synagogue was open every day, and a Jew might attend worship there on a Sunday. THE JEWS AND THE ENGLISH LAW 47 ttis decision (delivered by one of our ablest and most careful judges after mature deliberation) was based, and the prin- ciples underlying it, are still of great moment in discussing the question which is now being dealt with. A few comments upon it will therefore not be out of place. On the admission of Jewish boys to the school the Chancellor felt no doubt, and upon this point his judgment is conclusive, founded, as it really is, if carefully examined, upon the impossibility of Jewish boys complying with the regulations properly laid down for the government of the school by the duly con- stituted Visitors of it. He, however, as his custom was, supports this reason by others which, though cogent, are not so convincing. For instance, the fact that there were no Jews living in England at the time no doubt leads to the inference that Edward the Sixth had no intention to provide for the education of Jewish children, but it by no means compels the conclusion that it was his purpose, in the event of Jews being in the future allowed to settle in the country and openly practise their religion, to exclude their children from the advantages of the institution he was founding by the charters ; and though of some weight in estimating the power of the Visitors to make the rules they had drawn up, this fact, taken by itself, could not operate to deprive any class of persons of the benefits to which they would be otherwise entitled. The impossibility of educating Christian and Jewish boys together is not now BO apparent as it was at the beginning of the nineteenth century, and the mere fact of calling a school a grammar school would not at the present time be taken to necessarily imply that instruction in the doctrines of Christianity should form part of the curriculum. But men's notions upon these matters have changed ; indeed, even in Lord Eldon's time they had been relaxed, for he mentions with regret that it was no longer customary for the scholars of a grammar school to attend the church service every Sunday accom- panied by their master. With regard to the portions for poor maidens and the 48 THE JEWS AND THE ENGLISH LAW apprenticeship fees, Lord Eldon felt some doubt; but his decision is justified by the regulation requiring attendance at public worship on Sunday. The ingenious argument upon this point, that, inasmuch as the Jewish synagogue was open every day, Jews could comply with this require- ment, was rightly overruled. On the other hand, the reasoning founded on the meaning of Christian names is far from conclusive. It will be remembered that the surplus of the funds of the charity was to be distributed in alms to the poor of the town. The effect of the order as drawn up was to exclude poor Jews from such distribution. Upon this point no argument was addressed to the court, nor is there anything in the judgment to indicate that this result was deliberately contemplated. In any case it is submitted that this particular result was not in accordance with law, and that the true principle is, as stated at the outset and borne out by the judgment delivered in the case, that charitable endowments may be confined to members of a particular faith only if words imposing such restriction are used in their creation, and that all persons, to whatever race or faith they may belong, who can and do comply with the conditions properly laid down for the distribution of an endowment are entitled to participate in it. THE JEWS AND THE ENGLISH LAW 49 IV. Haying already passed in review the law in its bearincr on the Jewish religion and endowments founded for the purpose of propagating that religion^ as well as the con- ditions under which Jews are entitled to a share of general endowments and charities, the laws concerning the civil and political status of the Jews next claim attention. For a period of more than three and a half centuries Jews were not permitted to live in England, nor is the date when they were first allowed to settle here by any means certain. However^ in considering the course of legislation, so far as it concerns the Jews, the time of the legal recognition of their resettlement is of great importance, and was much discussed in the recent case of Dr. Wilton v. Montefiore, where Mr. Justice, now Lord Justice Stirling, decided it to be November 13, 1685. The words of the learned judge are: "The history of the Jews in this country, so far as it is material to the present question, is given in a note to the report of Lindo V. Bdisario ^. After stating that the Jews appeared to have been brought here in considerable numbers by WUliam I from Rouen in 1070, and that they lived as bondsmen of the kings, and under special protection, regulations, and exemptions, till they were banished in 1290, the note proceeds as follows: 'They did not appear ' I Hag. Cons. ai6. E 50 THE JEWS AND THE ENGLISH LAW attain in this kingdom as a distinct body^ till the time of Charles II. They had petitioned in 1648 to be allowed to return and enjoy their religion, and the question was much agitated but nothing was done. On the Restoration, Charles II promised them protection and the use of their religion, and an order of Council issued to that effect.' The order is given in the Appendix, p. 3. It is dated November 13, 1685, and it provides as follows: 'Upon reading this day at the board the petition of Joseph Henriques, Abraham Delivera, and Aaron Pacheco, over- seers* of the Jewish synagogue, and the rest of the Jewish nation, setting forth that his late Majesty, of blessed memory, having found the petitioners and their nation ever faithful to the government, and ready to serve him on all occasions, was pleased in February, 1673, to signify his royal pleasure, that whilst they continued quiet, true, and faithful to the government, they should enjoy the liberty and profession of their religion, which they ac- cordingly peaceably exercised till Michaelmas Term last ; that several writs out of the King's Bench, on the statute made in the twenty-third year of Queen Elizabeth, had been taken out against forty-eight of the Jewish nation by one Thomas Beaumont, and thirty-seven of them arrested thereupon, as they were following their occasions on the Royal Exchange, to the great prejudice of their reputation both here and abroad ; and therefore praying his Majesty to permit and suffer them, as heretofore, to have the benefit and free exercise of their religion during their good behaviour towards his Majesty's government. His Majesty having taken this matter into his royal consideration, was pleased to order, and it is hereby accordingly ordered, that his Majesty's Attorney-General do stop all the said pro- ceedings at law against the petitioners; his Majesty's intention being that they should not be troubled upon ' By these words Dr. Haggard probably means having a synagogue and communal organization and openly practising their religion. THE JEWS AND THE ENGLISH LAW 51 this account, but quietly enjoy the free exercise of their religion, whilst they hehave themselves dutifully and obediently to his government.' From that time forward the Jews appear to have been permitted to reside in England and to practise the rites of their religion^." This date, November 13, 1685, in the reign of James II, is inconsistent with the popular theory that the Jews came over during the Protectorate of Oliver Cromwell in the wake of their great Rabbi, Menasseh Ben Israel, in the year 1655, and have been legally settled here ever since, nor is it much less at variance with the view of the historians, that the Jews obtained a legal settlement in England sometime during the reign of Charles II, though the precise date is not given. The true date is of some importance when the course of subsequent legislation as it affects the Jews is placed under review; and as much may be said on behalf of either theory, and as the legal theory is not necessarily correct, it will not be out of place to summarize the evidence upon which the rival theories are based, so that the reader may be enabled to form an impartial judgment on the subject under dis- cussion. Here it will be necessary to travel outside the contents of the statute book and the law reports, and to extract, thoiigh it is to be hoped not at undue length, certain entries in the public records. It must not of course be forgotten that an actual settlement is one thing, and the legal recognition of it another. The former must necessarily precede the latter. The date adopted in Mr. Justice Stirling's judgment is therefore a late one, ^ and in reality marks the last occasion on which a serious attempt was made in due form of law to prevent the Jews who had already an organized community from continuing their residence in the country. In order to understand the conditions for the solution of this problem, it is necessary to glance at the previous ' Law Reports [1900], 2 Ch. 489. E a, 52 THE JEWS AND THE ENGLISH LAW history of the Jews in this country. There can be ]ittle doubt that from the earliest times, that is, ever since England may be said to have come within the pale of civilization, Jews, prompted by that commercial instinct which has always been their characteristic, came here for the purposes of trade, and reaped the profits to be derived from it, and even settled here, though probably not in such considerable numbers as to establish distinct communities of their own until the connexion between England and the continent of Europe became closer by reason of the Norman Conquest and the events im- mediately preceding it. Therefore though there are at the present day few or no traces remaining of any Jewish settlements in England prior to the time of the Norman kings, it is a mistake, founded upon a passage in Prynne's Demurrer, to assert that the residence of Jews in England was illegal before that time. Prynne's words ^ are : " I have deduced their introduction into England only from William surnamed the Conqueror, because I finde not the least mention of them in any of our British or Saxon Histories, Councils, Synods, Canons, which doubtlesse would have mentioned them, and made some strict Laws or Canons, against their Jewish as well as against Pagan Superstitions, had they exercised them here, as they would have done as well as in Spain, and other places, had they resided here." But apart from Edward the Confessor's law, the authenticity . of which Prynne disputes, there are contained in the Liber |: Poenitentialis of Theodore, who was Archbishop of Canter- I bury from 668 to 690 A. D., and the Excerptiones of Ecbert, who was Archbishop of York from 735 to 766 A. D., a not inconsiderable number of canons and regulations relating to the Jews : e. g. it was provided that a Christian woman committing fornication with a Jew should undergo severer penalties than if guilty of the same offence with a Christian ^ ; ' Prynne's Demurrer, part I, p. 5. ' Theod. Lib. P., XVI, § 35. THE JEWS AND THE ENGLISH LAW 53 and tbat if any celebrated the feast of Passover with the Jews, he should be expelled from every church ^ ; and that if any Christian received unleavened bread or any food or drink from the Jews, he should do penance on bread and water for forty days ^ ; and that if a Christian were to sell another Christian, although his own slave, to Jews, he was to suffer severe penalties until he redeemed him ^. Again, mass was not to be celebrated in any place where the bodies of Jews or infidels were buried *, and no Christian was to turn Jew or take part in Jewish feasts ^. However this may be, there can be no doubt that after the Norman Conquest separate Jewish communities were to be found in many of the more important towns. The Jews, or "ludaei," as they were called, living in these communities, possessed a separate and distinct legal status. This status was very similar to that of the villein, with this distinction, that the Jew was not ascriptus glebae, and was in every case subject to the king, and not to the lord of the manor, as the villein was. It is well described in the twenty-fifth law of Edward the Confessor, which may be translated as follows : " All Jews, in whatever part of the kingdom they may be, are under the liege protection and guardianship of the king; nor can any of them attach himself to any rich man without the king's licence, because the Jews themselves and all their chattels are the king's. But if any one detains them or their chattels, the king may claim them as his own °." Such a status was consistent ' Theod. Lii. P., XXX, § 4. ' Ibid., XLII, § i. ' Ibid., § 4 ; Ecb. Ex. 150. * Theod. Lib. P., XLVII, § i. ' Ecb. Ex. 147. ' As to this law Prynne says : " I cannot but reject it as counterfeit, and esteem it rather a Declaration of the Jews' condition in England in Hoveden's time (inserted by him, as well as some other things of punier date, amongst these Laws) rather than any Law of, or in the Confessor's days, wherein I can find no evidence of any Jews' residence here, but only this interpolation and forged Law, which Mr. Selden wholly omits in his Collection of his Laws." Hoveden lived in the reign of Henry II, and probably died in 1201 a. D.; and though Prynne thinks the law 54 THE JEWS AND THE ENGLISH LAW with a large amount of freedom : as against all the king's subjects they were free and possessed of all the rights of freemen, but their persons and property were under the absolute control and disposition of the king, whose exac- tions were only restricted by that prudence which warns the owner not to slay the goose that lays the golden eggs. So important a source of revenue did the Jews become that a special court, the Exchequer of the Jews, was established in the reign of Richard I ; this court had jurisdiction in all causes whether civil or criminal in which Jews were implicated ; though purely civil cases in which both parties were Jews were frequently, if not generally, remitted to a purely Jewish tribunal, to be decided by Jewish and not by English law. The Jews were not popular ; they were the licensed money-lenders of the land — in this trade they had an absolute monopoly' — and the creditor is rarely beloved by his debtor. The barons looked with jealous eyes on the Jews' wide privileges in relation to their fellow men ; but it was not till towards the close of Henry Ill's long reign that their civil rights were materially abridged by statute, though they were always subject to such restrictions as the king in his discretion might think fit to impose. In the year 1271a statute ^ was enacted prohibiting Jews from holding lands in fee (the houses they then possessed being expressly excepted), and also from having Christian servants, while about the year 1375 the famous statute de la Jeuerie or de ludaismo was passed, which forbade usury to the Jews, and enjoined that every Jew should wear a yellow badge on his outer garment and pay a yearly tax of threepence to spurious, he admits that it correctly represents the legal status of the Jews in the latter part of the twelfth century. See Bracton, f. 386 b. The law is now accepted as genuine, and is included in the Ancient Laws and Institutes of England printed underthe direction of the Commissionors on the Public Records of the Kingdom in 1840. ' Usury was most strictly forbidden to Christians as being contrary to the law of God and of the land. See Co. 3 Inst, p. 251. ^ Rymer's Foedera, I, 489. THE JEWS AND THE ENGLISH LAW 55 the king ; on the other hand, the Jews wero to be under the king's protection, and might gain their living by- lawful merchandise and labour, and might buy houses in the cities where they lived and hold them in chief of the king, and might take farms or land for the term of ten years or less. But the licence to take lands to farm was to endure for only fifteen years ^. Such was the position of the Jews before their final departure from the country in 1390 ^ This event is accurately described in Stubbs's Constitutional History: "At the same time (as the July Parliament) by an act done by himself in his private council" ("per regem et secretum concilium," Hemingb. II, 20) " he banished the Jews from England : the safe-conduct granted-them on their departure is dated on the ayth of July ^." ' These safe-conducts are the most important documents still in existence relating to this event. The one referred to by Bishop Stubbs is addressed to all the bailifis, barons, and shipowners of the Cinque Ports, commanding them that, inasmuch as a certain time has been fixed for all the Jews to quit the realm, to give them a safe passage for themselves, their wives, children, and chattels, and to charge them no more than the ordinary and accustomed freight, and enjoining them under pain of severe forfeiture from injuring or, so far as in them lay, allowing others to injure or molest any of the Jews in property or person*. • Statutes of the Eealm, I, 221. ' For further detail the reader is referred to Pollock and Maitland's Bistory of English Law before the time of Edward I, vol. I, pp. 451-459) ^^d Gneiat's Constitutional History, p. 228 note, and also The Expulsion of the Jews from England in 1290, by B. L. Abrahams, and the Introduction to the Jewish Historical and Selden Societies' edition oi Select Pleas, Starrs, &e., by J. M. Rigg, which has appeared while these pages were in the press. ' Stubbs, Const. Hist., II, 126. * Eymer, Foed., vol. I, part 2, p. 736. Coke gives from the Close Rolls a similar writ addressed to the sheriff of G. and dated July 18, lago. Inst., II, p. 507, and see Tovey's Ang. ludaica, p. 241, and at p. 232 the entry in the Red Book of the Exchequer is given. 56 THE JEWS AND THE ENGLISH LAW The decree of banishment itself is no longer extant, but Dr. C. Gross has discovered a document which throws much light upon it. This document is in the form of a writ issued from King's Clipstone on November 5, 1 290, and addressed to the Treasurer and Barons of the Exchequer. It recites that though by the statute passed at Westminster (the statute de ludaisrrno) the Jews had been forbidden to take usury of any Christian, nevertheless they still exacted interest under the name of " courtesy '," and thereby op- pressed the people ; wherefore on account of their crimes and in honour of Christ, the king had compelled them to quit the realm as being perjured, and proceeds to order that no penalty or interest should be exacted in respect of debts due to the Jews, and that the debtors should pay only the principal moneys they had actually received from the Jews ^. The exile of the Jews did not annul debts due to them, but such debts became payable to the king, whose bondmen the Jews had been. They had been ordered to leave the kingdom before a fixed time, which is not stated in any of the documents, but is generally believed to be the first of November ^ ; the writ in question was therefore issued immediately after their final departure. In consideration of having issued this decree of banish- ment, the Parliament which was then sitting, composed as it was in a great measure of landowners to whom Jewish usury had been a heavy burden, granted the king a fifteenth " pro expulsione ludaeorum." But the transaction was not a very profitable one to the crown, for by it a plenteous ' The original word is curialitas, which is quite distinct from the "curialitas Angliae" or interest which the husband has in his wife's freehold land. It probably does not occur elsewhere in this sense in mediaeval jurisprudence, and is not to be found among the terms ex- plained in "Termes de la ley." It is used in the Corpus iuris, but with a yery different meaning. Novell. VaUntiniom. tit. 3, § 3. " Add. MSS., Mus. Brit. 32,085, fol. 122, Publications of the Anglo- Jewish Historical Exhibition, I, 229 ; Eigg, Select Pleas, pp. xl-xlii. ' Mathew of Westminster, a contemporary chronicler, says the king had allowed them to stay till the Feast of All Saints (Tovey, p. 233). THE JEWS AND THE ENGLISH LAW 57 source of the revenue was for ever cut off, and that at a time when the king was expected to defray the ordinary expenses of the state out of his hereditary revenues, and subsidies were only voted by the Parliament on special and extraordinary occasions. Yet in the year 1290 this source ^^ could not be expected.,to yield as rich a hai-vest as it had done in former days. ^ The prohibition of usury in the third year of Edward I, even if occasionally evaded, had greatly diminished the resources of the Jews, and the licence to take lands to farm, which was to endure for only fifteen years, was now about to expire, and thus another road to the acquisition of wealth was closed to them. Had they been allowed to remain, the Jews hampered by these restrictions imposed by Act of Parliament, and therefore removable only by Act of Parliament, would no longer have been as profitable to the king as they had been in former times, when, in the words of Lord Coke, " a great revenue by reason of the usury of the Jews came to the crown; for between the fiftieth year of Hemy III and the second year of Edward I, which was not above seven years complete, there was paid into the king's coffers four hundred and twenty thousand pounds of and for the usury of the Jews \" This is a truly enormous sum, having regard to the value of money and the total wealth of the country in the thirteenth century. But after the statute de ludaismo such rich harvests were no longer to be reaped, and in all probability this knowledge had considerable influence on the king's mind, in addition to the proffered gift of a fifteenth by the Parliament and the , knowledge that a great part of the property still remaining to the Jews would come to him by way of escheats ^. -^ ' 3 Inst., 151. ^ Madox, History of the Exchequer, p. 261. See note r. " MCCLXXXX eieeti sunt ludaei ab Anglia cum facultatibus suis; salvis cartis Cliri- stianorum penes Dominum Eegem residentibus," ex Cod. Vet. MS. (^Annals of theChurchof St. Augustine at Canterbury), 4. ^, p. 102. At p. 221 Mr. Madox ^ says : "The King of England was wont to draw a considerable Eeyenue , from the Jews residing in this Realm: namely, by Tallages, by Fines . 58 THE JEWS AND TUE ENGLISH LAW Looking back over the gulf of centuries, this event can be descried with sufficient clearness, but the loss of the proclamation of banishment has left it wrapped in some obscurity that has given rise to several erroneous theories that should here be mentioned. Lord Coke says that there "l was no banishment of the Jews, but only a voluntary ' exodus in consequence of the suppression of usury. " Our noble King Edward I and his father Henry III before him sought by divers Acts and Ordinances to use some mean and moderation herein, but in the end it was found that there was no mean in mischief, and as Seneca saith, ' Res profecto stulta est nequitiae modus.' And therefore King Edward I, as this Act" (the statute de Ivdaismo) " saith, in the honour of God, and for the common profit of his people, without all respect (in respect of these) of the filling of his own coffers, did ordain, that no Jew from henceforth should make any bargain or contract for usury, nor upon any former contract should take any usury, from the Feast of Saint Edward then last past ; so in efiect all Jewish usury was forbidden." .-— tr^jjjg La-^y struck at the root of this pestilent weed, for hereby usury itself was forbidden ; and thereupon the cruel Jews thirsting after wicked gain, to the number of relating to Law-proceedings, by Amerciaments imposed on them for Misdemeanour, and by the Fines, Ransoms and Compositions, -which they were forced to pay, for having the King's Benevolence, for Protection, for Licence to trade and negotiate, for Discharges from Imprisonment, and the like. He would tallage the whole Community or Body of them at Pleasure; and make them answer the Tallages for one another. If they made Default at the Atterminations or Days of Payment prefixed to them, they were charged with great Fines or Compositions for it. In Sum, the King seemed to be absolute Lord of their Estates and Effects, and of the Persons of them, their Wives and Children. 'Tis true, he let them enjoy their Trade and bequests ; but they seemed to trade and acquire for his Profit as well as their own : for at one Time or other, their Fortunes or great part of them came into his Coffers. They were a numerous Body (being settled in many, especially the great Towns of the Realm) : and by TrafiSc and taking of usuries and mortgages of the Fling's subjects, they became very wealthy both in Money and Land. But as they fleeced the subjects of the Realm, so the King fleeced them." THE JEWS AND THE ENGLISH LAW 59 15,060 departed out of this Realm into foreign parts, where they might use their Jewish trade of usury, and from that time that Nation never returned again into this Eealm.j Some are of opinion (and so it is said in some of our Histories) that it was decreed by authority of Parliament, That the usurious Jews should be banished out of thej Realm ; but the truth is, that their Usury was banished by; this Act of Parliament, and that was the cause that they ! banished themselves into forein Countries, where they might live by their Usury ; and for that they were odious both to God and man, that they might passe out of the Realm in safety, they made Petition to the King, that a certain day might be prefixed to them to depart the Realm, to the end that they might have the King's Writ to his Sherifes for their safe conduct, and that no injury, molestation, damage or grievance be offered to them in the mean time ^." Coke's error is due to his post-dating the statute de ludaisnio, and attributing it to the Parliament of 1290. It is still placed among the statutes of uncertain date by the commissioners responsible for the statutes of the realm. In the Harleian MS. it immediately succeeds the Statute of Westminster I, passed in the third year of Edward I, and in the document discovered by Dr. Gross at the British Museum it is stated to have been enacted " in quindena Sancti Michaelis anno regni nostri tertio " ; so that the date is now placed beyond all doubt ^. The basis of Coke's theory is thus destroyed. Prynne, on the other hand, is very positive that the banishment was effected by Act of Parliament ; his words are : .V This their banishment was by the unanimous desire, Judgment, Edict, and Decree both of the King and his Parliament ; and not by the King alone : and this Banish- ment, total, of them all, and likewise final, never to return * a Inst., 507. ' Add. MSS., Mus. Brit., 32,085, fol. 122. Prynne in his Demurrer, at p. 34, places the statute in the year 1287, but in his Eecords, vol. Ill, p. 153, he attributes it to 4 Edw. I. 6o THE JEWS AND THE ENGLISH LAW into England. Which Edict and Decree not now extant in our Parliament Rolls (many of which are lost) nor printed Statutes ; yet it is mentioned by all these Authori- ties '." Prynne here aUudes to different chroniclers, extracts from whose works he had already given ; but these extracts when carefully examined do not bear out his assertion. This view held by Prynne was undoubtedly very widely spread, and at one time held by both the supporters and opponents of the Jews' readmission ; for the first petition presented on behalf of the Jews to the Council of War on Jan. 5, 164!, some seven years before Prynne wrote his Demurrer, is entitled, "The petition of the Jews for the repealing of the Act of Parliament for their Banishment out of England," and speaks of the instrument of expulsion as "the inhumane, cruel statute of banishment." But those responsible for this petition seem to have been but ill acquainted with English history and jurisprudence, for the banishment is said to have taken place in the reign of Richard 11^. Prynne has the candour and honesty to admit that the alleged statute was no longer in existence, but " B. B.," the anonymous author of A Historical and Law Treatise against the Jews and Judaism, a virulent diatribe against the Jews, published in 1703, which was so popular with the anti-Semites here that it was re- printed in 1 72 1 and again in 1753 as the second edition — perceiving the weakness of this theory on account of the total disappearance of the alleged statute, unblushingly asserts that it is to be seen on the Roll of Parliament in the Tower. From internal evidence it is clear that this writer had carefully studied Prynne's Demurrer, and it is> impossible to escape the conclusion that his statement is a wilful falsehood, made in reliance on the improbability of any of his readers taking the pains to verify it. Prynne was above such a statement as this, but feeling that the authorities he had cited were not conclusive, and fearing ' Demurrer, p. 49. = Hag., Cons. Cas., I, Ap. No. i. THE JEWS AND THE ENGLISH LAW 6 1 that the term " groundless conceit," which he had applied to Sir Edward Coke's theory, might with equal justice be appHed to his own, he concludes his argument with the statement that by the fundamental laws of England, " No Freemen and Natives of England can be justly banished or exiled out of it but by special judgment of Parliament, or by Act of Parliament," as authority for which he cites Magna Charta, c. 29, and a large number of Acts of Parliament banishing individuals at various times. There- fore, he says, the Jews being banished by Act of Parlia- ment " (never since repealed or reversed) neither may nor can by Law be readmitted, reduced into England again, but by common consent and Act of Parliament : which I conceive they will never be able to obtain^." It can hardly be denied that Prynne was carried away with excessive zeal to make good the proposition, to prove which he had sat down to write his Demurrer. He had, as he says in his "Preface to the Christian Reader," been asked by Mr. Nye, the minister, " whether there were any law of England against bringing in the Jews amongst us ? for the Lawyers had newly delivered their opinions, there was no law against it." To which he had answered " That the Jews were in the year 1290 all banished out of England, by Judgment and Edict of the King and Parliament, as a great Grievance, never to return again: for which thej Commons gave the King the fifteenth part oiTEeirlSlo ve-* ables : and therefore being thus banished by Parliament, they could not now by the Laws of England, be brought in again, without a special Act of Parliament, which I would make good for Law." The conference to consider the demands of Menasseh ben Israel was stiU sitting at Whitehall, and party feeling ran high ; otherwise so sound a lawyer as Prynne would not have overlooked the fact that the famous clause of Magna Charta applies only to freemen, and that in the year 1290 no Jew could claim to be a liber homo. As has been already shown, the Jews ' Dermtrrer, p. 50. 62 THE JEWS AND THE ENGLISH LAW were serfs or villeins, and by the statute de ludaisrao passed only fifteen years before, the privilege had been granted to them of not being challenged or troubled in any court, except in the court of the King, " whose Bond- , men they are " (" ky serfs yl sunt "). The Jews conse- quently had no right to the benefit of Magna Charta or any other fundamental law of the land that applied to freemen only, and could accordingly be banished, as in fact ■^they were, by decree of the King alone. There is yet a third theory of the expulsion which need be but briefly mentioned here. It is that sentence of exile was passed upon the Jews by a synod held in London. This does not rest on very strong authority, and it is certain that the clergy, whatever their wishes might have been, had no legal power to efiect the expulsion of the Jews^. It has been lately suggested that in spite of the decree of banishment and the severe penalties which disobedience to that decree would undoubtedly have entailed, some Jews still remained in this country. The suggestion is based upon httle trustworthy evidence, and does not call for any comment here; for if any did remain they were very soon amalgamated with and became indistinguishable from the general mass of the population. Then, again, as the centuries rolled on individual Jews from time to time can be proved to have landed on pur shores, but they never attempted to establish a Jewish community here or to celebrate their worship publicly in this country ; they were treated as other foreigners and subject to the laws which governed aliens^. It is therefore true to say that for a period of more than three centuries English history is a blank so far as the Jews are concerned ; but in that long interval occurred two events of great importance in relation to the return of the Jews here. Those events ' See Wilkins's Concilia, II, p. i8o ; Pike, History of Crime, vol. I, p. 465. ' See "The Middle Age of Anglo- Jewish History," by L. Wolf, in Publications of the Anglo-Jewish Historical Exhibition, vol. I, and other works there cited. THE JEWS AND THE ENGLISH LAW 63 were the extinction of villenage and the reformation of the English Church. The disappearance of villenage is one of those great changes which has been brought about without the intervention of the legislature. To a great extent this result was effected by the attitude of the courts of common law, which admitted every presumption in favour of liberty, and in practice made it difficult and finally impossible to sustain a claim to a villein, if it was seriously contested. The last reported case in which villenage was pleaded was tried in Hilary Term, 1617 (15 Ja. I), and, as in numerous other instances, the claim was not upheld^. From the 15th of James I, says Mr. Hargrave in his learned argument in Sommersett's case, " the claim of villenage has not been heard of in our courts of justice ; and nothing can be more notorious, than that the race of persons, who were once the objects of it, was about that time completely worn out by the continual and united operation of deaths and manumissions^." Had the case of the Jews occurred to him, he might have added banishment also. Villenage had thus become obsolete, but the laws and rules relating to villenage had never been repealed, and by these laws the sovereign as much as the private citizen was bound ; therefore if Queen Elizabeth had laid claim to Rodrigo Lopez as her villein, it would have been necessary for her to prove either that Lopez had made confession that he was her villein in a court of record, or that he and his ancestors had been villeins to herself and her predecessors time out of memory — that is to say, for a period of sixty years, as limited by 32 Hen. VHI, cap. 2. Such proof would obviously not have been forthcoming, and no such claim was ever made by any of our sovereigns against those Jews who from time to time landed on our shores. But if they were not villeins then the disabling statutes enacted before * Pigg s. Caley, Noy 27. ^ J. 0. Howell's State Trials, p. 41. 64 THE JEWS AND THE ENGLISH LAW the expulsion did not apply to those Jews who might return and reside here. The disabling acts no doubt applied to " ludaei " or Jews, nor were any exceptions made in the statutes, but the Jews who came back to England in the seventeenth century were free men ; they were no longer villeins or quasi-villeins, and were not " ludaei " within the meaning of the Acts. This principle of inter- pretation is well known to English law, and after much discussion and considerable disagreement among our greatest judges as to its application, was acted on in a recent case in which it was held that the enclosure at Kempton Pai-k was not a place within the meaning of the Betting Act^. In that case reliance had to be placed on the preamble of the Act, and also upon extrinsic evidence of the circumstances existing at the time when the Act was passed, and it was the necessity of going outside the words of the statute itself which occasioned the difference of opinion among the judges ; but in the very body of the statute de ludaismo, the Jews, as has been already pointed out, are repeatedly called the King's bondmen, and therefore this difficulty would not arise. Certain it is that many generations of Jews lived in this country in open and flagrant violation of these obsolete statutes. They did not wear yellow badges on their outer garments ; they employed Christian servants, and in some cases they did put out money to usury and held lands and houses ; and yet no attempt was ever made to enforce the laws prohibiting such things, and that though, as contemporary pamphlets prove, there were undoubtedly many persons willing, nay eager, to annoy and injure the Jews had it been in their power. And yet in the year 1846 it was thought advisable to solemnly repeal by Act of Parlia- ment "the Statute or Ordinance of the fifty-fourth and fifty-fifth years of the reign of King Henry the Third, and the Statute or Ordinance commonly called Statutum ' Powell t). The Kempton Park Eacocourse Company, Limited, [1897] 2 Q. B., 242, and [1899] A. C, 143. THE JEWS AND THE ENGLISH LAW 65 de ludaismo ^." If the view here stated is correct this was a work of supererogation, but in any case if there ever existed any doubt after the resettlement as to the absolute freedom and equality of the Jews with their fellow citizens before the law, it has now been removed. Much as the decay of villenage might have facilitated the return of the Jews by rendering the former disabling enactments no longer applicable to them, the various laws passed in consequence of the Eeformation of the English Church and the events which immediately preceded and led up to it were no less eflfective in retarding a resettle- ment. These laws may be classified under two heads: (1) those constituting the proclamation, teaching, or propa- gation of doctrines at variance or inconsistent with the tenets held for the time being by the Church as by law estabUshed, a criminal offence — the law of heresy ; (3) those making criminal, failure to attend the service of the Church as by law established, and also the attendance at services other than those of the Established Church — the law of uniformity, to a great extent embodied in the statutes known as the laws against recusants. At the time of the expulsion of the Jews, and indeed until the days of Wycliffe and the rise of the Lollards nearly a century afterwards, heresy was almost unknown in England ; and if there was any legal machinery other than excommunication and ecclesiastical censure, by which such a crime could be punished, there were but few occa- sions when it was brought into operation, and the fact that WycliSe and his earlier disciples escaped all temporal penalties goes far to show that though heresy even in those times was regarded as a heinous crime, there was no regular procedui-e by which those tainted with it could be brought to justice and punished. In any case the Jews, who had lived here as the King's villeins and under the special protection of the King, had not been liable to be charged with heresy; but if they converted a Christian • 9 & 10 Vict. cap. 59. F 66 THE JEWS AND THE ENGLISH LAW to their religion, the apostate would have been treated with extreme rigour. Perhaps the best-authenticated case of capital punishment for heresy before the year 1400 A.D. is that of a deacon who in the year i333, because he had : become a Jew for the love of a Jewess ("pro quadam ludaea"), was degraded by Stephen Langton, Archbishop of Canterbury, at a provincial council held at Oxford, and then delivered over to the sheriiF as representing the civil power and forthwith burned ^ There is grave doubt as to the legality of the latter part of this punishment ; there seems to have been no sort of judicial proceeding of any kind when once the unfortunate cleric was handed over to the civil power ; nor can it be determined under what precise enactment the capital punishment was ordered, and the sheriff who carried it out was Fawkes of Breaut^, a man notorious for high-handed and lawless acts of violence. The infliction of the death penalty for heresy was, however, common on the continent, and this particular case (the offence being a flagrant one), though viewed with surprise by contemporaries, seems to have met with general approval. It cannot, however, be taken as an authority that heresy would in ordinary cases be visited with severe temporal punishment. The impotence of the law is made manifest by the complete failure of the measures taken against Wycliffe and his followers, and in May of the year 138a, when the Wycliffite controversy was at its height, the clergy actually managed to fraudulently introduce into the statute book an ordinance enabling the arrest and imprisonment of heretics ; but in October of the same year the Commons represented to the King that the pretended statute had never received their assent and it was accordingly repealed^. Wycliffe, the arch-heretic, • Bracton, i. 124, vol. II, p. 300. Ann. Wykes, p. 63. Matthew Paris, voL III, p. 71, says he was hanged. See Maitland, Canon Law in the Church of England, pp. 158-179. ^ The statute is 5 Rich. II, stat. 2, cap. 5. See Statutes of tlie Realm, II, p. 25 ; Rot. Pari. Ill, 125 and 141 ; " The case of Heresy," 12 Eep. 56. THE JEWS AND THE ENGLISH LAW 67 was allowed to die a natural death, and it was not until the beginning of the reign of Henry IV that a thoroughly- reliable weapon for the suppression of heresy was placed in the hands of the Church. In the year 140 1 the famous statute de Haeretico was passed ; it enacted that no one should preach or write contrary to the Catholic faith or determination of holy church, or hold any conventicles or schools for teaching such doctrines, or favour or main- tain any such teacher, and it empowered the diocesan to cause any one " defamed or evidently suspected " of being guilty of any of the offences enumerated in the statute to be arrested and detained in prison until he should canonically purge himself and abjure his heretical and erroneous opinions. The diocesan was to openly and judicially proceed against him according to the canonical decrees within three months of the arrest, and if he were convicted he was to be imprisoned and fined after the " manner and quality of the offence " at the discretion of the diocesan, but if he should refuse to abjure or after abjuration should relapse, so that according "to the holy canons he ought to be left to the secular court, then he is to be handed over to the sheriff or other proper officer who shall receive him and "before the People in a high place do to be burnt ^." Before the statute was promul- gated, and while the Parliament which passed it was stiU sitting, William Sawtre was pronoimced by Arundel, Arch- bishop of Canterbury, in the provincial councU, a relapsed heretic, degraded and committed to the secular court. A writ was accordingly issued by the King in Parliament ordering the heretic to be burned^, and the sentence was The Act declaring s Kich. II, stat. 2, cap. 5 void was omitted (it is said through the craft of the clergy) from the published editions of the statutes ; therefore in the days of the Eeformation 5 Eich. II, stat. 2, cap. 5 was treated as still subsisting, but it could hardly have been acted upon until the action of the House of Commons had been forgotten. It was finally repealed by the Statute Law Eevision Act, 1863. ' 2 Henry IV, c 15. Stalutes of the Sealm, II, p. 125. ' A copy of the writ is to be found in Eot. Pari, III, 459. F 2 68 THE JEWS AND THE ENGLISH LAW carried out. The writ is dated February 26, though the Parliament which passed the statute de Haeretico did not break up until March 10, and this fact is the main basis of the argument that after the statute de Haeretico had been formally repealed, heretics might still be committed to the flames because the writ de Haeretico comburendo could issue at common law independently of the statute. Fourteen years later it was thought right to still further increase the severity of the law. 2 Hen. V, stat. i, cap. 7 provides that the chancellor, justices, and magistrates shall make an oath to use all diligence in destroying all manner of heresies and errors, commonly called Lollardries, and that all persons convict of heresy and left to the secular power according to the laws of holy church shall forfeit their lands and tene- ments as in the case of attainder for felony, and that their goods and chattels shall also be forfeited to the King. These acts remained in full force till the year 1533, and were frequently resorted to. They placed almost unlimited power in the hands of the Church. There was no definition of heresy, and the bishops were thus empowered to punish any views which were at variance with their own. The procedure was also most drastic ; a person once pronounced to be an obstinate or relapsed heretic was handed over to the civil power, which had no alternative but to execute the utmost rigour of the law. We can thus explain the total absence of any effort to establish a Jewish colony in England after the banishment from Spain in 1492. The knowledge of the severity of the English law combined with the memory of the cruelties that accompanied the expulsion two hundred years before would effectually discountenance any such attempt. Under Henry VIII and Edward VI the law as to heresy was considerably altered, but it was not varied in such a way as to give any sort of toleration to those who held principles in conflict with the doctrines proclaimed by the sovereign as supreme head of the Church as binding on all its members. Many heretics were put to death in the THE JEWS AND THE ENGLISH LAW 69 reign of Henry VIII, and in the short reign of Edward VI at least two persons were burned for heresy^. Mary, shortly after her accession, procured the passing of an "Acte for the renueing of three Estatutes made for the punishment of Heresies," providing that the three statutes enacted in the reigns of Eichard II, Henry IV, and Henry V, already mentioned, should " from the xxth day of Januarye next coming be revived and be in full force strengths and effecte to all Intentes construcions and purposes for ever^." The fierce and merciless persecution that ensued has caused a horrible but not undeserved epithet to be added to the name of the first Queen regnant of England, and though the number of the victims may have been exaggerated in after years, hundreds were brought to the stake within the short period of less than four years that elapsed before the Queen's death ^. When Elizabeth came to the throne, the law was again recast. The first Act of Parliament passed in her reign, commonly called the Act of Supremacy (i Eliz. cap.i, sect. 15) expressly repealed the Act of Philip and Mary under which the persecutions had taken place, as also the former statutes for the punishment of heresies revived by that Act ; but it was by no means intended to allow heresy and error to go unpunished, and therefore by sect. 17 jurisdiction for the visitation " of all manner of errors, heresies, schisms, abuses, oflfences, contempts, and enormities" was annexed to the crown, and by the following section the Queen was empowered to appoint commissioners to exercise her ecclesiastical jurisdiction, and to visit, reform, and correct * The principal statutes are 25 Hen. VIII, cap. 14, and 31 Hen. Till, cap. 14 (the Act of the Six Articles), i Edw. VI, cap. 12, i Edw. VI, cap. I, and 2 & 3 Edw. VI, cap. i (see sect. 3). The last two, though obsolete, are still technically in force. For the whole subject see Stephen's History of Criminal Law, voL II, pp. 453-460. ^ I & 2 Phil, and Mary, cap. 6. ' The exact number is given as 277. For the persecution see Dodd's CAurcAffisiory, Tol. II, pp. 101-109 ; Pike's ffisior^ 0/ Crime, vol. II, pp. 57-60, and 613. 70 THE JEWS AND THE ENGLISH LAW all errors, heresies^ &c., " to the pleasure of Almighty God, the increase of virtue, and the conservation of the peace and unity of this realm " ; but a later section (sect. ^6) limited the power of the commissioners so appointed, by declaring that nothing should be adjudged heresy unless determined to be heresy by the authority of the canonical scriptures, or by certain general councils, or by the high court of Parlia- ment, with the assent of the clergy in their convocation. This restriction was no doubt intended, and did in fact operate, to exempt Roman Catholics from prosecution for heresy — Papists obnoxious to the government were pro- ceeded against for other crimes — but it could not in any way relieve or exempt Jews, or any one who impugned the sacred doctrine of the Trinity. , Although the procedure established by the statutes passed under the Lancastrian kings was abolished, it seems to have been assumed that a culprit in the case of contumacy could be burned, and that the writ de Raeretico comburendo would issue at com- mon law. There are several instances of this having taken place. Two Anabaptists were burned in the year 1575, and two Arians as late as 161 2. One of these last, Bartholomew Legatt, was charged with holding thirteen damnable tenets, most or all of which are held by every believing Jew ; the last two are short and are here inserted from the collection of state trials : "13. That Christ by his Godhead wrought no miracle. 13. That Christ is not to be prayed unto^." There has been considerable discussion among lawyers as to the legality of the punishment in these latter cases ; into this discussion it is not our purpose to enter ; it is enough to state the fact that the convictions took place and that the extreme penalty was enforced, to show what might have been the position of professing Jews openly living and practising their religion in this country. Since the year 161 a no execution for heresy has taken place in England, nor were offenders, if it was intended to ' 2 state Trials, p. 729. THE JEWS AND THE ENGLISH LAW 71 deal severely with them, brought before the ecclesiastical courts. They were, however, dealt with by the Court of High Commission, which had been constituted in its ulti- mate form in the year 1583 under the powers supposed to be conferred on the crown by the eighteenth section of the Act of Supremacy, the substance of which has ah-eady been given. The commissioners had no power to order capital punishment, but they were authorized to award "such punishment by fine, imprisonment, censure of the church or otherwise, or by all or any of the said ways, and to take such order for the redress of the same, as by their wisdom and discretions should be thought meet and convenient " ; and these penalties were unsparingly inflicted. Their mode of procedure was most arbitrary, and by contem- poraries not inaptly compared to that of the Inquisition. There was as a rule no jury, though the court could if it wished summon a jury ; arrests were made without any legal warrant; the accused were punished, though there was no evidence against them, except such as was wrung out of their own mouths by means of the ex officio oath. " In two points alone it was distinguished from the Inqui- sition of Southern Europe. It was incompetent to inflict the punishment of death, and it was not permitted to extract confessions by means of physical torture." Such a court could be made a terrible engine of oppression by a zealous persecutor, for it assumed authority not merely to try but to seek out offenders ; for example, on April i, 1634, when Laud had held the primacy but a few months, a circular letter was sent by the commissioners to all officers of the peace in the kingdom, of the following tenor: "There remain in divers parts of the kingdom sundry sort of separatists, moralists, and sectaries, as namely — Brownists, Anabaptists, Arians, Traskites, Famil- ists, and some other sorts, who, upon Sundays and other festival days, under pretence of repetition of sermons, ordinarily use to meet together in great numbers in private houses and other obscure places, and there keep 72 THE JEWS AND THE ENGLISH LAW private conventicles and exercises of religion by law prohibited, to the corrupting of sundry his Majesty's good subjects, manifest contempt of his Highness's laws and disturbance of the Church. For reformation whereof the persons addressed are to enter any house where they shall have intelligence that such conventicles are held, and in every room thereof search for persons assembled and for all unlicensed books, and bring all such persons and books found before the Ecclesiastical Commission as shall be thought meet ^." The circular makes no mention of Jews ; had Laud and his associates known that they were at this very time beginning to creep secretly into the kingdom, this omission would hardly have been made. The court had always been unpopular, and the oppres- sive use made of it by Laud caused its abolition by the Long Parliament in 1640 by a statute (16 Car. I, cap. 11). After reciting, " Whereas by colour of some words ... in the Act (of Supremacy) . . . commissioners have to the great and insuiFerable wrong and oppression of the King's subjects, used to fine and imprison them, and to exercise other authority not belonging to ecclesiastical jurisdiction . . . and divers other great mischiefs and inconveniences have also ensued to the King's subjects," section 18 of the Act of Supremacy, under which the letters patent constituting the High Commission were issued, was repealed. A further sec- tion dealt with the other ecclesiastical courts, depriving them of all power to inflict " any pain, penalty, fine, amercement, imprisonment, or other corporal punishment upon any of the King's subjects," or to administer the ex officio oath. Thus after 1640, though heresy was not removed from the list of crimes, there was no court which could inflict any higher punishment than a purely ecclesiastical penalty. After the Restoration all the provisions of this statute, excepting those abolishing the Court of High Commission and the ex officio oath, were repealed (13 Car. H, stat. i, cap. 12), and the power of inflicting physical punishment ' Cal. S. P. Domestic, 1633-4, p. 538. THE JEWS AND THE ENGLISH LAW 73 was thus restored to the ecclesiastical courts, but some yeai's afterwai'ds, in 1679, it was further abridged by 39 Cai-. n, cap. 9, which abolished the writ de Haeretico covibiirendo, and all punishment by death in pursuance of ecclesiastical censures," reserving to the ecclesiastical courts only the power to punish atheism, blasphemy, heresy, Szc, "by excommunication, deprivation, degrada- tion, and other ecclesiastical censures not extending to death." This is still the law, but there is no record of any prosecution for heresy ever having taken place since the ecclesiastical courts were shorn of their power of inflicting corporal punishment by the Long Parliament in 1 640. Such was in outline the law of heresy ; it remains now to consider the second impediment to a Jewish resettle- ment, the Law of Uniformity. The expression Chui-ch and State is a common, almost a hackneyed one, and we are apt to forget that there was once a time when no one, who was not an adherent of the Church, could be a citizen of the State ; and when severe pains and penalties were incurred by non-attendance at church or by attendance at any religious meeting not sanctioned by the ecclesiastical authorities. Prior to the Reformation the Church had been content with punishing undei* the name of heretics those who ventured to proclaim doctrines inconsistent with her creed ; the zeal engendered by the movement for reform prompted the punishment, though with somewhat milder penalties, of those who neglected or refused to take pai-t in public worship as by law established. The first statutory provision was a very mild one. The Act of Uniformity (i Eliz. cap. 2) after enacting that the Book of Common Praj-er should be used in all churches and ordaining penalties for those who depraved it, provides (sect. 14) that " all and every person inhabiting within this realm, or any other the Queen's Majesty's dominions, shall diligently and faithfully, having no lawful or reasonable excuse to be absent, endeavour themselves to resort to their parish church or chapel accustomed, or upon reasonable let thereof, 74 THE JEWS AND THE ENGLISH LAW to some usual place where common prayer and such service of God shall be used in such time of let, upon every Sunday, and other days ordained and used to be kept as holy days, and then and there to abide orderly and soberly during the time of the common prayer, preaching, or other service of God there to be used and ministered," upon pain of punishment by the censures of the Church and of forfeit- ing for every offence twelve pence to the use of the poor of the parish. The penalty was only small, but sufficient to cause all except the very wealthy to conform, especially as the law was strictly interpreted. Serjeant Hawkins^ says of it : " he who misbehaves himself in the church, or misses either morning or evening prayer, or goes away before the whole service is over, is as much within the statute as he who is whoUy absent ; and he who is absent from his own parish church shall be put to prove where he went to church ^." It was, however, thought too lenient and was supplemented by an Act to retain the Queen's Majesty's subjects in their due obedience (33 Eliz. cap. i), sect. 5 of which ordains that every person above the age of sixteen years who does not attend church shall forfeit to the Queen's Majesty twenty pounds for every month's absence. This penalty was in addition to the forfeiture of twelve pence imposed by the Act of Uniformity, and a month was interpreted as a lunar month, so that thirteen penalties might be imposed every year. If the penalty was not paid, the offender was liable under a later statute (39 Eliz. cap. 6, sect. 4) to have all his goods and two-thirds of his lands seized to the use of the crown; one-third of his lands (if he was fortunate enough to be a landowner or a leaseholder) being left him for the maintenance and relief of his family. But even this was not enough. ' Pkas of the Crown, Bk. I, cap. 10, sect. 4. ^ It was not tiU 1704 that Chief Justice Holt decided "that if a man repaired to any other chapel, it would be good excuse for his not coming to his parish church, but then he must plead it." See Britton v. Standish, Cases Temp. Holt 141 & 3 Salt. 88. THE JEWS AND THE ENGLISH LAW 75 Twelve years later a still more stringent Act (35 Eliz. cap. i) bearing the same title was passed. Any one who obstinately refused to come to church without any lawful cause, and in addition (i) persuaded any other person to abstain from going to church or receiving the communion administered according to the rites of the Church, or to be present at any unlawful assemblies, conventicles, or meet- ings, or (a) " either of himself or by the persuasion of any other " willingly joined in or was present at any such assemblies, conventicles, or meetings under colour or pre- tence of any exercise of religion contrary to that prescribed by the Act of Uniformity, was to be committed to prison until he should conform and make open submission and declaration of his conformity. If he did not conform within three months he was to abjure the realm of England and all the Queen's dominions for ever. If he refused to abjure or after abjuration did not depart out of the realm, he was to be adjudged a felon and suffer as in the case of felony (i. e. death and forfeiture of lands, goods, and chattels), without benefit of clergy. Persons neglecting to come to church were called Recu- sants ; and if they absented themselves because they were Papists, Popish Recusants ^. This latter class was subject to still further disabilities. In Elizabeth's reign they were not allowed to remove more than five miles from home without licence {^S Eliz. cap. 2). The alarm which suc- ceeded the discovery of Gunpowder Plot — an event making so great an impression on the popular mind that its anni- versary is still celebrated with more public enthusiasm than any other event in our history, not excepting the destruction of the Spanish Armada or the battle of Waterloo — caused the enactment of still more stringent measures. These were the Act for the better discovering and repress- ing of popish recusants (3 Jac. I, cap. 4) and the Act to prevent and avoid dangers which grow by popish recu- ' The term Popish Keeusants was afterwards defined by statute, so as to include many persons who were not Eoman Catholics. 76 THE JEWS AND THE ENGLISH LAW sants (3 Jac. I, cap. 5). As many of the provisions of these Acts might not have applied to Jews, it is unnecessary to enter into them here. One provision, however, which was undoubtedly not confined to Papists, cannot be passed over. By sect. 13 of the former Act "for the better trial how his Majesty's subjects stand affected in point of their loyalty and due obedience," all persons over the age of eighteen who had been convicted or even merely indicted of any recusancy for not attending divine service, or who had not received the sacrament twice within the year might be compelled to take an oath, afterwards known as the oath of allegiance, the terms of which are set out in sect. 15. They are framed with the intention of being obnoxious to Papists, and expressly renounce and deny any authority to the Pope, so that many Roman Catholics who were ready to take the oath prescribed by the Act of Supremacy (i Eliz. cap. I, sect. 19) found themselves unable to take the new oath, the last clause of which must have been unacceptable to a rehgious Jew. It reads as follows : " And all these things I do plainly and sincerely acknow- ledge and swear, according to these express words by me spoken, and according to the plain and common sense and understanding of the same words without any equivoca- tion or mental evasion, or secret reservation whatsoever: and I do make this recognition and acknowledgment heartily, willingly, and truly, upon the true faith of a Chris- tian, So help me God." The oath itself was abolished in 1688 by the Bill of Eights (i W. & M., sess. 2, cap. i, sect. 3) ; but the final words, now for the first time introduced, were retained in other forms of oaths and declarations and, as will be hereafter shown, for a long time proved an insur- mountable obstacle to the Jews in their struggle for the acquisition of political rights^. The Acts contain other sections also which were not confined to Popish recusants ; ■ Four years afterwards provision was made for more effectually administering this oath to persons neither indicted nor convicted of recusancy. See 7 Jac. I, cap. 6. THE JEWS AND THE ENGLISH LAW 77 e. g., sects. 8 and 1 1 of the former enable the crown to refuse the penalty of twenty pounds a month for not attending church imposed by the statute of Elizabeth, and to seize and retain two-thirds of all the lands belonging to the offender, even although no default had been made in the payment of the penalty or the amount had been actually tendered. And by sects. 3 to 5 of the latter all persons with certain exceptions, who had not repaired to church for the space of three months, were ordered to depart from the city of London and ten miles compass of the same ; and by sect. 8 of the same Act convicted recu- sants were disabled from holding legal, military, or naval offices, and from practising the professions of the law and medicine. Moreover, to prevent evasion of these penalties and disabihties by merely formal attendance at church, it was enacted that a recusant who conformed and repaired to church should also be required to take the sacrament of the Lord's Supper once at least every year. Such was the legislation against recusants, which was not finally repealed until the middle of the last century ^. We are now able to sum up the legal position in which Jews, in the early years of Charles I's reign, when they undoubtedly began to settle here, would find themselves. There was no law to prevent their coming here. If the banishment in 1290 had been efiected by royal proclama- tion, the force of that proclamation had long been spent ; if on the other hand it had been by Act of Parliament, as many persons at that time believed, the Act itself had long been lost, and any Jew for whose expulsion legal process might be brought could challenge his adversary to produce the Act. If this initial difficulty had been got over and the court had been induced by reasoning similar to Prynne's that there must have been such an Act of Parliament and that it was lost, then it would remain to ' 7 & 8 Vict. cap. 102 repealed most of the penal enactments so far as Roman Catholics were concerned ; 9 & 10 Vict. cap. 59 repealed the remaining penal enactments, including those against Jews. 78 THE JEWS AND THE ENGLISH LAW consider what effect that would have upon Jews coming to England in the reign of King Charles. The fii'st prece- dent cited by Prynne is the Act banishing the Despensers, and it would have been necessary to assume, as Prynne does, that the Act banishing the Jews was in similar terms. The enacting words of that statute are as follows : " Wherefore we Peers of the Land ... do award that Sir Hugh le Despenser the Son and Sir Hugh le Despenser the Father, be disherited for ever . . . and that they be utterly exiled out of the land of England, without returning at any time, unless it be by the Assent of our Lord the King and by the Assent of the Prelates, Earls and Barons, and that in Parliament duly summoned . . . and if they do return, then be it done unto them, as enemies of the Eang and of the Kingdom^." Substitute the words " Jews in England " for the words " Sir Hugh le Despenser the Son and Sir Hugh le Despenser the Father" and it is seen at once that the Act would apply only to the persons actually banished, for there are no words to include heirs, issue, or children; but even if such words were embodied in the Act. it would have been quite impossible to prove that a Spanish Jew living in the seventeenth century was an heir, descendant, or in any wise connected with the English Jews, all of them of German origin, of the thirteenth century. The residence of Jews in England was therefore lawful, but they would of course be subject to all the laws which bound aliens living here ; though they would not be liable to the disabilities imposed on the Judaei by the legislation of Heni-y HI and Edward I, because the special status of serfdom or villenage to which those disabUities had been attached, though not legally abolished, had prac- tically become obsolete. On the other hand, if they attempted to practise their religion they were liable to be charged with heresy in the ecclesiastical courts or to be summoned and persecuted by the Court of High Commis- sion ; in any case the common law would compel them to ' statutes of the Realm, vol. I, p. 184. THE JEWS AND THE ENGLISH LAW 79 regularly take part in the services of a church, which they believed to be idolatrous. If they neglected to attend they were subject to severe penalties, and if in addition they took part in a Jewish service they could be made to abjure the realm, and should they still remain here they were guilty of felony and denied all benefit of clergy. Thus the j real impediments to a Jewish settlement were the impossi-' bility of setting up a Jewish synagogue and the necessity , of taking part in the religion of the established church. The first of these obstacles was not removed until the reign of Charles 11 ; we will now explain how the second was obviated in the time of that king's father. Before the commencement of the seventeenth century, it had become customary for the monarchs of Europe to main- tain legations in each other's capitals, and these legations were, by the principles of international law, which were even at this time beginning to be recognized, regarded as exterritorial — i.e. as not subject to the ordinary law of the land. Accordingly the law of heresy and the statutes against recusants would not apply to persons attached to any foreign embassy, but they would apply to all other foreigners coming to this country. Therefore on the marriage of Charles I with Henrietta Maria elaborate provision was made by treaty for the religion of the queen and her suite. However, in the treaty made with Spain in the year 1630 a clause was inserted which was interpreted as entitling all Spanish subjects, though not belonging to the embassy, to exemption from the penal laws against recusants. In express words the King of Spain undertook that subjects of the King of England who might be in his dominions for the purposes of com- merce should not sufier any molestation or disturbance on account of their religion, provided that they gave no occa- sion for scandal. No similar promise was made by the King of England in respect of Spanish merchants, but the reason for this was that there were very few likely to remain here for more than one month and so render them- 8o THE JEWS AND THE ENGLISH LAW selves liable to the laws against recusants, and it was well understood that the promise was reciprocal and that it would not be fulfilled unless a like measure of toleration was extended to Spanish subjects in England^. It was shortly after the signature of this treaty that a few Jews ventured to permanently settle in England, but they came not as Jews but as Spaniards, and sheltering themselves under the protection of the treaty were able to avoid taking part in the services of the English church. They were crypto-Jews and thought by all their neighbours to be Catholics, and no doubt occasionally attended mass at the ambassador's chapel, in order to ingratiate them- selves with the embassy. Some had fled from Spain through fear of the Inquisition, but there is no evidence of any kind that they ever attempted to practise the Jewish religion here, and as it was necessary to keep on friendly terms with the representative of the Catholic king they were not likely to do anything to forfeit his protection. Among the earliest of these new comers was Antonio Fernandez Carvajal; he must have arrived here in or before the year 1635, long before the Great Rebellion commenced, for in the letters of denization which were granted to him by Cromwell on Aug. 17,1 655, he is described as having " for the space of twentie yeares and upwards ^ The treaty is printed in Kymer's Foedera. The words of clause 19 are : "Et quia iura commercii quae ex pace consequuntur infruetuosa reddi non debent, prout redderentur si subditis Serenissimi Regis Angliae dum eunt et redeunt ad Eegna et Dominia dicti Serenissimi Regis Hispania- rum, et ibi ex causa commercii, vel negotii moram trahunt, eis molestia inferatur ex causa eonscientiae, Ideo ut commercium sit tutum et securum tam in terra quam in mari, dictus Serenissimus Rex Hispaniarum curabit et providebit, ne ex praedicta causa eonscientiae contra iura commercii molestentur et inquietentur, ubi scandalum alii non dederint." Foedera, voL VIII, pt. 3, p. 143 (edition of 1742). In the treaty of 1667, which was renewed by the treaty of Versailles in 1 783, the same clause occurs, but the reciprocal clause is expressed, "and the said King of Great Britain shall likewise provide, for the same reasons, that the subjects of the King of Spain shall not be molested or disturbed for their conscience against the laws of commerce, so long as they give no public scandal or offence." Hertslet's CoUedion of Treaties) vol. 11, p. 152. THE JEWS A>-D THE ENGLISH LAW 8 1 been an Inhabitant in this nation." When he had been here for some years he with other merchant strangers was prosecuted as a recusant, but the Enghsh merchants who had factor's in Spain petitioned the House of Lords to stay the proceedings on the ground that the result of a convic- tion would be that their own factors would be similarly treated in Spain and thereby be compelled either to forsake their religion or abandon the country, which would be a matter of great concernment, as there were above one hundred English subjects resident in Spain for every Spaniard resident here. The petition appears to have been granted and the proceedings stayed ^. Whether the other merchants attacked at the same time as Carvajal were also Jews we do not know, but we do know from the depositions in the Robles case that there were at this time several other Jews in London who were or professed to be Spaniards and therefore obtained immunity from the penalties imposed upon recusants. It is important not to exaggerate this indulgence ; it did not extend to the toleration of any sort of Jewish worship and it was itself withdrawn by the outbreak of the war with Spain in 1655. This position could not have been satisfactory to the Jewish communities abroad. If they knew of the existence of and held communication with the crypto-Jews here^ they must have seen that the situation of their brethren in England was little if at all better than that of the Marranos in Spain ; they were bound to take part week by week in the idolatrous worship of the Protestant church or else to obtain the protection of the Spanish embassy, as the price of which they would have to be occasionally present at the no less objectionable Catholic mass, and furthermore to completely disguise their Jewish faith even to the extent of refraining from entering into the covenant of Abraham. ' For the petition see Lords^ Journals, voL Vil, p. 141. It was presented Jan. 16, i64f. For Carrajal see "The First English Jew," by Lacieu WoLf, Trans. Jewish Eist. Soc., vol. II, pp. 14-46. a 82 THE JEWS AND THE ENGLISH LAW In neither case could they meet for worship according to Jewish rites. The establishment of a synagogue or the organization of a community was impossible, and even private prayers could only be indulged in under the cover of the strictest secrecy. At length a brighter prospect seemed to open out; the Great Rebellion had broken out and proved successful, and the Protestant Dissenters who had formerly inveighed against the persecution of the church and advocated universal toleration were invested with the powers of government. And yet in the moment of their triumph they forgot or repudiated the precepts and maxims which had been so dear to them in. the hour of persecution. True it is that the law against heresy was practically repealed by the abolition of the Court of High Commission and the power of temporal punishment formerly exercised by the ecclesiastical courts, but the Parhament claimed the right to itself take cognizance of offences against religion, and in the assertion of this claim, which was not abandoned until the Restoration, inflicted penalties even more severe than those formerly imposed by the Court of High Com- mission^. It was only with exceptional cases that it could itself deal, and accordingly in May, 1648, it made an Ordinance for punishing Blasphemies and Heresies. The ordinance enumerates eight distinct heresies or errors (including, for example, maintaining that Jesus Christ is not the Son of God and that the New Testament is not the word of God), and provides that persons found guilty of any of them, unless they recant and abjure their errors, shall suffer the pains of death as in case of felony, without benefit of clergy ; if they recant they are to be imprisoned until they find sureties against a repetition of the offence, but if they repeat the offence after having recanted they are to suffer death as in case of felony without benefit of * See the case of Paul- Best, who had asserted that Christ was merely and properly a man (Goodwin, II, pp. 252 seq.), and James Nayler (5 State Trials, 801). THE JEWS AND THE ENGLISH LAW 83 clergy. The ordinance also enumerates other errors, which are to be visited with less severe penalties ^. The laws against recusants were not interfered with, but the church services at which attendance was compulsory were to be conducted in accordance with the new Service-book, called the Directory, which had recently been framed by the Westminster Divines ; and two ordinances were passed, one in March, 1645, providing that " the Book of Common Prayer shall not be henceforth used, but the Directory for Publique Worship," and the other on the 23rd of August of the same year ordering " the Directorie to be put in execution with penalties for using the book of Common Prayer^." The penalties were five pounds for the fii-st offence, ten pounds for the second ofience, and for the third ofience " one whole year's imprisonment without bail or mainprize." These ordinances gave great satisfaction to the Presbyterians who possessed a majority in the Long Parliament, and who, having destroyed the power of the church were eager to establish their own form of worship and invest themselves with all the powers of the church they had supplanted, including the right to persecute all who held religious opinions difierent from their own. But this the Inde- pendents, who besides having a strong minority in the House, had the preponderating voice in the council of the army, which in those troublous times really governed the land, were bound to dispute. After a prolonged struggle the Independents gained the upper hand, and on December 6, 1648, succeeded with the help of the army in excluding their Presbyterian opponents from aU share in the deliberations of the Parliament and the government of the nation. Again the party which had stood for toleration was successful, and the Jews who had long cast anxious eyes upon the growing commerce of England and desired to share it, were not slow to take advantage of so favourable an opportunity. The Council of Mechanics at ' Scobell, part i, p. 149. ' Scobell, part 2, pp. 75 and 97. G 2 84 THE JEWS AND THE ENGLISH LAW Whitehall had at the end of December voted a toleration of all religions whatsoever, "not excepting Turkea nor Papists nor Jews '." A petition on their behalf was prepared by the Jews of Amsterdam; it was in the name of Johanna Cartwright a widow, and Ebenezer her son, fi-eeborn of England, and resident in the city of Amsterdamj and prayed that the Statute of Banishment made against the Jews might be repealed and that they under the Christian banner of chai'ity and brotherly love, might "be again received and permitted to trade and dwell in this Land as now they do in the Netherlands." The petition was presented to the General Council of the Officers of the Army, under the command of Lord Fairfax, at Whitehall on January 5, 164!, and favourably received with a promise to take it into speedy consideration "when the present more public affairs " were dispatched ^. The present more public affaii's were the trial and execution of the king and the settlement of the government, and proved to be of such momentous concern that the petition of the Jews was completely overlooked ; at least nothing was done upon it nor was the law altered or relaxed in their favour. And yet a belief was spread abroad that the petition had been granted. A circular was published by the disappointed and defeated Presbyterians entitled " the last damnable Designe of Cromwell and Ireton and their Junto or CabaU," in which it is stated that " their real designe is to plunder and disarme the City of London and all the country round about . . . and so sell it (the plunder) in bulk to the Jews, ' Pragmaticus, Dec. 19-36. The Council of War had also on Christmas Day voted " a Toleration of all religions." History of the Independenq/, part 2, p. 50. ' The petition was printed and there is a copy of it in the British Museum, King's Pamphlets, £557, Art. 17, and is reprinted in Hag., Ck»is. Cases, Tol. I, Ap. No. i. For the whole transaction see the Clarke Papers, vol. II, p. 172 ; nistory of the Independency, part 2, pp. 60 and 83 ; and "A Perfect Diurnall of some passages in Parliament and the daily proceedings of the Army under His Excellency the Lord Fairfax, from Munday the i of Janu. till Monday the 8 of Janu. 1648." THE JEWS AND THE ENGLISH LAW 85 whom they have lately admitted to set up their banks and magazines of Trade amongst us contrary to an Act of Parliament for their banishment^." Nor was this belief confined to the political opponents of the dominant faction here, for in the collection of original letters found among the Duke of Ormonde's papers is to be found the following : — ■ Kouen, March ||, 164 " This morning I happened to have some discourse with a Jew that spake English, and asking him how he liked the Parliament and Army of England^ now they had revoked the Laws that were made against the Jews ; he told me, that nevertheless he thought that there were no such villains in the world as they are, and believed that none of his Religion would ever adventure themselves among such bloody traitors as had murdered their own King^." But yet no one at the present time would seriously argue that the readmission of the Jews into England dates from January^ 1649, '^or should we give more weight to similar expressions which seem to indicate a successful issue to the negotiations conducted by Menasseh Ben Israel some six or seven years later, which in the end proved equally abortive. The ascendency of the Independents lasted till the death of Cromwell in 1658, but during the whole of it, the law was in no way altered to the advantage of the Jews. True, a milder ordinance was passed for the punishment of atheistical, blasphemous and execrable opinions ; as for instance maintaining that there is neither heaven nor hell, neither salvation nor damnation, the penalty being six months imprisonment for the first ofience and banishment for the second, and if any one returned after being banished he was to suflfer as in case of felony without benefit of clergy ^. This ordinance^ cruel as it is, is milder than the one passed by the Presbyierians in May, 1684, ' History of the Independency [4i;o, 1649], at p. 61. ' Ormonde's Letters, vol. I, p. 233- ' See the ordinance of Aug. , 1650, cap. 22, given in Scobell, II, p. 124. 86 THE JEWS AND THE ENGLISH LAW for the extreme penalty could only be inflicted in the case of a second offence, but the earlier ordinance was not repealed, and as the offences enumerated by the two enact- ments were different, both were technically in force at the same time. The advocates of toleration thi-oughout the period of their power showed no disposition to abandon the weapons of persecution : Et qui nolunt occidere quenquam Posse volunt. It may be said on their behalf that the earlier and more cruel ordinance was never put into execution by them, but on the other hand there is no record of its having been enforced by the Presbyterians either, and the later ordinance was undoubtedly acted upon ; the proceedings against George Fox, the Quaker, being a well-known instance ^. Though the Independents did not repeal the law relating to blasphemy, they found it necessary to materially amend the laws against recusants. In spite of having obtained the supreme power, they formed, if numbers only were counted, a small if not insignificant minority of the general population. They had as strong objections to the new Directory as to the old Book of Common Prayer, nor could they hope to establish any form of worship which should be both consonant to their own religious ideas and acquiesced in by the other rival sects. Accordingly, shortly after the victory of Dunbar the Parliament passed an Act for the repeal of several clauses in Statutes imposing penalties for not coming to church. It recites that " divers religious and peaceable people, well-affected to the pros- perity of the Commonwealth, have not only been molested and imprisoned, but also brought into danger of abjuring their country, or in case. of return to sufier death as felons, to the great disquiet and utter ruin of such good and godly people, and to the detriment of the Commonwealth," and repeals all clauses of the Act of Uniformity (i Eliz, cap. a), ' Goodwin, vol. IV, p. 309. THE JEWS AND THE ENGLISH LAW 78 and the Acts for retaining the Queen's subjects in their due obedience (35 Eliz. cap. i, and 23 Eliz. cap. i), and all clauses in any other Act whereby any penalty is imposed on any person whatsoever, for not repairing to their respective parish churches. But the exemption from penalties was subject to this^ proviso, that " to the end that no profane or licentious persons may take occasion ... to neglect the performance of religious duties ... all and every person and persons within this Commonwealth . . . shall (having no reasonable excuse for their absence) upon every Lord's day . . . diligently resort to some public place where the service and worship of God is exercised, or shall be present at some other place in the practice of some religious duty, either of prayer, preaching, reading, or expounding the scriptures or conferring upon the same^." Every person not so attending was to be deemed to be an offender against the law and proceeded against accordingly. This proviso would prevent any real measure of relief to the Jews, for attendance at a synagogue, if there had been one in existence, would assuredly not have been held to be a compliance with the Act. Should there be any doubt upon this point, it is cleared away by the religious clauses of the Instrument of Government; the document under which Oliver claimed to exercise his power as Lord Protector. The terms of the Listrument were finally settled before December 16, 1653, on which date it came into force. The clauses relating to religion are Articles 35, ^6, and ^y, and provide that the Christian religion shall be publicly professed, but that to this public profession none shall be compelled by penalties or otherwise, and all who professed faith in God by Jesus Christ (though differing from the doctrine publicly held forth) should be protected in the profession and exercise of their religion " so as they abuse not this liberty to the civil injury of others and to the actual disturbance of the public peace on their parts, provided this liberty be not extended to Popery or Prelacy, » Ordinance of Sept. 27, 1650; Scobell, 11, p. 131. 88 THE JEWS AND THE ENGLISH LAW nor to such as under the profession of Christ, hold forth and practise licentiousness^." If one thing is certain among the doubts occasioned by the hasty and manifold changes of law which took place during this revolutionary period, it is that freedom of worship was not extended even to all Christian sects ; indeed, the majority, as events afterwards proved, were expressly excluded from protection by the last recited article, and no form of worship not in accordance with Christian dogma was at any time legal or authorized throughout the whole period. Nevertheless, the Jews, encouraged by the reception their overtures had met with in the early part of 1649, had not given up their hopes. The Navigation Act which became law on October 9, 1651 ^, caused such friction between England and the Dutch against whose carrying trade it was principally directed, that war between the two nations became almost inevitable, and actually broke out. While the war lasted the negotiations which had been carried on from Amsterdam were naturally suspended. In the month of April, 1654, peace was again proclaimed, and the nego- tiations were almost immediately resumed. Manuel Martinez Dormido, a member of the well-known family of the Abarbanels, arrived in London early in September, and presented to the Protector two petitions for the readmission of the Jews. These were in due course recommended to the speedy consideration of the Council, but they met with the reception which throughout the interregnum was accorded to all attempts to relax the law in favour of the Jews ; the Coimcil did not see its way to make any order in the matter ^. But the cause was not yet hopeless ; in the October of the year following, Menasseh ben Israel, brother- ' Gardiner's Constitutional Documents, p. 324. ' Scobell, II, p. 176. ' See Cat. State Papers, 1654, pp. 393 and 407 ; Goodwin, IV, p. 47, note ; Trans. Jewish Hist. Soc, vol. Ill, where the text of the petitions is given at pp. 88-93. THE JEWS AND THE ENGLISH LAW 89 in-law to Dormido, and a learned Rabbi, came from Amsterdam to London, and was hospitably received by the Protector; who was willing to admit the Jews and even tolerate their worship, if conducted privately and without scandal, but who was at the same time determined not to risk a popular tumult which might not improbably break out if protection was extended to a strange religion without the previous sanction and approbation of the leaders of the people. It was with this view that a conference was summoned to meet at Whitehall to discuss the question. So much has recently been written about the conference and the events which led to it, that it Avill be sufficient here to extract from the old Parliamentary History the Narrative published by order of Cromwell and his Council ^. " Whitehall, December 4. " Divers eminent Ministers of the Nation, having been called hither by Letter from the Lord Protector, were present with his Highness and the Council in the Council- Chamber ; when the following Proposals, made by certain Jews, of whom Eabbi Menasseh Ben Israel, of Amsterdam, was the Chief, were read to them. " ' These are the Graces and Favours which, in the Name of my Hebrew Nation, I Menasseh Ben Israel do request of your Most Serene Highness, whom God make prosperous, and give happy Success to, in all your Enterprises, as your humble Servant doth wish and desii-e. " ' I. The first Thing I desii-e of your Highness is. That our Hebrew Nation may be received and admitted into this puissant Commonwealth, under the Protection and Safe- guard of your Highness even as the Natives themselves. And, for greater Security in Time to come, I do supplicate your Highness to cause an Oath to be given (if you shall think it fit) to all the Heads and Generals of Arms to defend us upon all Occasions. ^ Printed by Henry Hills, printer to His Highness the Lord Protector. Pari. Hist, vol. XX, p. 474. go THE JEWS AND THE ENGLISH LAW " ' a. That it will please your Highness to allow us public Synagogues, not only in England, but also in all other Places under the Power of your Highness ; and to observe in all Things our Religion, as we ought. " ' 3. That we may have a Place or Coemitery, out of the Town, to bury our Dead, without being troubled by any. " ' 4. That we may be permitted to traffic freely in all Sorts of Merchandise, as others. " ' 5. That (to the end those who shall come may be for the utility of the People of this Nation, and may live with- out bringing Prejudice to any, and not give Offence) your Most Serene Highness will make Choice of a Person of Quality, to inform himself of and receive the Passports of those who shall come in ; who, upon their Arrival, shall certify him thereof, and oblige themselves, by Oath, to maintain Fealty to your Highness in this Land. " ' 6. And (to the Intent they may not be troublesome to the Judges of the Land, touching the Contests and Differ- ences that may arise betwixt those of our Nation) that your Most Serene Highness will give License to the Head of the Synagogue, to take with him two Almoners of his Nation to accord and determine aU the Differences and Process, conformable to the Mosaic Law; with Liberty, nevertheless, to appeal from their Sentence to the Civil Judges ; the Sum wherein the Parties shall be condemned being first deposited. "' 7. That in case there have been any Laws against our Jewish Nation, they may, in the first Place and before all Things, be revoked ; to the end that, by this Means, we may remain with the greater Security under the Safeguard and Protection of your Most Serene Highness. " ' Which things your Most Serene Highness granting to us, we shall always remain most affectionately obliged to pray to God for the Prosperity of your Highness, and of your illustrious and sage Council, that it will please him to give happy Success to all the undertakings of your Most Serene Highness. Amen.' THE JEWS AND THE ENGLISH LAW 9 1 "The Ministers having heard these Proposals read, desired Time to consider of them, and the next Day was spent in Prayer and Fasting. "Dec. 7. This Day, in the Afternoon, a Conference was held with the Ministers about these Proposals, in the Presence of his Highness the Lord Protector, the Lord President Lawrence, Lord Lambert, Lord Fiennes, and divers more of the Council, with the Lord Chief Justice Glynn, and the Lord Chief Baron Steel. Of the Ministers there were Dr. Thomas Goodwin, Dr. Wilkinson, Dr. Tuck- ney, Mr. Manton, Mr. Nye, Mr. Bridge, and many others ; but nothing being concluded on, another Conference was appointed to be held on the next Wednesday. Accord- ingly. "Dec. 13. The Conference was renewed in a Withdrawing Eoom in the Presence of the Lord Protector, where a Committee of the Council were met by the greatest Part of the Ministers and other Persons, approved by his Highness to take the said Proposals into Consideration; but nothing then resolved upon. "Dec. 14. There was another Conference on the same Subject. And, "Dec. 18. The Committee broke up without coming to any Resolution or even a further Adjournment.' " The Narrative concludes with this Remark, ' That his Highness, at these several Meetings, fully heard the Opinions of the Ministers touching the said Proposals ; expressing himself thereupon with Indifference and Modex-a- tion, as one that desired only to obtain Satisfaction in a Matter of so high and religious a Concernment; there being many glorious Promises recorded in Holy Scripture, concerning the Calling and Convention of the Jews to the Faith of Christ. But the Reason why nothing was con- cluded upon was, because his Highness proceeded in this, as in all other Affairs, with good Advice and mature Deliberation.' " g2 THE JZTTS A>'P THE ENGLISH LAW Tliiis the iV.rJor.s Conference res-jlr-nl, like all the auenirTi irisde during the interregnum, in nothinir being done and no alteration in the hiw being made ; Croni'well's good-vrill \ra5 not proof against the prejudice which wa5 displayed at the Conference and which wa5 rampant amon^ the mob ontsiie. ^i^or did the Lord Protector, actuated as he was at this time by the motives of the astute politician rather than by the feelings of the religious enthusiast, care to press the cause of religious toler:ition in the teeth of popular opposition : and yet he did not give the petitioners a formal dismissal. And so Eabbi ilenasseh remained in London, but with far diiferent hopes to those he cherished on his first arrival. On ilarch 24. of the following year he again t<>ok part with six other Jews in presenting a petition to the Protector. The boons prayed for by the petitioners were now very small : they were two only, (i) protection in writing for meeting privately in their own houses for pturposes of devotion ; (2) a license to bury their dead in a convenient place withotit the city. But even this petition was not granted. It was referred to the consideration of the Cotincil and no answer was ever rettimed to it. A few days later, on April ic, Menasseh published his Vindiciae ludaiwur,. his last etiort to gain the cause he had come to plead. Speaking of the Conference he says : '• ilens judgements and sentences were diiferent. Insomuch, that as yet. we have had no finall determination from his Serene Highnesse. "Wliere- fore those few Jewes that were here, despairin;; of otir expected successe. departed hence. And others who desired to come hither, have quitted their hopes, and betaken themselves some to Italy, some to Geneva, where that Commonwealth hath at this time most freelv granted them many and great priviledges ^." But ilenasseh, though his Vind'uiae effected nothing, though no response came to his second petition with its very humble prayer, still ' Vir^iiciae ludjicnim , the serenth section. THE JEWS AND THE ENGLISH LAW 93 stayed behind at his post, hoping against hope. In September, 1657, his son Samuel died in his house, and the pious father having solemnly promised to take his mortal remains to Holland and lay them to rest in conse- crated soil there, " at length with his heart ever broken with giiefe on losing heer his only sonne and his presious time with all his hopes in this iland he got away with so much breath as lasted, till he came to Midleburg and then he dyed^." His mission had proved an utter failui-e. ' Petition of John Sadler to Richard Cromwell (S. P. Dom. Inter., cc. 8), and Petition from Menasseh to Oliver, Sept. 17, 1657 (S. P. Dom. Inter., clvi. 8g), both printed in Wolfs Menasseh Ben Israel's Mission to Oliver Cromvxll, p. Ixxxvii. 94 THE JEWS AND THE ENGLISH LAW V. Menasseh Ben Israel's mission had failed. The Con- ference summoned to consider his proposals had broken up without coming to any resolution ; the petition presented in the following spring had received no answer, and at length, after waiting two years, the great Rabbi had returned to his home and friends, giving up the cause for lost. But the publicity given to the mission and the hopes founded upon it were such that many undoubtedly believed that it had met with some measure of success. There are accordingly some few references in contemporary literature to favours conferred upon the Jews by Cromwell. It is probable that all of these refer to the Conference at Whitehall in December, 1655, and there is little doubt that, owing to the attitude that Cromwell had adopted towards Menasseh both before and at the Conference, the impression had got abroad that special privileges had been formally accorded to the Jews. It was to officially contradict this widespread impression that the narrative set out at full length in the last article was published by order of Cromwell and his Council. It would serve no useful purpose to enumerate or comment on all the statements made by the writers of the period, but it will be sufficient to mention the most explicit of them all. John Evelyn writes in his Memoirs, December 14, 1655, "Now were the Jews admitted'." This must allude to the Conference, for if we turn to the official narrative we find that this was ' Evelyn's Memoirs, vol. I, p. a88 (ist edition). THE JEWS AND THE ENGLISH LAW 95 the day of the penultimate meeting of the Conference, but we also find that the diarist's statement is untrue, and that no resolution on this or any other point raised at the Conference was ever reached. Nor can there be any reason for casting doubt upon the statement in the official narrative, for it is amply corroborated by Menasseh himself in his Vindiciae ludaeorum''-. In fact the negotiations of 1655 to 1656 had resulted in precisely the same way as those of seven years earlier, and the statements made in regard to them are entitled to no more weight than those which have already been referred to in dealing with the earlier period. It is, moreover, somewhat remarkable that the learned Dr. Haggard ^ omits all mention of Menasseh and the Conference in his concise but accurate account of this subject. He does, however, allude to the petition of 1648, and it may well be that he regarded Menasseh's mission and the earlier petition as really being only one continuous effi)rt spread over a lengthy period ; if such was his view it seems to have been shared by Menasseh him- self, who, writing on April 10, 1656, says : " For seven yeares on this behalf, I have endeavoured, and solicited it" (namely an entrance into this Island for the Jews), " by letters, and other means, without any intervall '." In any case it would at the present time be almost universally admitted that Dr. Haggard's words, "The question was much agitated, but nothing was done," apply with equal truth to the earlier petition and the great Rabbi's mission seven years later. During our own and our fathers' times a great change has taken place in the opinions men have formed of Cromwell's character and his place in the history of his country. It was at one time the fashion to write him down a self-seeking hypocrite ; but thanks to the powerful advocacy of Thomas Carlyle and other writers contemporary with and subsequent to Carlyle, he has become a great ' See the seventh section. " Cons. Cos., vol. I, p. si6. ' Vindiciae ludaeorum, sec. 7. 96 THE JEWS AND THE ENGLISH LA.W statesman, nay, a hero. In 1841, when this change of view was still in the process of birth, Carlyle wrote of Cromwell : " His dead body was hung in chains ; his ' place in History' — place in History, forsooth — has been a place of ignominy, accusation, blackness and disgrace; and here this day who knows if it is not rash in me to be among the first that ever ventured to pronounce him not a knave and liar, but a genuinely honest man ^ ? " And so in the course of the apotheosis of the great Oliver, his virtue as an upholder of Religious Toleration has been much dilated upon ; and his conduct towards the Jews has been selected as one instance of it. But it should not be forgotten that by the men of his own time Toleration, in those who held the reins of government, was regarded as a vice rather than a virtue ; and accordingly it was not his supporters, but his political opponents, such as Walker, Evelyn, and Burnet, who laid most stress on the favours he was alleged to have shown to the Jews. Before he had risen to supreme power, he had been a staunch upholder of liberty of con- science, but once he had become head of the state he was too wise to attempt to carry out measures which he knew would create violent opposition among those on whose support his influence depended. As he himself said : " This hath been one of the vanities of our contest. Every sect saith, ' Oh give me liberty ! ' but give it him, and to his power he will not yield it to anybody else ^." Accordingly, when the time for its actual application came, Cromwell was constrained to allow Kberty of conscience only within the very narrowest limits ; for instance, in dealing with the Irish Catholics he did not force them to attend Protestant churches, but he refused to allow them to hold public worship according to their own rites. " I meddle not with any man's conscience," he wrote to the Governor of Ross ; "but if by liberty of conscience you mean a liberty to exercise the mass, I judge it best to exercise plain dealing ' Carlyle, on Heroes, p. 335. ° Oliver Oromwell, by Charles Firth, p. 306. THE JEWS AND THE ENGLISH LAW 97 and to let you know, where the Parliament of England have power that will not be allowed of ^." As head of the executive he might forbear to rigidly enforce the laws making attendance at church compulsory, but there is no reliable evidence that he at any time allowed forms of worship contrary to the Protestant religion, and there- fore, in breach of the law of the land, to be publicly celebrated. Our English historians have taken Cromwell's hospitable treatment of Menasseh and his summoning of the White- hall Conference as examples of his Toleration, but all admit that in this instance no practical effect was given to it. Some few writers assert that, though the Conference was a failure, the Protector subsequently formally gave the Jews a legal right of settlement in the country, and permitted them to establish a synagogue here. A state- ment to this effect was made by Godwin ^, and of recent years much has been written by Jewish writers, and especially by Mr. Lucien Wolf, attempting to prove this statement. Some of the last-mentioned writer's theories are so widely known and have been so skilfully put forward as to call for some comment here. The first of these theories is to the effect that a "tolerance" in the shape of a " public assurance of protection " was granted to the Jews by Cromwell on February 4, 1658. The authority for this is a passage in Burton's Diary, under the above- mentioned date, which reads as follows : " The Jews, those able and general intelligencers, whose intercourse with the Continent Cromwell had before turned to a profitable account, he now conciliated by a seasonable benefaction to their principal agent resident in England ^." The author- ship of Burton's Diary is very doubtful, nor is the work, especially these parts of it which are not reports of speeches suppcsed to have been taken do-wn in the House * Oliver Cromwell, by Charles Firth, p. 267. " History of the Commmwealth, vol. lY, c. ivii, p. 250. • Burtojc's Diary, vol. II, p. '^^l. H 98 THE JEWS AND THE ENGLISH LAW of Commons, of any great authority. Moreover, to the ordinary reader it seems hardly possible that the words used can be brought to bear the interpretation which is thus sought to be placed upon them. They point only to some personal favour, such as a trade licence or money grant, conferred on an individual ; not to a public declara- tion in favour of a religious body — a matter which would have been considered of great political and constitutional importance, and which would not have been described in language of this kind. Mr. Wolf, however, says of it : "The precise terms of this grant, which was doubtless oral, have not been preserved. But as it was preceded by the endeniza- tion of Carvajal, in defiance of the recommendation of the Council that the Jews should only be permitted the standing of ordinary aliens, and as it was succeeded by the public celebration of the Feast of Tabernacles, we may assume that it was a kind of informal fays ce que voudras, the Protector relying on the tried discretion of the Jews ^" This passage contains two mistakes; in the first place, if the Council even did make a recommendation, about which more will be said hereafter, Carvajal's endenization was not in defiance of it, because the letters patent were granted to Carvajal on August 17, 1655^: whereas the petition of Menasseh Ben Israel, in answer to which the alleged recommendation of the Council is supposed to have been made, was not presented until October in that year. In the second place, this event, whatever its nature, was not succeeded by the public celebration of the Feast of Tabernacles. The authority for this statement is a passage in a letter by Mr. Jo. Greenhalgh, dated April 22, 1662, in which he says, after describing a visit to the Jewish Synagogue, that he had been told that "one year in Oliver's time they did build booths on the- other side of Thames, and kept the Feast of Tabernacles in them." Even if such evidence is accepted implicitly, ,the celebration * The Resettlement of the Jews in England, by Lucien Wolf, p. 12. ' Transactions of the Jeicish Historical Socieiu, vol. 11 , p. 46. THE JEWS AND THE ENGLISH LAW 99 mentioned could not have taken place after February 4, 1658, for Cromwell died on September 3 following — a con- siderable time before the date for celebrating the Feast of Tabernacles had come round '. Mr. Wolf further supports his theory by a reference to Thomas Violet's Petition against the Jews presented to the King and Houses of Parliament in December, 1660. On turning to the docu- ment cited we find that the writer is speaking of Menasseh's Petition and the Whitehall Conference; his words are: " Upon several days hearing, Cromwel and his Council did give a Toleration and Dispensation to a great number of Jewes to come and live here in London," &c.^ The state- ment, whether we regard it as true or untrue, is seen at once on perusing the context beyond all question to refer to the events of December, 1655, and can have no bearing whatsoever upon an alleged grant of Toleration in February, 1658, more than two years afterwards. The theory itself rests upon no sufficient evidence, and the statements which are put forward as corroborating it are either wholly irrelevant or absolutely inconsistent with it ; the excuse for dealing with it at such length must be that for a number of years a learned society claiming an important place in the Jewish community has held a public dinner in the early days of February to celebrate what it has been pleased to call " Resettlement Day." The dinner was announced in 1900, but not held, owing to the death of Queen Victoria; it was not revived during the present year, possibly because the organizers have discovered the futihty of attempting to create an anniver- sary for which there is no historical justification. The next theory is, that though the Conference effected 1 If this celebration ever took place, it would probably be in the autumn of 1655, when the question of readmission had not yet been discussed by the Whitehall Conference and was therefore still sub judice. If it was before Menasseh had completed his journey to London, the building cf the booths on the other side of Thames would be explained. " Violet's Petition against the Jews, p. a. H a lOO THE JEWS AND THE ENGLISH LAW nothing, the Committee of the Council of State which had been appointed to consider Menasseh's Petition, subsequently- reported in favour of admitting the Jews, subject to certain limitations and restrictions. There is no sufficient evidence that such a report was ever made. It is certain that there was no formal report, for there is no notice of one in the Council Order Book. There is, however, an unsigned paper in the state archives, which Dr. Gardiner regards as a resolution agreed on by the Committee but never presented to the Council, but which Mr. Neal calls a report of the answers pro and con, given in the Council when the question was debated. From a careful perusal of the docu- ment, the latter seems to me the better view, and it is here subjoined as read in that light, the words in brackets not being in the original. [Proposal] "That the Jews deservinge it may be admitted into this nation to trade and trafficke and dwel amongst us as providence shall give occasion." [The answer of those that were against it, was, that they could not think it lawful, for the reasons marked with Arabic numerals. Those who were of a contrary opinion said] "That as to poynt of conscience we judge lawfull for the magistrate to admit in case such materiall and weighty considerations as hereafter follow be provided for, about which till we are satisfyed we cannot but in conscience suspend our resolution in this case. " I. That the motives and grounds upon which Menasseh Ben Israel in behalfe of the rest of his Nation in his booke lately printed in this English tongue desireth their admission in this commonwealth are such as we conceive to be very sinfull for this or any Christian state to receave them upon. " a. That the danger of seducinge the people of this nation by their admission in matters of religion is very great. "3. That their havinge of synagogues or any publicke meetings for the exercise of their worship or religion is THE JEWS AND THE ENGLISH LAW lOI not only evill in itselfe, but likewise very scandalous to other Christian churches. "4. That their customes and practises concerning mar- riage and divorce are unlawfull and will be of very evill example amongst us. "5. That principles of not makinge concience of oathes made and injuryes done to Christians in life, chastity, goods or good name have bin very notoriously charged upon them by valuable testimony. " 6. That great prejudice is like to arise to the natives of this commonwealth in matter of trade, which besides other dangers here mentioned we find very commonly suggested by the inhabitants of the city of London. " 7. We humbly represent [that they should not be ad- mitted for the above reasons : others represented that they might be admitted subject to the following limitations] ' "I. That they be not admitted to have any publicke Judicatoryes, whether civill or ecclesiasticall, which were to grant them terms beyond the condition of strangers. " II. That they be not admitted eyther to speake or doe anythinge to the defamation or dishonour of the name of our Lord Jesus Christ or of the Christian religion. " III. That they be not permitted to doe any worke or anythinge to the prophanation of the Lord's Day or Chris- tian Sabbath. "IV. That they be not admitted to have Christians to dwell with them as their servants. " V. That they bear no publicke office nor trust in this commonwealth. " VI. That they be not allowed to print anything which in the least opposeth the Christian religion in our language. "VII. That so farre as may be they be not suffered to discourage any of their owne from usinge or applyinge themselves to any which may tend to convince them of their error and turn them to Christianity. And that some 102 THE JEWS AND THE ENGLISH LAW severe penalty be imposed upon them who shall apostatize from Christianity to ludaisme ^." Except as showing the ideas current at the time, the document is of little importance; this cannot be doubted if it is a mere report of the arguments used in the Council or Committee, and even if it is a report, intended to be presented to the Council but never in fact placed before that body, it would not be entitled to any great weight as a constitutional document. Nor would its weight be materially increased if, as there is no reason to believe, it had actually been adopted by the Council of State because the recommendation in favour of the Jews was conditional upon certain matters being first provided for and no such provision was ever during the whole existence of the Com- monwealth Government made or attempted to be made either by the legislature or the executive V Let us now turn to a third theory. It is that, though it cannot be proved that any formal concession was pub- licly made to the Jews, yet the circumstances accompanying the proceedings taken against one Antonio Robles show that the demands made by the Jews had by some secret arrangement been practically granted. To test this theory the proceedings known as the Robles case must be briefly examined. In the spring of 1656 England was at war with Spain, and in accordance with the custom of those times a proclamation had been issued for the seizure of the property of all subjects of the king of Spain that could be found either on the high seas or in the territory of the Commonwealth. In virtue of this proclamation ^ state Papers, Interregnum, ci, No. ii8; Calendar, do. ; Domestic, p. 15 ; Neal's Eistcry of the Puritans, vol. IV, pp. 141, 142 (ed. of 1738). Gardiner's History of the Commonwealth, vol. Ill, p. 219 n. ; Wolf's Resettlement, p. 16 ; and Menasseh Ben Israel, pp. xlv, llv, Iv. ^ If the document itself is looked at, its precise date is of little impor- tance. Mrs. Everett Green, in the Calendar of State Papers, places it about November 13, 1655, and Mr. Wolf's note on p. Iv of his Menasseh Ben Israel seems not to be justified, especially as he himself gives its date as November 13 in his Resettlement of the Jews, p. 11. THE JEWS AND THE ENGLISH LAW 103 an information was laid on March 14, 165I, against Don Antonio Eodrigues Robles, a Spaniard, living in Duke's Place, on the ground that he had lately received a large cargo of wine from the Canaries, and had laden a second ship with woollen goods which he was about to dispatch thither. An order was accordingly made for the arrest and seizure of the said ships and a search of Robles's house, goods and papers. The order was at once executed, and thereupon Eobles addressed a petition to the Protector. He stated that he was a Portuguese born and of the Hebrew nation, and hoped that he might partake of the laws and privileges granted to all merchant strangers the rather that he had resided here many years and paid many thousand pounds for customs, and in all things sub- mitted to the laws of this nation. If any accusation were brought against him he asked to be permitted to answer it legally, and prayed that his goods and papers might be restored to him upon sufficient bail being given to answer the charges made against him. The petition was referred to the consideration of the Council, at whose orders a formal inquiry was held and evidence taken by the Com- missioners for the Admiralty and Navy. According to Robles's own account, which was corrobo- rated by the evidence of several of the principal foreign merchants living in London, he was bom in the kingdom of Portugal in a town called Fundao, and his family by reason of being Jews had been forced to fly from Portugal to Spain, where they were persecuted by the Inquisition, and some were tortured to death, some burnt, and others sent to the galleys, but Robles himself by God's great mercy fled to the Canary Islands, and by the help of a kinsman, who was treasurer under the king of Spain, acquired some estate, which he could not long enjoy; for, having been advised that orders had been sent by the Inquisition to apprehend him as a Jew, he came to England, where he remained some years; but he afterwards went b£ick to the Canaries, where he recovered a portion of his 104 THE JEWS AND THE ENGLISH LAW property and returned with it to England, where he had lived for the last four years. He confessed that he had attended maiss at the Spanish Ambassador's house in London, and that he was not circumcised. Not only was this evidence supported by Robles's friends, but it was hardly impugned by those who had given information against him — namely, John Baptista de Dunnington, a merchant and factor, and Francis Knevett, a clerk and notary of Doctors Commons. The former at his examina- tion said that he had served Robles for eight years, having left his family six months before. That Robles was reputed by some a Portugal, by some a Spaniard ; that his wife came out of Portugal, and spoke a little Spanish. That he heard he was lately turned a Jew, having formerly professed himself a Catholic. When he first came to live with Robles he took him to be a Spaniard. That Robles changed his name when he went to the Canaries (from Fererino to Robles), where the deponent had lived with him about a year. That the treasurer there was cousin to Robles, called Duarto an Rigij (Henriques), who rented the office under the king of Spain, and was then in England, being with his family turned Jews. On further examination, being asked specifically whether Robles was a Spaniard, he said : " I answer that I cannot positively say whether he be or not, for I have heard several reports of him ; some saying he was a Spaniard and others saying he was a Portugal ; but which to believe, I cannot tell. But I did always take him to be a Spaniard." Knevett, who had apparently been very bitter against Robles as being a Jew dog, and had desired Dunnington to swear against him, did not, when himself examined, give very damaging evidence. He said that he believed Robles " to be a Jew, not a Spaniard ; though living in the Canaries he lived as a subject of the king of Spain. That he is a kinsman to one Duarto en Rigis (Henriques) who was treasurer in the Canaries, but is now in England, and lately told the deponent that the king of Spain had seized THE JEWS AND THE ENGLISH LAW I05 his estate in his Dominions on the account of his being a Jew." In this state of the evidence the Commissioners reported to the Council on May 14, that they did not find any convincing evidence to clear up either the nation or re- ligion of the petitioner. Some affirming him to be a Jew born at " fiundam " in Portugal, which they tender to testify upon oath ; others who have known him long, that they always esteemed him a Spaniard, though their testimony seem not so positive as the other ; but all agree that " both in the Canaries, where he was employed under one of the farmers of the king's revenue, and in England he hath professed himself a Romanist, having frequented the mass till about six months since, which with the consideration that he is yet uncircumcised induceth us to conceive he is either no Jew or one that walks imder loose principles very different from others of that profession." However, upon the whole they were unable to return any satisfying opinion upon the business, but humbly submitted the same to the Council's determination. After hearing the report read, the Council, as might have been foreseen, on May 16 ordered that the seizures should be forthwith discharged, and that Robles should be at liberty to dispose of his goods and papers notwith- standing the warrants issued against them ^. The case is undoubtedly of great interest as showing the position of the Jews here at the time of the failure of Menasseh's mission, but it in no way points to any legal recognition having been accorded to them. Robles's pro- perty was only liable to seizure and confiscation if he was a subject of the king of Spain. As soon as the informa- ' state Papers, Domestic, Interregnum, toI. CXXV, 38. i. 76, p. 604. i. 112, p. 289. Do. CXXVI, Council, Day's Proceedings, No. 18. Do. i. 77, P- 38- Do. CXXVI, 66. Nos. 11, 12, 13, 67, 67 i, 67 ii. Do. 105, 105 i-xi. i. 77, pp. 44, 78. Do. CXXVII, 21. Do. Council, Day's Proceedings, Nos. 19, 40. The most important of these documents are printed at length in Mr. Wolf's valuable Appendix to his Orypto-Jews under the Com- monwealth, Transactions Jewish Historical Society, vol. I, p. 77 seq. I06 THE JEWS AND THE ENGLISH LAW tion was laid against him he was ready with his answer, " I am no Spaniard, but was born in Portugal, and am of Jewish parentage." The main diflSculty was to explain how it was that he traded with and had property in the Canaries, and had lived there for some time. This ques- tion was put to the witnesses examined by the Commis- sioners, and answered in the words of one of them, that " the Portugals who took part with the king of Spain were free to live in his territories." The plea of Judaism seems to have been set up to show why the defendant had left Portugal and afterwards the Canaries. Whether suc- cessful or not, it could entail no injury here ; for, as has been already shown, the mere fact of being of Jewish birth or rehgion was no crime provided that the laws against Recusants were complied with, and no part was taken in a rehgious service which contradicted or impugned the accepted doctrines of Christianity. In any case this plea the Commissioners, who were the judges of the fact, found not proven, conceiving the defendant either to be no Jew, or very different from others of that profession : so that if he had relied on that plea alone he must have failed. He was successful because it had not been satis- factorily proved that he was a Spaniard, and the Council rightly acted upon the ancient maxim of the English law, that the burden of proof is upon those who desire to exact a forfeiture. We thus see that, months after the holding of the Whitehall Conference, the position of the Jews remained exactly the same as it had been in the time of Charles I. We see from the evidence that Robles had been settled here before the Commonwealth had been established, and some of the Crypto-Jews had been settled here even longer. Moreover no change took place in the condition of the Jews until after the Restoration. Robles, it was proved by Dunnington, "always kept his moneys at a goldsmith's, whose name is Mr. Backwell, who received it and paid it out according to his order " ; and the Jews of the Restoration still kept their banking accounts at Mr. Alderman Back- THE JEWS AND THE ENGLISH LAW 1 07 well's'. He is also found residing in the same house in Duke's Place in the year of King Charles's return I He could not continue to attend mass at the Spanish Ambas- sador's, for such services would not be held after the out- break of the Spanish War ; but he and his friends if they did not belong to the six Jewish families to which Cromwell is said to have ^ given special privileges, would probably occa- sionally attend at some Protestant place of worship in order to make sure of escaping the pains and penalties of the Acts against Recusants *. Yet another theory claims attention ; it is that Cromwell as Protector gave to John Sadler " a special authorization " to build a synagogue ®. The authority for this statement is a passage in the account of John Sadler in the Birch Manuscripts. The etccount is an ordinary biographical notice, with the facts apparently stated in chronological order, which was furnished to the writer as late as the year 1738 by Sadler's grandson, Thomas Sadler, who was not alive at the time, and could have no knowledge of the facts except by hearsay. The words are " By his interest it was that the Jews obtained the Privilege to build for themselves a Synagogue in London." The words immediately pre- ceding are " He was in high favour with Oliver Cromwell, who by his letter from Cork invited him to take upon him the ojBSice of Chief Justice of Mounster, in Ireland, with a salary of one thousand pounds per annum, which he excused himself from accepting." The letter from Cork, ^ Wolf's Jewry of the Restoration, p. 1 1. ^ See the Mendez da Costa lists now printed in Wolfs Jewry of the Restoration, p. 4. Mr. Wolf is evidently right in fixing the date of these as 1660, but his theory that they were the work of reformers attempting to procure the re-expulsion of the Jews does not seem very probable. The traditional view that they are lists of persons made out preparatory to the regular organization of a community seems better. ' The Question whether a Jew, &c., p. 36 ; and see the Petition of the Jews to the House of Commons against the special tax proposed to be laid upon them in 1689. * See the Ordinance of September 27, 1650, already quoted. ° Wolf's Jewry e Nicholas Papers, rol. Ill, p. 255. I a Il6 THE JEWS AND THE ENGLISH LAW and the Jews, with that prudent caution which they are credited with generally displaying in money matter's, very wisely refused to pay for a boon which could only be securely granted under the guarantee of an Act of Par- liament, when the Protector had not the courage to intro- duce a bill which, even if backed by his great influence, would have stood little chance of ever becoming law. At The legal any rate, Cromwell did nothing, and the position of the the^J^ws" Jews remained throughout his regime the same as it had under been in the time of Charles I. They were liable to severe the same penalties if they did not attend an authorized, that is, asunder g^ Christian, place of worship, and they were precluded from holding any Jewish religious service. Jewish rites may, indeed, have been privately practised, but it is evident that the strictest secrecy was observed. It is true that there were still Jews in England, as there had been in the time of the late king, but they outwardly conformed to the laws of the land, or at any rate they were careful to commit no open or flagrant breach of them. Some few of them had rendered the Protector services, especially in his expeditions to the Indies and his war with Spain, so that their presence here was well known to him. As the law then stood he might have ordered their withdrawal, but so long as they created no trouble or disturbance he was willing that they should remain. As Mr. Carteret Webb, writing it is true nearly a century after the events, but at the same time entrusted by the oldest Jewish com- munity in London with the advocacy of their cause, and having knowledge of the traditions of the English Jews and access to all their documents, says, " Nothing more was done by Cromwell than the conniving at Alvaro da Costa and five other Jew families living in England^." This statement of comparatively late date is amply corroborated by Tlie case of the Jews stated, which was drawn up in opposition to the very serious attempt to levy a special tax upon the Jews, shortly after the deposition of James II, the ' The question wliether, &c., p. 36. THE JEWS AND THE ENGLISH LAW II7 opening words of which it will not be out of place to cite here: — "That about the Year 1654 there came Six Jew Families into this Kingdom, which have (since King Charles the Second's Restauration) been increased to the Number of between Three and Fourscore Families." To this then all the statements about Cromwell's protection Cromwell of the Jews amount, that he knowingly allowed some half- J.^,^'^ dozen families to remain in the country, even utilizing their and had services for the purpose of carrying out his political aims, to grant ^ The only favour granted was that he did not, as head of ^Pf]^^ ■^ ° ... privileges the executive, put in force the power at that time claimed to the by the executive of expelling foreigners ^ who might choose j-esTecT to come and reside here. If this can be called a resettle- of their ment he may be said to have connived at it, but if a reset- ^^ '^""^' tlement implies, as it is in common parlance supposed to imply, the creation of some communal organization, the foundation of a synagogue, and the open worship of God according to Jewish rites, there is no reliable evidence that Cromwell ever encouraged, or even connived at, or permitted it. If he had, as is sometimes suggested, granted the Jews a charter or other document conferring special privileges upon them in respect of their religion ; the charter would have been absolutely void even during the Protector's lifetime, and certainly could have been of no avail after his death. For Cromwell was a constitutional monarch; his powers, especially in religious matters, were strictly defined and circiunscribed by written constitutions, the Instrument of Government from December 16, 1653, to May 25, 1657, the Humble Petition and Advice from the latter date till the day of liis death. Neither of these permitted any sort of toleration or religious liberty to be ' Subject no doubt to the provisions of clause 30 of Magna Charta. It is said that the last time when the right was exercised on a large scale was by Elizabeth in 1575, but it was claimed by the Crown till the Revolution (see the argument of Sir Robert Sawyer, Attorney-General, in the East India Company v. Sandys, and Howell's State Trials, 457 sqq.), and there is some doubt whether it is even now abolished (sec Musgrove v. Chun Teeong Toy, L. K. [1891], A. C. 272). Il8 THE JEWS AND THE ENGLISH LAW extended to any persons professing doctrines contrary to Christianity, and the Protector had no power under either to alter or interfere with the religious settlement thereby established. Therefore even assuming — and the assump- tion must be made not only without any evidence, but in contradiction to all the known facts — that a charter of some kind was given, but has been accidentally lost or purposely destroyed, from a legal and historical point of view the Jews could not be said to owe their re-establish- ment to Cromwell, not merely because he was a usurper, and in consequence all his acts, unless confirmed by a sub- sequent sovereign, were void, but because he had never at any time arrogated to himself the right of introducing any strange religion, or mitigating the law in favour of its adherents. Position This was the situation of the Jews in the early days ofCrom^^'of September, 1658; it was almost precisely the same as well's it, had been ten years before, save that the hopes which Previous were then formed had been disappointed, and succour was ^"'■"S"®^ no longer expected from the statesman whose tolerant Jews in words, however sincerely spoken, had not been followed witlTthe ^y ^^y iiieasure of relief. And thus it was that the news Royalists, that " the powerful devil is dead," brought hope and com- fort to the Jews, both here and abroad, as well as to the exiled monarch. Even before Menasseh's mission the as- sistance of the important congregation of Amsterdam had been sought by the Eoyalists, as is made manifest by the following extract from a letter of Sir Marmaduke Langdale to Sir Edward Nicholas, the Secretary of State of the fugitive king, written at Brussels on September 30, 1655 : " For that clause of Mr. Overton's letter which mentions the Jews, it proceeded from some discourses I had with Mr. Brokes [Saxby] about them, who seemed much to favour them as necessary to a kingdom, and I believe their tenets do not much differ. I desired Mr. Overton to sound their intentions by some of his party in Holland. I am very sorry they agree with Cromwell. The Jews are THE JEWS AND THE ENGLISH LAW Iig considerable all the world over, and the great masters of money. If his Majesty could either have them or divert them from Cromwell, it were a very good service. I heard of this three years agone, but hoped the Jews that understand the interest of all the princes in the world, had been too wise to adventure themselves and estates imder Cromwell, where they may by his death or other alteration in that kingdom run the hazard of an absolute ruin: but they hate monarchy and are angry for the patent that was granted by King James to my Lord of Suffolk for the discovery of them, which made most of the ablest of them fly out of England 1." At this time the hopes of the Jews centred in Cromwell's Menas- seh's fail- ure made ^ The Nicholas Papers, vol. Ill, p. 51. It is evident that the Jews of the ^^^ Jews Low Countries had at this time great expectations from Cromwell's ? ^P'^^^'^ readiness to receive Menasseh's mission, preparations for which were far charlesll advanced. The letter here referred to was enclosed in the dispatch recited in the text, and was dated Delf, 13 Sept. 55, by Richard Overton to Sir Marm. Langdale. The material passage is : "I made inquiry into the condition of the Jewes, soe farr as was necessary. I find they are in conjunction with Cromwell ; some of their Rabbles are learning English on purpose to live in England and must go speedily over. They have their meetings at London, and those Rabbles are to be sent thither for y' purpose, soe y' I am very glad I dealt with them by proxe ; not one of them knowes anything of me or what my intentions were. Had they, Cromwell should have known it." — The Nidwlas Papers, vol. Ill, p. 44. The reference to the patent granted by King James to my Lord of Suffolk is not very clear. Thomas Howard was created Earl of Suffolk on July 21, 1603, at which time he was Lord Chamberlain of the Royal Household ; on July II, 1614, he was appointed Lord High Treasurer, but in the autumn of 1618 he was accused of extortion and dismissed. I have been unable to find any patent or commission directed against the Jews alone, but on September 5, 1604, the Earl of Suffolk was appointed one of several com- missioners for the execution of the laws against Jesuits, seminary priests, or other religious persons " being corrupted and brought up seditiously beyond the seas or elsewhere," and authorizing their banishment ; and on June 23, 1618, he was appointed a member of a similar commission (see Calendar of State Papers, Domestic, 1603-10, p. 148, and id. 1611-18, p. 547. The first commission is printed at length in Rymer's Foedera, vol. XVI , p. 597). It is probably one of these commissions that is referred to. In any case the passage corroborates the view expressed in the preceding article that the unbroken residence of Jews in England dates from the first years of Charles I and not earlier. I20 THE JEWS AND THE ENGLISH LAW professions of universal toleration, and had been raised to fever heat by the invitation extended to Menasseh and his followers. But these hopes were destined to bitter disappoint- ment. Before the year had ended, the Conference had been held, but nothing had come of it ; the humble petition pre- sented in the following spring remained unanswered, and though Menasseh still stayed in England his companions had departed to their homes abroad, despairing of success. And so the Jews in Holland now turned to the exiled Charles, peradventure they might obtain from him, in the event of his ever being restored to his kingdom, the boon which had been refused them by the all-powerful Protector. Little more than a year after they had been found so un- approachable by Sir Marmaduke Langdale and Mr. Overton, the failure of Menasseh's mission having occurred in the interval, the negotiations between the Jews and the king Commis- were complete, as may be seen from the copy of a commis- Lt'°Gen ^^°^ ^^ ^i^g Charles II, dated September 24, 1656, at the Middieton Court at Brugcs, addressed to Lieutenant-General Middleton, with ^o treat with the Jews of Amsterdam : " That whereas the them. Lieutenant-General had represented to his Majesty their good affection, and that they had assured the Lieutenant- General, that the application which had been lately made to Cromwell on their behalf by some persons of their Nation, had been and was absolutely without their consent, the Lieutenant-General is impower'd to treat with them, that if in that conjunction they shall be ready to assist by any contribution of money, arms, or ammunition ; they shall find when God shaU restore his Majesty, that he would extend that protection to them, which they could reasonably expect, and abate that rigour of the Law, which was against them in his several Dominions, and repay them ^." Charles was at this time in Flanders, contem- * Brit. Mus. Add. MSS. 4, io6, fol. 253. This paper, says Dean Tucker, was found among the original papers of Sir Edward Nicholas, Secretary of State to Kings Charles I and II, and was communicated to him by a friend. Second letter to a friend concerning Naturalization, p. 29, published in 1753. THE JEWS AND THE ENGLISH LAW 121 plating can expedition against England with the assistance of Spain, and being almost penniless the financial assistance that might be obtained from the Jews was of considerable importance to him. Such assistance he received, and he afterwards, as will be seen, scrupulously carried out the pledge, on the faith of which it had been rendered. But for the time being the prospect for resettlement was not a bright one. Charles was not ready to start until early Thoir in 1658, but on March i of that year English frigates ^°^j®q^^ destroyed his ships at Ostend, and after the battle of the ^y t'le Dunes on June 8, all hope of help from Spain was gone, the Dunes. and the expedition had to be abandoned. The restoration of the king, and the fulfilment of his promise to the Jews, which depended upon it, seemed hopeless, when the news of Cromwell's death, less than three months later, made the first of these events almost certain, though a period of more than a year and a half was to elapse before the king came to his own again. In this interval no great change can be proved to have Interval taken place in the condition of the Jews here, but the reins the"death of government had become slacker, and the laws of intoler- of Crom- ance, though unaltered, were less uniformly enfoi'ced. the Ee- Moreover, as time went on, it became more and more cer- storation. Increase tain that the monarchy would be restored, and the kmgsinthe promise of protection, as well as his well-known tolerant °]^™^*''^,°^ \'iews in matters of religion, filled with encouragement here, those who were here, and induced others to join them. Some of them, it is plain, did not think the situation sufficiently secure to bring over their wives and families with them, for the Petition to the King in Council, pre- sented some six months after the Restoration by the Lord Mayor and Aldermen of the City of London, complains of the competition in the export trade of strangers, "both Christians and Jewes, who live here obscm-el}^ free from family expences and charge of Public ofliees." The same petition also indicates their growing numbera by comparing them to a swarm of locusts " Who are iww daily multiplied 122 THE JEWS AND THE ENGLISH LAW by the accession of whole families of them from all parts (as if your Majesty's dominions were condemned to be the sink into which the sewer of Mankind should be emptied for a plague to your subjects) ^." The other petitions pre- sented at the same time also testify to this increase in the numbers of the Jews. First men- There is moreover some, though it must be admitted weak, Jewish evidence that a synagogue was established at this time. It synagogue -^3,3 of course a Secret, and in no sense a public building. in Eng- . . . . laud. The authority for this statement is a scurrilous pamphlet, entitled The Great Trappaner of England Discovered, written for the purpose of vilifying one Thomas Violet, a goldsmith and Alderman of the City of London, who at this time was taking a leading part in opposing a Jewish resettlement. The tract was apparently written in March, i6f|^, and, in spite of its violent and exaggerated language, has been thought worthy of preservation among the public records. The anonymous writer describes an attempt by Violet to ruin all the Jews and procure their banishment and the confiscation of their property, half of which was to be distributed among the conspirators as their reward, by means of a plot, the object of which seems to have been to hand over a quantity of spurious foreign coins to the Jews, and then charge them with coining or procuring these counterfeit pieces. The writer says that when he discovered Violet's designs he melted down the coins again, and so the plot came to nothing. It is only incidentally that the synagogue is mentioned. The commencement of the plot is described as follows : " This Deponent saith that in the beginning of last Spring " (apparently the spring of 1659), " Tho. Violet Goldsmith came to this Deponent, and told him this Deponent, that the said Thomas Violet knew of a way that might make him the said Deponent for ever, and so desired the said Deponent to go along with him, the said Tho. Violet, into Duke's Place, whereupon the said Deponent went along with the said Tho. Violet into the ' Bemembrancia, vol. IX, p. 44. THE JEWS AND THE ENGLISH LAW 1 23 place before mentioned, and was by him the said Tho. Violet brought into the Synagogue of the Jeiues, in the 2^lo/:e afore- said, and spake with one Mr. Moses their High-priest that year and other Jewes ; and this Deponent saith further, that the said Tho. Violet told the Jewes, this deponent was a fit man to do them service in the business which he the said Tho. Violet had treated with them about ^." This is the first mention in contemporary literature of a visit to a Jewish synagogue in England, and, notwith- standing the mention of the High-priest, it is not quite certain that the writer means a place of public worship; for on this occasion at least it was made use of as a place for transacting business, in which the High-priest, who is spoken of as an annually elected ofiicer, is mentioned as having taken a prominent part, the word may be used in its etymological sense as a meeting-place, or, as is more probable, the whole story may be a fabrication on the part of the anonymous pamphleteer. In any case, it is to be observed that the building, which was so far unknown that Violet had to personally conduct his intended accomplice thither, is said to have been situated in Duke's Place, and not in King Street or Creechurch Lane, the traditional sites of the first synagogues. If used as a place of worship as well as business such user was wholly illegal and strictly secret, so that in the only one of the petitions presented against the Jews in the autumn of 1660, which has been thought worthy of preservation among the State Archives, and which contains the most sweeping and, in many cases, unfounded accusations against the Jews, the establishment of a synagogue is only hinted at, but not directly asserted, in the following words : " And moreover such of late hath been the presumption of the Jewes that as the Report hath gone and so doubtless upon inquiry it will be dis- covered that they have circumcised children, set up and frequented Synagogues and have had and still may have their Schools, Priests, Presbiters, and the like." Violet, ^ The Greed Trappaner of England Discovered, p. 3. 124 THE JEWS AND THE ENGLISH LAAV in his petition, dated December 18, 1660, says that at the time of the Conference with Menasseh the Jews praj^ed " to have liberty to erect new Synagogues or Temples amongst us for the free public exercise of their Jewish worship, Customs, and Keligion ; and they did then erect a Jewish Synagogue and it is at this day, every day they celebrate twice in the day their superstition, their fire never goes out all the year^." We know however that this last statement is untrue, for otherwise there would have been no object in the Jews petitioning in the spring of 1656 for protection for meeting at their private devo- tions in their own houses. Nor did Violet himself, an avowed and bitter enemy of the Jews, take any step in the matter until about Christmas, 1659, when he made an appli- cation to Mr. Justice Tyril, with the intention of obtaining criminal process against them, a fact which indicates that he could not earlier obtain any evidence of their having set up a synagogue, and so rendered themselves amenable to the criminal law. No change There is evidence then that in the year and a half which in the le- gal status ' Violet's Petition, December i8, 1660, p. i. The previous quotation is from the Remonstrance concerning the Jews, November, 1660, S. P. Bom. Car. II, vol. XXI, p. 140. Mr. Wolf, in his Jeim-y of the Reformation, p. 8, note 26, intimates that this latter document is the petition actually presented by Violet to the King in Council. This is not probable ; it is more likely to be the petition of Sir William Courtney and others, or one of the other petitions mentioned as being before the Privy Council on November 30, 1660 (see Prixry Council Register, Car. II, vol. II, p. 57). If it is Violet's original petition, he does not go so far as to say that a synagogue has been actually set up, as he does in his second petition, dated December i8, 1660, and published in pamphlet form in January, i66r. Inasmuch as the debate in the Commons was ordered to take place on December 18, it is probable that this petition was never actually presented, so that it is only a political pamphlet, issued shortly after the proceedings referred to had been dropped, and accordingly little reliance can be placed on the state- ments of fact it contains. Mr. Moses, the High-priest, is no doubt correctly identified by Mr. Wolf as Moses Atliias, described in the Da Costa lists as " Sin. Moses Atees, Creechurch Laine, a Jewish Eibay, and Sin. Moses the Prest wer tho Sinagoge is." Dr. G-aster, in . his History of the Spanish and Portuguese Synagogue (p. i8), says that he must have acted as tho temporary Ilazan, and also as a kind of spiritual adviser. THE JEWS AND THE ENGLISH LAW 125 succeeded Cromwell's death the numbers of the Jews of the increased, and their position and prospects improved so thrRe- far that they ventured to hold divine service, probably in storatiou. a private house, but certainly unknown to the general public or the authorities, and conducted with the strictest precautions and concealment. They may have done this also in the old days when Charles I was king, or in the more recent times of Oliver's Protectorate ; but if they did they managed to leave no trace to attract the attention either of contemporary informers or subsequent histo- rians. It is, moreover, certain that whatever hopes may have been aroused and whatever laxity there may have been in administering the law in this interval, no change was effected in the legal status of the Jews. On Royal Oak Day, May 29, 1660, Charles II made his TheResto- triumphal entry into London, amidst the plaudits and f?*'?" °^ acclamations of the citizens. Thenceforward all the acts and Re- of the late Government, unless expressly confirmed by ^^ the™*^" Parliament, and all the statutes or ordinances enacted Jews, during the time of the Interregnum, were absolutely void. Thus the religious settlement effected by Cromwell was at an end, and the situation as it existed at the period before the great rebellion was revived. When Charles was firmly seated on his throne, the previous legislation against sectarianism and nonconformity, intolerant as it was, did not satisfy the bigotry of the triumphant Cavaliers, who, having themselves experienced the evils of persecution, were determined to take vengeance on their former op- pressors. The history of the reign accordingly reveals a series of measures directed against all who dissented from the tenets of the established church, and it is somewhat remarkable that at the very time when these measures were being enacted and enforced the Jews obtained a permanent and legal settlement in the country. If they had a settlement before this time, it was so successfully hidden as to escape the attention of the authorities, and to baffle the keen eyes of the informers, always ready to 126 THE JEWS AND THE ENGLISH LAW swoop down upon their prey. Now, for the first time, Jews openly defied the acts against recusants by habitually neglecting to attend any Christian places of worship ; now, for the first time, they organized a community, and estab- lished a synagogue where Jewish services were publicly held, notwithstanding the severe penalties to which those who took part in them were by the laws exposed. To explain this strange phenomenon it will be necessary to review briefly the general religious history of the reign, and then examine the occasions on which the still small Jewish community was brought into contact with the Charles II governing powers. The king himself was of a tolerant cate of disposition, and again and again combatted the zeal for toleration persecution of his Parliament, though in these contests he intolerant was often worsted, thanks to his prevailing vices of self- "S®- indulgence and indolence. At this time, as has already been pointed out, toleration did not rank high in the scale of virtues, but there can be little doubt that this was one of the few virtues (if we adopt the popular view of his character) which Charles possessed. In his early days he had had experience of the bigotry of the Presbyterians, when he was nominally a king, though really a prisoner, in Scotland, a situation from which his defeat at Worcester, despite the poverty and exile it brought in its train, came as a relief. His mother was a Eoman Catholic, and he married a Roman Catholic wife. His own religious con- victions were not very strong; during his exile he re- mained a staunch adherent to the Church of England, and even quarrelled with his mother on account of her attempt to convert his brother the young Duke of Gloucester to Catholicism ; but his conduct at this time may have been actuated by policy rather than by conviction. His lean- ings in later life were certainly towards the ceremonies of the Eoman Church, though he put ofi" his formal conversion to it till his death-bed. To him religion was of such little importance that it was absurd to punish any one on its account. He accordingly showed himself a real advocate THE JEWS AND THE ENGLISH LAW 127 of toleration; but when the cry for persecution became too pressing, the desire for ease which prompted all his actions made him yield to it, even as Cromwell, for all his firmness of will, had ultimately given way. This tolerant disposition has already been seen in the grant of the commission to General Middleton in September, 1656, pre- viously mentioned. The promise of protection to the Jews contained in it was only an extension of the terms of the Treaty made with Spain in the spring of the same year, as the price of her assistance for his restoration, by which he agreed to suspend and, if possible, secure the parliamentary revocation of all penal laws. In the same spirit in the Declaration of Breda, issued at the time of his restoration, he says: "And because the passion and uncharitableness of the times have produced several opinions in Religion, by which men are engaged in parties and animosities against each other (which when they shall hereafter unite in a freedom of convocation, will be composed, or better under- stood), we do declare a Liberty to tender consciences, and that no man shall be disquieted or called in question for differences of opinion in matter of Religion, which do not disturb the peace of the kingdom ; and we shall be ready to consent to such an Act of Parliament, as, upon mature deliberation, shall be offered to us, for the full granting that indulgence." The Convention Parliament, by which Charles had been The Con- re-called, did not pass any legislation on the subject of paru°.'^ religion. The House of Commons contained many sup- ment and porters of the old regime, who preferred the Presbyterian Church government established under the Commonwealth to the Church of England as formerly established, and when the question came up for discussion in the House, the king was requested to convene a select number of divines to treat concerning the afiair. As a result of the conference a Declaration concerning ecclesiastical affairs was issued. It provided modifications in Church govern- ment which were a compromise between the views of the 128 THE JEWS AND THE ENGLISH LAW Episcopalians and the Puritans, and further renewed the promise of toleration contained in the Declaration of Breda, in the self same terms ^. The Declaration %vas presented to Parliament. The House of Commons thanked the king for it, and a bill embodying it and turning it into law was presented and read a first time; but the toleration was thought too wide, and the bill rejected on the second reading by 183 to 157 votes ^. The now At the end of the year the Parliament was dissolved, menT' ^^*^ ^^ ^^^ Spring of the following year the elections for 1661. the new House of Commons were held. A wave of loyalty, such as has been seldom experienced, swept over the country. The Cavaliers were everywhere successful; the Puritans everywhere defeated, and when Charles met his Parliament in May, he was confronted by a House of Com- mons which might truly be called " plus royalist que le roi." " The divine right of kings," " Church and State," were the mottoes and watchwords of the newly-elected representa- tives of the people. The Church was to be purged of all dissenting elements, and life in the State to be made endur- able only to those who owned allegiance to the doctrines of the national Church. Accordingly, the first thing done by the House of Commons, after the election of Sir Edward Members Turner as their Speaker, was to order all the members to t'^k'^'th *° ^^^® ^^^ Sacrament according to the old Liturgy, on pain Sacra- of expulsion, and then, in conjunction with the Lords, to '^"'^ ' order that " The solemn League and Covenant " should be burned by the common hangman at Westminster and in the City, and that all copies thereof be taken down out of all churches, chapels, and all other public places in the king- dom. Moreover, the first law that it added to the statute- ' Baxter, the leading Puritan divine, desired to exclude from the general toleration those who denied the Trinity and Papists, as had been done in Cromwell's time by both the Instrument of Government and the humble Petition and Advice, but the king, mindful of his promises, published the Declaration without this restrictive clause. ^ See Cobbett's Parliamentary History, vol. IV, pp. 79, 82, 131-42, 152-4- THE JEWS AND THE ENGLISH LAW 129 book, was " an Act for the well-governing and regulating of Corporations," commonly called the Corporation Act, by The Cor- which no one was eligible to hold any corporate oiEce or ^"Jj^ ^*'" be a member of any municipal corporation who should not, in addition to taking certain oaths and making certain declarations set out in the Act, " have within one year next before his election taken the Sacrament of the Lord's Supper according to the rites of the Church of England ^." Thus all Nonconformists, of whatsoever creed or sect, were placed under a political disability, which was not removed till the year 1838. This was immediately followed by an Act restoring the bishops to their seats in the Upper House. The next measure passed this session to which attention The must be directed was the Quakers' Act, the passage of Jet *'^ which was delayed in the Lords, who " had not stomachs strong enough to digest quite so fast as the Commons furnished them with this sort of food." The objection of the Lords had been that the penalties of the biU extended to others besides Quakers, but after a conference between the Houses the bill was passed. It made penal a refusal to take an oath when lawfully tendered, or maintaining that the taking of oaths was unlawful, and also " if the said persons commonly called Quakers shall at any time depart from the places of their several habita- tions and assemble themselves to the number of five or more of the age of sixteen years or upwards at any one time in any place under pretence of joining in a religious worship not authorized by the laws of this realm." The penalties were five pounds for the first and ten pounds for the second offence, and any one found guilty after two previous convictions, was to abjure the realm, or otherwise be transported to any of the plantations beyond the seas. This Act was not repealed until 181 a, after having been on the statute-book more than a century and a half. It may * 13 Car. II, stat. 2, cap. i, in force till 1828, when it was virtually repealed by g Geo. IV, cap. 17, and finally repealed by 34 & 35 Vict., cap. 48 (the Promissory Oaths Act, 1871). K 130 THE JEWS AND THE ENGLISH LAW The Act of Uni- formity, 1662. First De- claration of Indul- gence, 1662. be remarked that it was fortunate for the Jews that their name was not coupled with the Quakers, as it has been in several subsequent Acts of the legislature ^. The other Act of this session that it is necessary to mention is the Act of Uniformity (13 & 14 Car. II, cap. 4), which ordained the exclusive use of the newly-revised Prayer-book in all places of public worship, and rendered incapable of holding any benefice all who had not been episcopally ordained. Moreover, all professors, tutors of colleges, and schoolmasters keeping any public or private school, were required to subscribe a declaration, which in- cluded a promise to " conform to the Liturgy of the Church of England, as it is now by law established," and school- masters or tutors in private houses, though not compelled to sign this declaration, had to obtain a licence from the bishop of the diocese before exercising their calling, under pain of suffering three months imprisonment, " without bail or mainprize," for each offence. It is to be noted that these last provisions, though allowed to become obsolete, were not repealed till the year 1846. The Act of Uniformity came into force on St. Bartho- lomew's Day (Aug. 34), 1663. Its effect was not only to drive more than 3,000 ministers from their livings, but also, as the earlier legislation punishing non-attendance at church was now revived, to expose Dissenters of every description to severe pains and penalties. In order to prevent the execution of these cruel laws, the king, on December 20, issued "a declaration to all his loving subjects," in which, among other things, he repels the charge of not performing the promises of toleration made at Breda, as to which he says : " We remember well the confirmations of them since upon several occasions in par- liament; and as all these things are still fresh in our memory, so are we still firm in the resolution of perform- ing them to the full. But it must not be wondered at, ' The Act is 13 & 14 Car. II, cap. i, the repealing Act 52 Geo. Ill, cap. 155. See Cobbett's Pari. Hist., vol. IV, p. 233. THE JEWS AND THE ENGLISH LAW 13I since that parKament to which those promises were made in relation to an Act, never thought fit to ofier us any to that purpose, and being so zealous as we are (and by the grace of God shall ever be) for the maintenance of the true Protestant religion, finding it so shaken (not to say overthrown) as we did, we should give its establishment the precedency before matters of indulgence to dissenters from it. But that once done (as we hope it is sufficiently by the Bill of Uniformity) we are glad to lay hold on this occasion to renew unto all our subjects concerned in those promises of indulgence by a true tenderness of conscience, this assurance : — " That as in the first place we have been zealous to settle the uniformity of the Church of England, in discipline, cere- mony, and government, and shall constantly maintain it ; " So as for what concerns the penalties upon those who (living peaceable) do not conform thereunto through scruple and tenderness of misguided conscience ; but modestly and without scandal perform their devotions in their own way, we shall make it our special care so far forth as in us lies, without invading the freedom of parliament, to incline their wisdom at this next approaching sessions, to concur with us in the making some such act for that purpose, as may enable us to exercise with a more universal satis- faction, that power of dispensing which we conceive to be inherent in us ^." In the face of this declaration we are not surprised to find that the penal laws were not strictly enforced, and that in particular cases, in which the declaration itself was not considered a general dispensation, the power of dis- pensing conceived to be inherent in the Crown was hberally exercised. Among the Cavaliers the declaration was un- popular, partly because toleration was disliked, but especially because it was thought that undue favour was shown to the Papists. The king referred to this matter in his speech 1 The whole Declaration is printed in Cardwell's Documentary Annals of ihe Church of England, vol. II, pp. 311-20. K % 132 THE JEWS AND -THE ENGLISH LAW on opening the session of Parliament in February, i66f , as follows : " The truth is, I am in my nature an enemy to all severity for Religion and Conscience, how mistaken soever it be. I hope I shall not need to warn any here not to infer from thence that I mean to favour Popery. ... I am far from meaning a toleration or quaKfying them to hold any oiEces or places of trust in the government; nay further, I desire some laws may be made, to hinder the growth and progress of their doctrine ; . . . and yet, if the Dissenters will demean themselves peaceably and modestly under the government, I could heartily wish I had such a power of indulgence, to use upon occasions, as might not needlessly force them out of the kingdom, or staying here, give them cause to conspire against the peace of it." The Commons, in their address to the king in answer, respectfully but firmly rejected all idea of indulgence to Dissenters of any kind, offering it to his Majesty's great wisdom " that it is in no sort advisable that there be any indulgence to such persons, who presume to dissent from the Act of Uniformity and Religion established." They also added that the promise of toleration made in the Declaration from Breda was no longer binding, inasmuch as it was expressly a promise of legislation which the Par- liament, elected by the free choice of the nation, was Tin- willing to pass. During the session no further Act against Nonconformists was passed, but at the prorogation in July, the Speaker, on behalf of the House of Commons, thought fit to apologize to the king, and at the same time besought him " to issue out your Proclamation for the putting those laws which now are in force against the Popish Recusants, Sectaries, and Nonconformists in effectual execution^." The king made a conciliatory reply to his faithful Com- mons, but it does not appear that the desired proclamation was ever issued. The rancour of the Church was not to be baulked, and accordingly, at the next session (March 16 — May 17, 1664), though the subject was not broached in the ' Cobbett's Pari. Hist, vol. IV, pp. 200, 263, a86, 289. THE JEWS AND THE ENGLISH LAW 1 33 king's speech, the first Conventicle Act (16 Car. II, cap. 4) The Con- was passed. It recites that the Statute ^^ Eliz., cap. i, has '^«'jti«le not recently been enforced, and declares it to be still in 1664. force, and further enacts that all persons above the age of sixteen years attending a Conventicle, i. e. any meeting "under colour or pretence of any exercise of religion in other manner than is allowed by the Liturgy or practise of the Church of England at which there shall be five persons or more assembled together over and above those of the same Household," are guilty of a crime, and liable to three months' imprisonment, or, in the alternative, a fine of five pounds for the first offence, to six months' imprisonment or a fine of ten pounds for the second, and transportation for seven years or a fine of a^ 100 for the third or any subse- quent ofience, and in the last ease only was it necessary that the conviction shoTild take place before a jury. Per- sons transported, who escaped or returned without leave, were declared guilty of felony without benefit of clergy. The Act was only temporary, being limited to a period or rather more than three years, but, as we shall see, it was re-enacted, though with milder penalties, shortly after its expiration. In his speech at the prorogation the Speaker explains the Act and the reason for passing it, though no recommendation on the subject had been made in the king's speech at the opening of the session, in these words : " Whilst we were intent on these weighty afiairs, we were often interrupted by petitions and letters and motions repre- senting the unsettled condition of some countries by reason of Fanatics, Secta,ries, and Nonconformists. They difier in their shapes and species, and accordingly are more or less dangerous ; but in this they all agree, they are no friends to the established government either in Church or State ; and if the old rule hold true, ' Qui Ecclesiae contradicit non est pacifieus,' we have good reason to prevent their growth and punish their practise. To this purpose we have prepared a Bill' against their frequentiog of Conven- ticles, the seed-plots and nurseries of their opinions, under 134 THE JEWS AND THE ENGLISH LAW Bill for granting Liberty of Con- science rejected. The Five Mile Act, 1665. pretence of religious worship. The first offence we have made punishable only with a small fine of ^l. or three months imprisonment, and lol. for a peer. The second ofience with 10^. or six months imprisonment, and aoZ. for a peer. But for a third ofience, after a trial by a jury at the general quarter sessions or assizes, and the trial of a peer by his peers, the party convicted shall be transported to some of your majesty's foreign plantations, unless he redeem himself by laying down lool. : ' Immedicabile vulnus ense reddendum, ne pars sincera trahatur ^ '." In the following session a Bill to enable the granting of Indulgences for Liberty of Conscience was introduced into the House of Lords with the approbation of the king under the auspices of Ashley and Arlington, but without the support of the other ministers. It was opposed by Claren- don, and "In the end very few having spoken for it, though there were many who would have consented to it, besides the Catholic lords, it was agreed that there should be no question put for the commitment; which was the most civil way of rejecting it^." The legislation of persecution was not yet complete. In the following year, 1665, by the Parliament which met at Oxford because the plague was still raging in London, the Five Mile Act (17 Car, II, c, a) was passed which forbade under a penalty of forty pounds and six months' imprison- ment any nonconforming teacher or minister of whatsoever denomination from dwelling or coming within five miles of any city or corporate town without subscribing a declara- tion of non-resistance, and taking the oath laid down in the Act. No further legislation was enacted till the year 1670; the execution of the laws already passed would have satis- fied the Church party ; attention was, moreover, absorbed in foreign affairs and the war with Holland; but, on the other hand, the fall of Clarendon had made the cause of ' Cobbett's Pari. Hist, vol. IV, p. 294. '■' Ibid., pp. 311-15, taken from Clarendon's Life. THE JEWS AND THE ENGLISH LAW 135 toleration more hopeful 1. On March i, i66|, by the pro- rogation of Parliament the Conventicle Act according to the provisions of its last section expired. The Commons, however, made a determined effort to continue it, and a Bill for that purpose was introduced and passed by 144 to 78 votes, but it never went further than the Lower House ^. However, during a later session, on April 11, 1670, Charles, as the price of obtaining supplies which would not be granted on any other terms, gave his consent to the second Conventicle Act (aa Car. II, c. i, repealed in Second 1813 by 52, Geo. Ill, c. 155): by it Conventicles, defined as ^j°°J'^"j(. in the former Act, were made illegal, and all persons attend- 1670. ing them made liable to a fine of five shillings for the first and ten shillings for the second offence. All persons preaching or teaching at such meetings were to be fined twenty pounds for the first and forty pounds for the second offence, and every person in whose house or bam such a meeting was held was to forfeit twenty pounds, and if he was unable to pay this sum, then it was to be levied on the persons present at the Conventicle. Moreover, constables and others neglecting to give information of offences com- mitted under the Act, and magistrates omitting to enforce its execution, were made liable to penalties of five pounds and one hundred poxmds respectively; half of which sums was to go to the informer. All clauses of the Act, contrary to the recognized principles of our criminal law, were to be construed " most largely and beneficially for the suppressing of Conventicles and for the Justification and Encouragement of all Persons to be employed in the Execu- ' In his speech on opening the session on February 10, 1667, the king again recommended toleration : " And for the setting a firm Peace, as well at home as abroad, one thing more I hold myself obliged to recommend to you at this present, which is, That you would seriously think of some course to beget a better union and composure in the minds of my Protestant Subjects in matters of Eeligiou ; whereby they may be induced not only to submit quietly to the government but also cheerfully give their assistance to the support of it." — Cobbett's Pari. Hist., vol. IV, p. 404. ' Cobbett's Pari. Hist,, vol. IV, pp. 421-2. 136 THE JEWS AND THE ENGLISH LAW tion thereof." The Lords, however, appended a proviso, which was ultimately agreed to by the Lower House, "That neither this Act, nor anything therein contained, shall extend to invalidate or avoid his Majesty's Supre- macy in Ecclesiastical Affairs; but that his Majesty and his Heirs and Successors may from Time to Time, and at all Times hereafter, exercise and enjoy all Powers and Authority in Ecclesiastical Affairs as fully and as amply as himself or any of his Predecessors have or might have done the same ; any thing in this Act notwithstanding." In the spring of the following year both Houses of Parliament petitioned the king to issue a proclamation for the banishment of priests and Jesuits, and the enforcement of the laws against Recusants. The king again complied, making, however, this reservation : " But I suppose no man will wonder if I make a difference between those who have newly changed their religion and those that were bred up in that religion, and served my father and me faithfully in the late wars ^." For an interval of nearly two years Parlia- ment did not meet for the effective transaction of business. Declara- The king took this opportunity to publish his famous duigeuc^e^' Declaration of Lidulgence on March 15, 167 a. It recites 1672. the king's desire to preserve the rights and interests of the Church, and the endeavours made to enforce uniformity by coercive measures, and proceeds, " But it being evident by the sad experience of twelve years that there is very little fruit in all these forcible courses, we think ourself obliged to make use of that supreme power in ecclesiastical matters, which is not only inherent in us, but hath been declared and recognized to be so by several statutes and acts of Parliament." The intention of maintaining the doctrine, discipline, and government of the Church of England " as now it stands established by law " is expressed, then follows this passage : " We do in the next place declare our will and pleasure to be, that the execution of all and all manner of penal laws in matters ecclesiastical, '■ Cobbett's Pari. Sist, vol. IV, p. 479. THE JEWS AND THE ENGLISH LAW I37 against whatsoever sort of nonconformists or recusants, be immediately suspended." An intention of licensing places of public worship for such as do not conform to the Church of England is then announced, and " This, our indulgence, as to the allowance of the public places of worship and approbation of the teachers, shall extend to all sorts of nonconformists and recusants, except the recusants of the Roman Catholic religion, to whom we shall in no wise allow public places of worship, but only indulge them their share in the common exemption from the execution of the penal laws, and the exercise of their worship in their private houses only ^." According to Macaulay, of all the many unpopular steps taken by the government, the most unpopular was the publishing of this declaration; it was abhorrent to the enemies of religious freedom, and was thought by the upholders of civil liberty a violation of the constitution, and an unjustifiable exercise of the royal prerogative. The fact that it was at this very time that the Duke of York, the heir presumptive to the throne, ceased to outwardly conform to the established religion, and formally joined the Church of Rome, naturally created the impression that there was an intention to favour Papistry, and the Pro- testant dissenters felt no gratitude for any rehef granted to them on such conditions. When at length the necessity of a supply to carry on the Dutch War forced Charles to reassemble his Parhament in February, 1673, he thus addressed them on this matter: "Some few days before I declared the war, I put forth my Declaration for Indul- gence to Dissenters, and have hitherto found a good effect of it, by securing peace at home when I had war abroad. There is one part in it that has been subject to miscon- structions, which is that concerning the Papists ; as if more liberty were granted them than to the other Recusants, when it is plain there is less ; for the others have public ' Cardwell's Documentary Annals of the Church 0/ England, Tol. II, pp. 333-7- 138 THE JEWS AND THE ENGLISH LAW places allowed them, and I never intended that they should have any, but only have the freedom of religion in their own houses, without any concourse of others. And I could not grant them less than this, when I had extended so much more grace to others, most of them having been loyal, and in the service of me and of the king my father ; and in the whole course of this indulgence, I do not intend that it shall in any way prejudice the Church, but I will support its rights and it in its full power. Having said thus I shall take it very ill to receive contradiction in what I have done. And I will deal plainly with you, I am resolved to stick to my Declaration '." The power The question was speedily taken into consideration by the^l^cia- ^^® House of Commons, which, after a long and fierce ration debate, resolved by 168 votes to 116, "That Penal Statutes, tioned in matters Ecclesiastical, cannot be suspended but by Act m the Qf Parliament " ; and an address to that effect was ordered Commons. The Decla- to be drawn up and presented to the king ; a further ^gfjgj*''^'^" debate took place on the proposal that the Lords should be invited to concur in the address, but it was rejected by 125 to no votes. The address was accordingly presented from the Lower House only. On February 24 the king returned his answer to the address, regretting "the questioning of his power in Ecclesiastics : which he finds not done in the reigns of any of his ancestors; his only design was to take ofi' the penalties the statutes inflicted upon the Dissenters ; and which, he believes, when well considered of, you yourselves would not wish executed according to the rigour and letter of the law " ; he had no intention of avoiding the advice of Parliament, and if any Bill for these ends should be ofiered to him he would readily concur in it ^. The answer was not satisfactory to the House because the claim to suspend penal statutes in matters ecclesiastical seemed to be still asserted, and it was resolved that a second address should be sent to the ' Cobbett's Pari. Hist, vol. IV, p. 503. ^ Ibid., p. 546. THE JEWS AND THE ENGLISH LAW I39 king. On March i the king went down to the House of Lords and complained of the addresses he had received from the Commons, and requested advice thereon. The Lords in answer sent up an address to his majesty thank- ing him for " asserting the ancient just rights and privileges of the house of peers." On March 7 both houses joined in presenting an address against the growth of Popery, and on the following day the king came to the Parliament in person and agreed to the address ; he also asked for supply to be dispatched, and added : " My Lords and Gentlemen ; if there be any scruple remain with you concerning the suspension of penal laws, I here faithfully promise you, that what hath been done in that particular shall not for the future be drawn either into consequence or example." The same day the Lord Chancellor informed the House that his majesty had on the previous night caused the original Declaration under the great , seal to be cancelled in his presence ^. The thanks of both Houses were then returned to the king, and thus ended this incident which it has been thought right to relate at length on account of the light it throws on the spirit of the times as well as upon the question immediately before us. Into the religious history of the remainder of the reign, inextricably bound up as it is with the course of politics, it is not necessary to enter at length ; there was a perhaps not ill-founded suspicion that with an avowed Papist as successor to the crown attempts would be made to over- throw the established Church. In this state of feeling it was not unreasonable to take care that all places of trust and power should be filled by members of the dominant sect only. This was effected by the Test Act of 1673 The Test (25 Car. II, c. a), entitled " An Act for preventing dangers 1673. which may happen from Popish Kecusants," by which all persons holding any office or place of Trust xmder the crown, whether civil or military, were compelled to publicly 1 Cobbett's Pari. Hist., vol. IV, pp. 551, 556-61. 140 THE JEWS AKD THE EXGLISH LAW receive the Sacrament according to the rites of the Church of England, and also to take the oath of Supremacy and sign a declaration against Transubstantiation. The penalty for executing any office without complying with these requirements was incapacity to hold any office or to pro- secute legal proceedings or to act as guardian or executor, or to receive any legacy, and also the forfeiture of five hundred pormds, which could be recovered by any informer for his own benefit. It will be at once seen that this Act, though expressly directed against Papists, was equally applicable to sectaries of all denominations. This was The followed five years later by the ParHamentary Test Act mentary (3° ^^^- ^ ^^- ^)' entitled "An Act for the more effectual Test Act, Preserving the King's Person and Government, by disabling Papists from sitting in either House of Parliament," by which for the first time Roman Catholic peers were excluded from taking their seats in the House of Lords. These last enactments are often defended upon the ground that in the then existing poUtical circumstances it was necessary to strictly exclude Roman Catholics from all share in the government of the country ; on the other hand, the Anglican party took care to exclude all Dissenters, whether Roman Catholics or not ; and though measures were from time to time projected for gi^dng relief to Protestant nonconformists, these were invariably brought forward at times such as the fag end of a session, when they had little chance of ever becoming law. This excuse, however appheable it may be thought to the Test Acts, can hardly be extended to cover a great part of the earKer legislation, such as the Conventicle and Five Mile Acts, or the frequent demands for the execution of the Elizabethan and Jacobean statutes against Recusants. The contest over the Exclusion Bill, the proceedings against those charged with complicity in the Popish Plot, and the subsequent revenge of the court upon the leaders of the country party, did not concern the Jews, protected as they were by their insignificant numbers and exclusion THE JEWS AND THE ENGLISH LAW 141 from all part in the political arena. To them, and the obscure formation of their commmiity in these times of persecution and danger to all who dared to differ in the slightest degree from the religion as by law established and worship God according to the dictates of their conscience, it is now time to turn. 142 THE JEWS AND THE ENGLISH LAW VII. Petitions against the Jews at the At the time of the Restoi-ation there were some thirty families of Jews in England ^, and these naturally awaited with expectation the promise of the king, given through thTResto- Gfeneral Middleton, " to abate that rigour of the law which ration. was against them," and welcomed the declaration of a Liberty to tender Consciences which had been made at Breda. But they had many enemies to reckon with — religious fanatics at a time when no one was thought religious unless fanatical, and trade rivals who, thinking that every transaction of the newly-settled foreign mer- chants was a loss to themselves, looked with a jealous eye on the large and increasing foreign and colonial trade of the Jews, especially that with the recently-acquired colonies in the West Indies. Accordingly it creates no surprise to find that a number of petitions were presented to the king and the Privy Council praying that the laws against the Jews should be enforced, and that, if necessary, new ones should be enacted. At the meeting of the Privy Council on November 30 such a petition from Sir William Courtney and others Was read, and it is plain from the Council's minutes that several other petitions had also been received. The petition of Sir William Courtney is probably the document preserved in the State Papers under the title " Remonstrance concerning the Jews," and . dated November, 1660. It recites, apparently taking Prynne's Demurrer as a guide, the mischief said to have See the Da Costa lists published in Wolf's Jewry of the Restoration, p. 4- THE JEWS AND THE ENGLISH LAW I43 been done by the Jews in former times and their banish- ment under Edward I, and how they have " by little and little and by degrees crept and stolen into England again, and together, some as Jewes aliens and others as English, are become of late exceeding numerous, and how they became so is conceived to be by the means of the late Usurper, who most apparently did protect and countenance them in their affairs and actions," and suggests the issue of a commission to inquire into their state, the imposition of heavy taxes, seizure of their property, and their banish- ment for residing here without a licence from the crown ^. The Council having heard this petition read resolved that it, together with others on the same subject, should be taken into consideration again on December 7. On that day there were read at the Council a petition of the merchants and tradesmen of the City of London for the expulsion of the Jews, and also a petition of Maria Fer- nandez Carvajal (widow of Antonio Fernandez Carvajal already mentioned, who had died in November, 1659) and other merchants, Jews by birth, for his majesty's protection to continue and reside in his dominions. The latter petition has unfortunately been lost; the former is probably the petition of the Lord Mayor and Aldermen preserved in the Guildhall archives ; it requested the king " to cause the former laws made against the Jews to be put in execution, and to recommend to the Two Houses of Parliament to enact such new ones for the expulsion of all professed Jews out of your Majesty's dominions, and to bar the door after them with such provisions and penalties as in your Majesty's wisdom shall be found most agreeable to the safety of Religion, the Honour of your Majesty, and the good and welfare of your subjects I" The Council, judging the business of very great importance, referred all the petitions to the consideration of Parliament, desiring advice therein, and ordered them to be delivered to a member of ^ S. p. Dom. Car. II, vol. XXI, p. 140 ; Calendar, 1660, p. 366. ' Bemenibrancia, toL IX, p. 44. 144 THE JEWS AND THE ENGLISH LAW the House of Commons to be accordingly presented to the Parliaments Though the Privy Council did not itself come to any decisive conclusion on the subject, it seems that the intention was to uphold the king's promise and not to molest the Jews, for on December 17 Mr. Hollis, no doubt under orders from the Council, presented the above-recited order to the House of Commons as specially recommended to them for their advice therein, touching Protection for the Jews. The House thereupon decided to take the business into consideration the next morning 2. The next morning, however, the matter seems to have been shelved, for there is no entry in the journal of anything having been done, and a few days afterwards (Dec. 24) Parliament was dissolved without ever having given their advice on the Jewish problem as they had been requested by the Council. From the general temper of the House of Commons on religious questions during this reign it is clear that no relaxation of the law was to be effected by legislation in favour of the Jews, and the subject was not again brought forward in Parliament for a period of more Position than ten years. The position of the Jews, though unsatis- j^^^*^ f^g^ factory, was by no means intolerable ; the laws against the Eesto- Recusants were not very strictly enforced against them, ^^ '°°' and their place .of worship, if they had already one, was not known, and they therefore escaped all proceedings for taking part in illegal forms of pubUc worship. On the other hand, the new Navigation Act had securely closed all the colonies and plantations against foreign merchants and factors, but this obstacle was surmounted by applying for and in many cases obtaining letters of denization from the king^. As early as the year i66a they were emboldened ' Prim) Council Begister, Charles II, vol. II, pp. 57, 67. ^ Com. Journal, vol. Ill, p. 209. ' The Navigation Act is 12 Car. II, cap. 18. See see. 2, which, being passed by the Convention Parliament, was expressly confirmed by the following Parliament. Se? 13 Car. II, cap. 14. Mr. Webb, in an appen- dix to the Question, &c., gives a list of 105 Jews who received letters of denization in this and the following reign, and this list is not exhaustive. THE JEWS AND THE ENGLISH LAW 145 to erect a synagogue. There is the doubtful reference to a The first synagogue in The Or eat TrapanTier of England Discovered, g^"*^ published in i65o, which has already been referred to; but in a letter dated April 22, 1662^ aiid written by Jo. Green- halgh to his worthy friend Thomas Crompton, minister of Astley chapel, we have the! description of a visit to the Jews' synagogue and the form of worship held there. It is plain that the synagogtie was a separate building formed no doubt out of a private house and arranged in very much the same manner as synagogues are at the present day, the service also being very similar, lasting some three hours and conducted wholly in Hebrew. It was necessary to observe the strictest secrecy, nor was any one admitted to the building, which was in " a private comer of the city," and had three doors, one beyond another, except very privately. Mr. Greenhalgh himself had some difficvilty in going to it. He had an idea that the Jewish merchants in the city must have some place 6f meeting together for divine wbtship, and was curious to see'it. " Whereupon as occasion oflFered me to converse with any that were likely to inform me, I enquired hereof, but could not of a long time hear or learn whether or where any such thing was ; " but, having taken to the study of Hebrew, he obtaiued as a teacher a learned rabbi named Samuel Levi, who gave him a ticket of admittance to the synagogue. We may judge the size of the congregation by the writer's statement that in the synagogue he counted "about or above a hundred right Jews and one proselite amongst them^." It soon became no longer necessary to maintain this strict secrecy. In There is a curious petition for naturalization of about this date (1661) of Jacob Joshua Bueno Henriques among the Staie Pdpers Colonial, vol. XV, No. 74. He says he' ha I Atk., p. 43. * Willes, pp. 553, 554. 1 82 THE JEWS AND THE ENGLISH LAW Jew myself upon an indictment of perjury." Mr. Solicitor- General insisted, " That the indictment would not be wrong against a Jew if it was tacto libra legis Mosaicae ^." AJewmay Half a century later it became necessary to hold that on ^^r"^ ^ J^'w who professed belief in the doctrines of Chi-istianity NewTes- might, although never formally admitted to Christianity, he does be sworn in the common form on the New Testament, not object, jj^ ^j^g g^gg of the King against Gilham, one John King, a money broker, was called as a witness and sworn in the ordinary way. He said that he was born a Jew but had been of the established religion since he had been of capacity to judge for himself, and that he now professed to be of that persuasion. He admitted that he had been married according to the Jewish rites, and that his first wife had been a Jewess, and that he had never been baptized or formally renounced the Jewish religion or been admitted a member of the Established Church. Lord Kenyon ruled that as the witness considered himself bound by the precepts of Christianity, that the obligation of an oath so taken was sufiiciently binding^. The Oaths As questions of this kind occasionally arose ^ the Act Act, 1838. ^ I Atk., p. 35. For the report of the case see i Atk., pp. 21-30 ; I Wilson, p. 84, and Willes, pp. 538-54. " Rex J). Gilham (1795), i Esp., p. 2B6. See also 6 T. E., p. 265. The validity of King's second marriage to Lady Lanesborough had been before Lord Kenyon five years before this time. See Ganer v. Lady Lanesborough, I Peake, p. 25. ' For instance, during the trial of Queen Caroline in the House of Lords in 1820, a discussion arose as to the proper mode of swearing an Italian witness, in the course of which Lord Erskine related the following anecdote. " I remember a case to have occurred when I was at the bar. A person came into the court of King's Bench, in the time of Lord Kenyon or Lord Mansfield, I think Lord Kenyon. Lord Chief Justice Eyre was sitting in the other court^a witness came who did not describe himself to be of any particular sect, entitling him to an indulgence, but stating that from certain ideas in his own mind he could not swear according to the usual form of the oath ; that he would hold up his hand and would swear, but would not kiss the book. . . . He gave a reason which appeared to me a very absurd one — ' because it was written in the Kevelations that the angel standing upon the sea held up his hand.' . . . THE CrVIL RIGHTS OF ENGLISH JEWS 183 to remove doubts as to the validity of certain oaths (i and a Vict., cap. 105) was introduced and passed in the year 1838. It provides " that in all cases in which an oath may lawfully be and shall have been administered to any person, either as a juryman or a witness or a deponent in any proceeding, civil or criminal, in any court of law or equity in the United Kingdom, or on appointment to any office or employment, or on any occasion whatever, such person is bound by the oath administered, provided the same shall have been administered in such form and with such ceremonies as such person may declare to be binding ; and every such person in case of wilful false swearing may be convicted of the crime of perjury in the same manner as if the oath had been administered in the form and with the ceremonies most commonly adopted." From the earliest times after the resettlement the judges Arrange- of the courts of law admitted Jews as competent witnesses ™*"* ?.^ . '- CSiMSG lists and allowed them to take the oath according to their own so that usages. They also showed, still further, a spirit of tolera- ^l^^ tion by no means universal in the seventeenth century, for should not they in some instances actually arranged their cause lists on the in such a way as to allow cases in which it was known i[®)^'^^, T nil • 1 • Sabbath or Jews would be material witnesses to be heard on days other holidays, than the Jewish Sabbath; for example, in the year 1677 the plaintiff in the case of Barker v. Warren had leave given by the Court to alter the venue from London to Middlesex because all the sittings in London were on a Saturday and his witness was a Jew and would not appear that day^. Similar indulgences when no serious inconvenience has been caused have frequently been I said this does not apply to your case, for in the first place you are no angel, secondly, you cannot tell how the angel would have sworn if he had been on shore." Lord Kenyon, having consulted Chief Justice Eyre held that, though the witness was not of any particular sect, the form of oath which he said would be binding on his conscience (whether his reason was a good one or a bad one) ought to be administered to him. (Hons. Pari. Deb., and series, vol. II, p. 91a). '■ a Mod. Rep., p. 271. 184 THE JEWS AND THE ENGLISH LAW gi'anted, and in the year 1900 Mr. Justice Ridley post- poned the sitting of the Long Vacation Court, which would have taken place on the Day of Atonement, to the follow- ing day, at the request of Mr. D. L. Alexander, Q.C., the present President of the Board of Deputies, who at that time was the leading counsel practising in the Vacation Court. This example was still more recently followed by Mr. Justice Bigham, who sat late and so arranged his list at the Liverpool Winter Assizes of 1904 that the evidence in the Jewish libel case of Fineberg v. the Chief Rabbi and the members of the Liverpool Schechita Board should be concluded before the commencement of the Jewish Sabbath. Jewish In the same generous spirit, if we may make a short scrifpl"s^ digression, the courts in enforcing the law merchant, recognized which is incorporated in the common law, have had Merchant regard to Jewish religious scruples and have held the A Jew ex- necessity of observing the Jewish Sabbath or other holy giving day set apart by the Jews for religious purposes a special notice of circumstance excusing a Jew in the habit of observing it dishonour _ ° _ ° of a bill of from performing on that day any act of business which on*^a^°^^ otherwise would be incumbent upon him ; for instance, in Jewish the case of a bill of exchange or promissory note notice of dishonour must be given within a reasonable time of the actual dishonour of the bill or note, and in the absence of special circumstances the notice is not given within a reasonable time unless it is sent off on the day after the dishonour of the bill ; but the fact that such day is Sunday, Christmas Day, Good Friday, or a Bank Holiday is a suffi- cient excuse entitling the holder or indorser of the bill to give the requisite notice upon the day following, and on the same principle it has been held that a Jew is not bound to give such notice on the Day of Atonement but may wait till the next day, and the same principle would extend to the Jewish Sabbath and New Year, and the first and last days of the Festivals in the case of a person accus- tomed to keep his place of business closed on those days. THE CIVIL EIGHTS OF ENGLISH JEWS 1 85 The point was decided as long ago as 181 1, in the case of Lindo V. Unsworth. There the bill sued on had been dis- honoured on Saturday, Oct. 6, and Messrs. Hoare, the bankers, in whose hands the bill was, sent to give notice of the dishonour to the plaintiff on Monday the 8th, but that being the Day of Atonement, and he being by rehgion a Jew, his counting-house was shut and there was no way to communicate the notice to him until after the post had been dispatched. On the 9th he sent off a letter by the post giving notice of the dishonour of the bill, addressed to the defendant at Lancaster. It was contended that the notice was bad, but Lord Ellenborough ruled as follows : — " I think the plaintiff was excused from giving notice on the 8th upon the score of his religion. The law required him to give notice with reasonable diligence ; and I think he did so, if he sent off the letter as soon as he could after the termination of the festival, during which he was absolutely forbid to attend to secular affairs. The law merchant respects the religion of different people. For this reason we are not obliged to give notice of the dishonour of a bill on our Sunday. But it was equally impossible for the defendant to give this notice on the 8th of October. The letter sent off on the 9th is therefore sufficient," and there was a verdict for the plaintiff '. Returning from this digression, we have seen that the Capacity capacity of a Jew to be a witness was decided soon after the bring resettlement in a manner contrary to the view held by Lord actions. Coke. That great jurist had also expressly laid down that a Jew was incapable of bringing an action, and this point also had soon to be decided. The real difficulty of admitting a Jew's evidence was the mode of administering the oath, but the alleged incapacity had been based, not upon the form of the oath, but upon the argument that the testimony of infidels in whatever way they were sworn could not be accepted. ' Lindo V. Unsworth (181 1), 2 Com., p. 602. See also Tassel v. Lewis (1695), I Lord Raymond, p. 743, and the Bills of Exchange Act, 1882, sec. 49 (12) and sec. 92. perpetual enemies. l86 THE JEWS AND THE ENGLISH LAW The alleged incapacity to sue was also supported by einiilar reasoning. Christianity being part and pai-cel of the law of England, those who did not profess it could not have the rights of Englishmen but, whether bom within the king's allegiance or not, must be aliens, nor could they be alien friends, but must be regarded as alien enemies, even though they might be here under the special permission of the king. Lord Coke, in his report of the judgment of the Exchequer Chamber in Calvin's case, thus lays down the law : " All Coke's infidels are in law pei-petui inimici, perpetual enemies (for that^i^- ^^® ^^ presumes not that they will be converted, that fideis are being remota potentia, a remote possibility), for between them, as with the devils, whose subjects they be, and the Christian there is a perpetual hostility, and can be no peace ; for, as the Apostle saith, i Cor. vi. 15 'Quae autem con- ventio Christi ad Belial, aut quae pars fideli cum infideli 1 ' and the law saith, 'ludaeo Christianum nullum serviat mancipium, nefas enim est quern Christus redemit bla- sphemum Christi in servitutis vinculis detinere.' Register 387 ' Infideles sunt Christi et Christianorum inimici.' And herewith agreeth the book in 13 H. 8, fol. 4, where it is holden that a Pagan cannot have or maintain any action at alP." In his introduction to the report Coke admits that he has exercised what he styles the right of every reporter to state the true reasons and causes of the judg- ment in the way that seems to him the fittest and clearest for the right understanding of them. In consequence, even at the time the report was very severely criticized. Nathaniel Bacon says of it: "In handling this case the honourable Reporter took leave to range into a general discourse of Ligeance, though not directly within the conclusion of the case''. Nevertheless a statement of law made by so high an authority was generally accepted, and we find the very ' Eep. VIL 17 a, 17 b. ' Historical Discourse on the Uniformity qf tlie Government of England, part II, cap. 8, edition of 1647, p. 78. THE CIVIL EIGHTS OF ENGLISH JEWS 1 87 words of Lord Coke's proposition embodied in Wingate's Maxims of Reason or the Reason of the CoT/imon Law of England^. Nor was the doctrine regarded as at all unreasonable, seeing that it was undoubtedly the law that a person excommunicated by the law of holy church was at this time incapable of bringing an action^. It was much enlarged upon in the arguments of counsel in the great case of monopolies between the East India Company and Sandys, where the question for decision was whether the Company, which had obtained from the king letters patent conferring upon its members the exclusive privilege of trading to the East Indies, could maintain an action for damages against the defendant for trading thither without licence. It was contended that inasmuch as the inhabitants of the Indies were infidels no subjects of the king could trade with them without licence from the king for fear that they might renounce their faith ; for the king has the preservation of religion by the law vested and reposed in him, and will take care to give licence to traffic to such only as he is confident will never waver from their profession. In support of this contention the passage in Coke was cited and the treatment of the Jews prior to the expulsion was referred to. Upon this topic Pollexfen in his speech for the defendant said : " My lord, pray let us consider of late times what a number of Jews have lived among us ; should we declare this for law at this day, that the people ought to use them as alien enemies, strip them, plunder them, knock them on the head, kill them and slay them? What would be the consequence? What work would this make ? For if this be true, what they assert that they are perpetual enemies, then we can have no peace with them; whoever owes a Jew anything may play the Jew ' Maxims, edition dt 1658, p. 10. ' Co. upon Lit, 138 b. This disability continued until 1813 when it was removed by statute (53 G<30. Ill, cap. 127, sec. 3). For the effect of excommunication and its employment before the passing of this statute see Lecky, EisL, voL HI, pp. 494-6. l88 THE JEWS AND THE ENGLISH LAW with him, never pay him ; whoever has a mind to anything he has, may take it away from him ; if he has a mind to beat him, and knock him on the head, he may ; there is no protection for him, nor peace with him. My lord, I do believe that it is true that the Jews being under the curse, and having been a vagrant people for so long a time, and having no prince to defend them, it is probable they have been made havoc of, and our kings and princes have made bold to do with them according to their own pleasures; though what is recorded of it is so long ago, that it is hard to know the whole truth. But I think they are no precedents to be followed now, unless they had been followed by a suc- cession of practice and authority in our books of law ^." Sii" Robert Sawyer, the Attorney-General, who appeared for the plaintiffs, met this argument by saying that if infidels came into England under a safe-conduct, then until such safe-conduct was formally determined by the king, no subject could seize the person or goods of such alien enemies, and that even when the safe-conduct was deter- mined the right of seizing the property of alien enemies did not belong to the subjects, but was expressly reserved to the king. And this he illustrates by the appropriation by the Crown of the debts due to the Jews and the property they left behind them at the time of their expulsion ^. The court ultimately decided the case, which was pending for nearly two yeai's, from Trinity Term, 1683, to Hilary Term, 1685, in favour of the plaintiff, but the important arguments based on the status of the Jews were not expressly dealt with in the judgments^. The Before, however, this judgment was given, the point was of a Jew raised in a separate case in the Court of King's Bench in to sue ad- Michaelmas Term, 1684. The case is noted in Lilly's mitted in "^ 1684. ' X St. Tr., p. 447. " The fallacy of this argument is the omission of all mention of the special status of villeins of the king then attaching to the Jews. ' The case is reported, X St. Tr., pp. 371-554, 2 Shower, pp. 366-72, and Skinner, pp. 132-7, 165-73, 197-204, 223-6. THE CIVIL RIGHTS OF ENGLISH JEWS 189 Practical Register as follows: "A Jew brought an action, and the defendant pleaded that the plaintiff is a Jew, and that aU Jews are perpetual enemies Regis et Religionis." But it was held by the court that " a Jew may recover as well as a villein, and the plea is but in disability so long as the king shall prohibit them to trade ; and judgment was given for the plaintiff^." The notorious Jeffreys, a great stickler for the prerogative, was at this time head of the King's Bench, and therefore it is not surprising that the decision given in favour of the Jews is based upon the king's right to treat them as villeins, if he pleases, in accordance with the precedents in the times of the Norman and Angevin kings. A few years later, in 1697, the point was again referred Coke's to in Wells v. Williams in the Court of Common Pleas ; in over-mied arguing which case counsel said : " A Jew may sue at this ^7 the day, but heretofore he could not, for then they were looked upon as enemies. But now commerce has taught the world more humanity^," and Serjeant Salkeld, in his report of the case, indicates that the doctrine of Coke was expressly over- ruled by the Coui-t. " Turks and infidels are not perpetui inimici, nor is there a particular enmity between them and us; but this is a common error founded on a groundless opinion of Justice Brooke ; for though there be a difference between our religion and theirs, that does not oblige us to be enemies to their persons ; they are the creatures of God and of the same kind as we are, and it would be a sin in us to hurt their persons. Per Littleton (afterwards Lord Keeper to Charles I), in his reading on the 27 Ed. Ill, 17. M.S.^^ a statute which provides that a merchant stranger shall not be impeached for another's debt but upon good cause, and that merchants of enemies' countries shall sell their goods in convenient time and depart. Nevertheless, as late as 1 744 Chief Justice Willes, in giving his opinion in the case of Omychund v. Barker, thought it necessary to refer to this • The Practical Register (1719), vol. I, p. 4. ' X Lord Raymond, p. a8a. ' i Salk., p. 46. igo THE JEWS AND THE ENGLISH LAW question. After citing the passage from Lord Coke, he says : " But this notion, though advanced by so great a man, is, I think, contrary not only to the scripture, but to common sense and common humanity. And I think that even the devils themselves, whose subjects he says the heathens are, cannot have worse principles ; and, besides the irreligion of it, it is a most impolitic notion, and would at once destroy all that trade and commerce from which this nation reaps such great benefits. We ought to be thankful to Providence for giving us the light of Christianity, which he has denied to such great numbers of bis creatures of the same species as ourselves. We are commanded by our Saviour to do good unto aU men, and not only unto those who are of the household of faith ^." Coke's This is a good illustration of the way in which the common jiot^^ law of England has been altered and developed so as to meet altogether ^}^q needs of the times. When fairly considered, Sir Richard less. Brooke's opinion (upon which Coke's doctrine was pro- fessedly founded), as stated in the year book (12 Hen. VIII, fo. 4), cannot properly be called groundless, but it was not necessary for the decision of the case before the court, in which the question was whether an action of trespass would lie for beating the plaintiff's servant and taking away liis dog ("quum servum suum verberavit et unum canem (vpcat a bloodhound) cepit et asportavit "), to lay down that if a lord beat his villein, or a husband his wife, or a man beat an outlaw or a traitor or a pagan, they shall have no action because they are not able to sue an action. In the Same way the statement in Calvin's case that infidels are perpetual enemies could also be treated as merely obiter dictv/m, for it also was irrelevant to the issue in the case, which was whether persons born in Scotland after the union of the crowns of England and Scotland were in England aliens or natural born subjects and so capable of inheriting lands in England. When therefore the point was raised in the courts at the end of Charles II's and in William Ill's reign, it was * Willes, p. 542. THE CIVIL EIGHTS OF ENGLISH JEWS igi possible to disregard the opinions of those eminent judges, and to pronounce a decision in accordance with the views of the more enlightened poiiion of the country at the end of the seventeenth centuiy ^. The capacity of Jews to hold land or other real property Capacity in England was also for a long time a question of serious hold real" doubt among lawyers. If all Jews, whether born within property, the realm or not, were aliens and perpetual enemies of the king, then they were incapable of holding land, for until the year 1870 no alien could hold land in England. The question could hardly be one of practical importance in the early days of the return of the Jews to England, for the newcomers were all foreigner's, and it was not till their children born here had grown up that it called for serious attention. By this time Coke's doctrine that infidels are perpetual enemies had been already exploded, and accord- ingly, in the year 1 7 1 8, Sir Eobert Raymond, then Attorney- General and afterwards Lord Chief Justice of England, gave it as his opinion that a person born in England, though a Jew, could hold and enjoy an estate in fee simple in English land, and that on his death it would descend to his issue as the lands of other subjects, and not be forfeited to the Crown. Some five years later, when the oath of abjuration was modified in favour of the Jews (by 10 Geo. I, c. 4), the opinions of ten of the most prominent counsel of the day were taken upon this question. Though separately consulted, they all agreed that a subject of his Majesty bom in ^ This is of course no reason for asserting that the earlier opinions were groundless ; on the other hand that they were probably well founded appears from the following passage in Lord Stowell's judgment in the Le Louis case decided in 1817. "With professed pirates there is no state of peace. They are the enemies of every country, and at all times ; and therefore are universally subject to the extreme rights of war. An ancient authority, the laws of Oleron, composed at the time of the Crusades, and as supposed by an eminent leader in those expeditions, our own Kichard I, represents infidels as equally subject to those rights ; but this rests partly upon the ground of notions long ago exploded, that such persons could have no fellowship, no peaceful communion with the faithful," 2 Dodson, p. 244. 192 THE JEWS AND THE ENGLISH LAW England or a free denizen, being a Jew, may purchase lands^. However, shortly afterwards, the pre-expulsion legislation I against the Jews was unearthed and relied on in support ■, of the alleged disability. There were two statutes dealing '; with the matter. In 1371 a statute or ordinance (55 Hfen. Ill) had been enacted, prohibiting Jews from holding any free- hold lands excepting only the houses then in their possession in which they were actually living, but four years later the statute de ludaismo slightly increased their power to acquire land, for the right was granted them to " buy Houses and Curtilages in the Cities and Boroughs where they abide, so that they hold them in chief of the King ; saving unto the Lords of the Fee their services due and accustomed." Ordinance The first of these ordinances does not appear in any of forbidding *'^® printed editions of the statutes, and was discovered Jews to by Tovey in an ancient MS. in the Bodleian Library, discovered ^nd first printed by him in his Anglia ludaica in the by Dr. yga_r T738 ; its authenticity is, however, firmly established, 1738. and so it was agreed that opinions given fifteen years earlier without knowledge of its existence were of little or no value. This point was much discussed during the passage and repeal of the Jewish Naturalization Act of 1753, and after the repeal of the Act Lord Temple moved in the House of Lords that some method might be taken to ascertain this question, and that for this purpose the judges might be desired to attend and give their opinions upon it, but the motion was rejected, principally upon the ground that the judges are not obliged to give their opinions to the House upon such extra-judicial questions, where no bill is depending^. Even as late as 1830 there were those who thought that this alleged incapacity still existed, for Mr. Blunt, in his excellent History of the Jews in England, published in that year, is unable to resist this conclusion *, ' For copies of these opinions see Webb, "The question whether a Jew, ha." pp. 42-6. ' 2 Swanston, p. 508 note, from Mr. Coxe's MS. notes. ' See Introduction, p. V, and pp. 119-27. THE CIVIL RIGHTS OF ENGLISH JEWS I93 and in the same year that unrivalled Master of Real Property- law, Lord St. Leonards, then Solicitor-General, in presenting a petition from one Lewis Levi, asking for a declaratory law to remove all doubts as to the power of Jews to hold landed property in fee, stated in the House of Commons that he concm-red entirely with the petitioner in thinking such a law was necessary. A little later in the session leave was asked to bring in a bill for this purpose by Colonel Wilson, who said that " he was aware that the opinion of the high law men at present was, that the Jews might hold landed property like other British subjects ; but, though that was the present dictum of lawyers, it did not follow that it would be the opinion of their successors," and added that he had himself been dissuaded some years before from buying some landed property of a Jew by Sir Samuel Romilly who had given it as his opinion that he could not obtain a good title from a Jew. The motion was opposed by Mr. R. Grant, who had taken up the Jewish cause, on the ground that it would be prejudicial to the general question of the abolition of the Jewish disabilities to deal with them piecemeal, and negatived without a division ^. It has already been pointed out that these ancient statutes could have no application to the Jews after their return to England centuries later, when the status of villeinage no longer existed^; and certain it is that the Jews long before 1846, when the Ordinance of Henry IH and the Statute de ludaismo were formally repealed, did with impunity openly hold and enjoy landed estates other than houses in towns or cities in which they resided ; a well-known instance is given by Sir Francis Goldsmid, Q.C., in his remarks on the civil disabilities of British Jews, who says that the late Chief Justice Lord Ellenborough (who died in 1818) gave a practical proof of his concurrence in the belief that Jews might hold 1 Hansard, and series, toI. XXIV, p. 236, XXV, p. 429. ' See supra, pp. 63-65, the ' Return of the Jews to England,' pp. 15-17. O 194 THE JEWS AND THE ENGLISH LAW land, by purchasing without hesitation of Mr. Benjamin Goldamid a valuable freehold seat at Roehampton ^. Capacity If a Jew born here, or otherwise having acquired the hold ad- rights of a natural bom subject, was capable of holding vowsons. land and other real property, then there was nothing in our law to prevent his holding an advowson, a species of real property which confers upon the owner the right of presentation to a church or ecclesiastical benefice. And so a Jew, owning an advowson, might present a duly qualified person to fill any vacancy which might occur. It must, however, be evident that if this form of property had been frequently possessed by Jews, attempts, which would have almost certainly proved successful, would have been made to prevent it. Indeed, the right had been taken from Roman Catholics by various statutes, and in cases of advowsons owned by Papists the right of presenting to the benefices when they became vacant vested in the Universities of Oxford and Cambridge, according as the livings were situate in the several counties mentioned in the Acts ^. Similarly, in the Act to permit persons professing the Jewish religion to be naturalized by Par- liament, the famous Jew Bill of 1753, a clause was inserted disabling Jews from purchasing or inheriting any advowson or right of patronage, but the popular clamour raised by the passage of this Act was so great that the Houses of Parliament felt constrained to repeal it as the first measure of the ensuing session, and, as the repeal was of the whole Act, the clause imposing the disability was also annulled ^. Henceforth, therefore, the Jews were under no such disability, unless the statutes or ordinances of the ' p. 4. See also Sir Samuel Eomilly's argument in the Bedford Charity case, 2 Swanston at p. 511, and for the whole subject Lord Lyndhurst's remarks in introducing the Religious Opinions Relief Bill (1846) in the House of Lords. Hans., Pari. Deb., 3rd series, vol. LXXXV, p. 1254. ' See 3 Jac. I, cap. 5, sees. 18-21 ; i W. & M., cap. 26, sec. 4 ; 13 Anne, cap. 13, sec. I, and Edwards v. the Bishop of Exeter (1839), 7 Scott, p. 676, and 5 Bing. N. C, p. 652. • 26 Geo. II, cap. 26 and 27 Geo. II, cap. i. THE CIVIL RIGHTS OP ENGLISH JEWS 195 pre-expulsion period, which it has already been argued •were not applicable, imposed it. When in 1846 these ordinances were formally repealed, as there was no clause dealing with advowsons in the repealing Act, any doubt there may have been on this point was removed, and, however inconvenient or undesirable it may be, it is now undoubtedly the law that a Jew or any other Dissenter, except a Roman Catholic, may have the right to present to a vacant living in the Church of England^. In the case of Jews, though not of other Dissenters, it was thought fit in 1858 to restrict this right by enacting, in the Act which enabled the Houses of Parliament to modify the form of oath to be administered to their members in such a way that Jews could take it, that when any person professing the Jewish religion held any office in the gift of the Crown to which the right of presentation or of appointment to any ecclesiastical benefice is annexed, such right should devolve upon and be exercised by the Archbishop of Canterbury for the time being ^. A Jew therefore, if he holds an advowson in his own right, may present to a living, but he can only present a duly qualified person, that is, a clerk in holy orders, for no one not episcopally ordained will be instituted by the bishop. A Jew was, unless he had previously renounced his Jews and religion, incapable of becoming a clergyman ; and therefore of gje*^ Jews who had committed crimes and been convicted of them could not, according to the opinion of many great \ legal writers, avail themselves of the benefit of clergy which other malefactors, on a first conviction for felony, were at liberty to plead in mitigation of punishment. This right, known technically as privilegium or benejicium clericale, originated in the claim which in early times, when Papal supremacy was still recognized, had been ' In Mirehouse v. Eennell, which was decided in the House of Lords in 1833 before these old ordinances had been repealed, this was stated to be the law by Lord Wynford, see 7 Bligh, N. S., 322. 2 21 & 22 Vict., cap. 49, sec. 4. a 196 THE JEWS AND THE ENGLISH LAW made by the ecclesiastics to exemption from temporal jurisdiction, and to trial, when charged with criminal offences, by the ecclesiastical courts in accordance with the provisions of the canon law. This claim had never been recognized to its fullest extent in England, but the privilege in question had been regulated by a number of statutes, the result of which was that in the time of Charles II any person convicted of felony punishable with death, as all felonies with few exceptions such as petit larceny then were, could before judgment claim his clergy. The result of the granting of this claim was that the convict, having already by conviction suffered forfeiture of all his goods and chattels, was liable to be kept in prison for a time not exceeding one year and, if a layman, to be branded in the hand, after which he could not have the benefit of clergy a second time, but was subject to no further penalty ; but, if in holy orders, he was, after 1 8 Eliz. c. 7, discharged without any further punishment, and could again have the benefit of clergy, however often he might be convicted of a clergyable offence. Benefit of clergy did not, however, apply to cases of treason or any misdemeanour less serious than felony, and was especially ousted or abolished in the case of murder, robbery, and the more atrocious kinds of felony. It was no doubt originally allowed only to those who had been ordained priest or deacon and had " habitum et tonsuram clericalem," but had been demanded on behalf of, and gradually conceded to, all who were supposed to be capable of taking part in the service of the church, which was interpreted as meaning all who could read. But the test of reading was not a severe one, for it became reduced to repeating a scrap of Latin, in nearly all cases the same three words, " Miserere mei, Deus," which became known as the neck verse, and was probably familiar to the bulk of the criminal classes. Thus the privilege was retained long after its original cause had ceased to exist, and was defended as a relaxation of the extreme severity of the common law which punished many offences of a comparatively trivial THE CIVIL EIGHTS OF ENGLISH JEWS 197 nature with the penalty of death. But it was never ex- tended to persons not capable of holy orders ; a by no means small class, including women and, according to the books, blind persons and all who did not profess the Christian religion ; as was said in Poulter's case : " The common law doth not deny henejicium clericatus, the benefit of his clergy, but in certain cases : as if a man be convicted of any heresy, he shall not have his clergy for any felony, &c. The same law of a Saracen, Jew, or other infidel. Gravius est enim, divinam, quam temporalem laedere Tnaiestatem ; the same law in case of high treason against the king ^." Such persons, if they ofiended, were left to the extreme rigour of the common law and to the mercy of the Crown. The unfairness of this state of the law did not pass un- noticed. In 1633 women convicted of grand larceny of goods not exceeding ten shillings in value, and in 1691 women found guilty of any clergyable felony were placed on the same footing as men entitled to clergy. At length in 1706 the idle ceremony of reading, which, as the statute says, by experience had been found to be of no use, was dispensed with by 5 Anne, c. 6, s. 6, which, being liber- ally interpreted, according to Sir Michael Foster, " entitled those who before were supposed to be under a legal incapacity for orders, as Jews and some others were, and likewise those who in presumption of law were not qualified in point of learning, to the indulgence of the law in common with the rest of their fellow subjects ^." It should be added that the whole system of benefit of clergy was swept away in 1837 by 7 & 8 Geo. IV, c. 28, which also abolished the death penalty for all felonies which had formerly been clergyable. Sir WiUiam Blackstone takes a view contrary to the autho- rities which have been quoted, and questions whether it was ever ruled for law that Jews were before 1 706 incapable of the benefit of clergy. Happily for the good name of the '11 CJo. Eep., p. 29 b. " Foster's Orown Cases, p. 306. The statutes as to women are ai Jac. I, cap. 6 and 3 & 4 W. & M., cap. 9. igS THE JEWS AND THE ENGLISH LAW Jewish community in these early days, this was a purely academic question, for the Jews in England did not commit the crimes for which this privilege in mitigation of punish- ment had been gi-anted, as Tovey, speaking of the reign of Charles II, says : " But tho' so few of them were converted, in this Reign, to Christianity, yet in some measure they lived up to the precepts of it, by a regular observance of all civil duties. For I find no complaints against them of any kind, excepting such as related to the Custom-House ; from which they cleared themselves by pleading the King's Patent 1." The prac- The real disabilities, whether civil or political, which were *'j ® ?^. imposed upon the Jews, arose almost entirely from the form admini3- r r ' .... tering the of oath or the method of administering it. The political oath^upon disabilities were occasioned by the tests and forms of oaths the New enacted by Parliament ; the civil ones for the most part by the cause the custom, almost universal at one time, of administering of the civil ^ijg necessary oath upon the New Testament, a method ties of the whoUy unacceptable to a conscientious Jew. Many civil Jens. disabilities were no doubt imposed by the statutes aimed against Popish recusants, but, as has been previously stated, these statutes were not enforced against the Jews, who, though in strictness liable to the penalties enacted by them, were regarded as exempt by reason of the dispensa- tions granted by Charles and James II. The most irksome ' Anglia ludaica, p. 285. The passage in Blackstone is vol. IV, pp. 373, 374, but all the authorities are the other way. See Fost., p. 306 ; 2 Hale, P-373; II Co. Rep., p. 29 b; and Hawkins, Pleas of the Crown, vol. IV, p. 249. Leach's edition of 1795, who says : " Not only those actually admitted into some inferior order of the clergy, but also those who were never qualified to be admitted into orders (which was tried by putting them to read a verse) have been taken to have a right to this privilege, as much as persons in holy orders, whether they were persons lawfully bom or bastards, aliens or denizens, in the communion of the church or excommunicate, within the common benefit of the law or outlaws, &c., so that they were not heretics convict, nor Jews, Mahometans, nor Pagans ; nor luider perpetual disability of going into orders ; admitting of no dispensation, as blind and maimed persons formerly were, and women still are." THE CIVIL EIGHTS OF ENGLISH JEWS 199 of all these disabilities was the impossibility for a Jew to Jews become a freeman of the city of London, and so no Jew f^^'^'^fu** could exercise any retail trade within the city boundaries, freedom of for, by the by-laws of the corporation of London, retail London °^ tx-ade in the city was strictly confined to freemen. By the local usage of the city the oath tendered before admittance to all those entitled to the freedom was always administered upon the New Testament, and thus the Jews were excluded. In the year 1739 an attempt was made to allow Jews to take the necessary oath on the Old Testament. In Trinity term of that year a rule was obtained in the court of King's Bench against the city chamberlain, calling upon him to show cause why he should not admit Abraham Rathom, a person duly qualified, to the freedom of the city. To this rule a return was made that it was the ancient custom to administer the oath of a "freeman on the New Testament, but that when the oath was tendered to Rathom on the New Testament he refused to take it, although he was not a Quaker, and therefore he was not admitted. The case was three times argued at the bar, and finally the Chief Justice Sir Robert Raymond delivered the resolution of the Court. Upon this point he said : " The last objection made is, that it is not reasonable to confine the oath to the New Testament in trading cities, where a man's religion is of no consequence, and ought not to interfere. But the question before us is not whether upon a proper application the Jews may not be allowed to swear upon the Old Testament, as they do when they give evidence ; but whether this custom of taking an oath in the usual manner is unreasonable upon the face of it " ; he then cites authorities as to the definition of an oath, and says that Christianity is part of the law of the land, and continues : " It was said that the law does not require the New Testament in all cases, particularly as to evidence given by Jews. But the reason of that is, because all courts desire to have the best security they can for the truth of the evidence ; and therefore, as it is known they have a more solemn obligation to speak the truth when 200 THE JEWS AND THE ENGLISH LAW Bworn on the Old Testament, it is for that reason allowed. The common regular way of swearing is on the New Testament, and shall we say that a custom requiring such a regular oath is bad? The i Eliz., c. i, s. 19, take notice of an oath upon the Evangelists, and the abjuration oath (till altered for the Jews by 10 Geo. I, c. 10, s. 18) runs upon the true faith of a Christian. We therefore think that this is a good return and allow it ^." Quakers in In this respect Jews were in an inferior position to '^ ^^^^^'^ Quakers, in whose favour Acts of Parliament had been than Jews passed, enabling them in all cases where an oath was respect- required (though not qualifying them to give evidence in criminal cases or to serve on juries or to bear any office or place of profit in the Government), to make an affirmation instead of the oath, and who therefore could not be excluded from civil rights upon the ground that they refused to take the oath when duly tendered in the customary form ^. Jews and Thus the Jews were unable to become citizens of London, *J''**^®.J° „and were in consequence by the by-laws of the city London, excluded from all retail trade within its boundaries ; than™""^** wholesale trade was, however, open to them, and from twelve the first days of their return several of their number be brokers. ^^^ occupied prominent positions as merchants in the city. In addition to their total exclusion from all branches of retail trades, the number of Jewish brokers permitted to carry on business in the city was strictly limited to twelve, who received licences from the court of aldermen. These licences they were allowed to transfer upon payment of a fine to the Lord Mayor, which in the course of time ' Rex V. Boaworth (1739), 2 Strange, pp. 11 12-4. ' The statutes are 7 & 8 Will. Ill, cap. 34 ; 8 Geo. I, cap. 6& 22 Geo. II, cap. 46, sec. 36. See Kex and Morrice «. the Mayor of Lincoln (1698), 12 Mod., p. 190 and 5 Mod., pp. 399-403, where the Mayor of Lincoln was compelled by mandamus to admit a Quaker to the freedom of the city ; and Rex v. the Turkey Company (1760), 2 Burn, pp. 943 and 1,000, where a Quaker was held to be entitled to be admitted to the Turkey Company upon his affirmation without taking the oath prescribed by the Act of Parliament regulating the Company. THE CIVIL EIGHTS OP ENGLISH JEWS 20I became a valuable perquisite^; but if a Jewish broker died without having transferred his licence the appointment fell to the city and might be disposed of to the highest bidder. The place of a Jewish broker was thus of con- siderable value and at least on one occasion became the subject of litigation in the courts. In the year 1750, upon the bankruptcy of a Jewish broker, a petition was presented to the Court of Chancery, praying that his place as broker might be sold for the benefit of his creditors, but Lord Chancellor Hardwicke held that it could not be considered as an office, and refused the petition ^. It remains only to add that in the year 1829 the following The dis- motion was unanimously carried in the Court of Common ^^^^'*y Council, " That it be referred to the Committee relative to Deo. 10, wholesale dealers to make inquiry and report as to the ' ^°' municipal or legal impediments by which Jews carrying on business in the City of London are debarred from taking up their freedom of the City of London." In consequence of the report subsequently sent in, an Act was passed on December 10, 1830, by the common council, for enabling persons to take the oath according to the forms of their own religion ^ And so since the year 1831 the custom of ' "As much as £1,500 has been paid for a broker's medal, and a system of disgraceful jobbing has been the consequence ; a Lord Mayor and four Aldermen next in succession to the chair having formerly conspired together to raise the customary fee for transferring a broker's medal from £100 to £500 in which they succeeded. Taking customary fees (however unjust) might perhaps be palliated by immemorial usage ; but may it not be asked in the case just alluded to, in the offensive sense of the word, who was the greatest Jew, my Lord Mayor or the broker? It is not astonishing that cases should have occurred where a broker has retaliated upon his lordship ; and it was whispered many years back, when these transactions took place, that by threats of exposure sums have been disgorged and paid back again to the broker." Brief memoir of the Jews in relation to their civil disabiliUes by Apsley Pellatt, himself a member of the Corporation, published in 1829. ' See ex parte Lyons (1750), Ambler, p. 89. ' See Welch's Modem Eistory of the City of London, p. 167. Journal, 105, fols. 5, 6. 202 THE JEWS AND THE ENGLISH LAW administering the necessary oath on the New Testament only was no longer adhered to, and Jews have without any Act of Parliament having been passed in their favour enjoyed all the privileges of the citizenship of London. Exclusion In the same way the exclusion of Jews from the various legSand professions was due to their inability or unwillingness to other pro- comply with the regulations, especially where these included the taking of an objectionable oath, laid down by those who had the right to control the admission of candidates, and not to any impediment created by the general law of the country. It is sometimes said that the profession of the law was an exception to this general rule, and some colour is lent to this theory by the existence of provisions in certain statutes, namely i Geo. I, st. 2, c. 13, s. 2, 2 Geo. II, c. 31, and 9 Geo. II, c. 26', obliging "every person who shall act as a Serjeant at Law, Counsellor at Law, Barrister, Advocate, Attorney, Solicitor, Writer in Scotland, Proctor, Clerk or Notary," under pain of incurring severe disabilities and forfeiting .^^500, to take the oaths mentioned in the first-named Act. Among these was the oath of abjuration (afBrming the legality of the Hanoverian succession, and renouncing allegiance to the exiled House of Stuart), which ended with the words " upon the true faith of a Christian," and therefore could not be taken by a seK-respecting Jew. In the year 1766 the terms of the abjuration oath were slightly altered (by 6 Geo. Ill, c. 53), but the obnoxious final words were still retained. But these oaths had not to be taken before admission to the legal profession, but ' The earlier statutes 5 Eliz., cap. i, sec. 5, and 7 Jac. I, cap. 6, sees. 12- 18, providing that persons entering the legal profession should take an oath upon the evangelists, vrere apparently treated as no longer in force, either because they were regarded as being superseded by the later Acts, or because the oaths specified in them had been abrogated by i W. & M., cap. 8, and it would seem from sec. 25 of the Act of James I that it was never intended to be more than a temporary Act. These statutes applied equally to schoolmasters, and the last one to the medical profession, and were formally repealed in 1846 by 9 & 10 Vict., cap. 59, sec. I. THE CIVIL EIGHTS OF ENGLISH JEWS 203 ■within a certain time afterwards ^. That time was origin- ally three months, but the second-recited Act extended it to the end of the term following admission, and the third to six months. In the first year of George 11 an indemnity Act was passed, The by which all persons who had neglected to qualify them- jemnfty" selves for any office or employment by omitting to take Acts, the necessary oaths, &c., are indemnified and recapacitated provided that they qualified themselves on or before November 28, 1728, and every year until the year 1868, when the enactment of the Promissory Oaths Act made their continuance no longer necessary, similar Acts of indemnity were passed enlarging the time for qualification till some day in the following year. Therefore, after the reign of George II, there was nothing in the Acts recited to prevent a Jew from entering the legal profession, if he was willing to take the risk, not a very serious one, of the annual indemnity Act not being re-enacted, and his accordingly becoming incapacitated to continue to follow his profession upon the expiration of the time limited by the existing Act. But, on the other hand, admission to the legal profession Jews ad- could only be obtained through the medium of certain J^^ g^^. " persons or societies who, though not bound to do so by 1833. any Act of Parliament, might lay down conditions with which Jews could not comply. For instance, the right to admit to the degree of barrister-at-law, holders of which alone are entitled to plead in the superior courts and are therefore considered the higher branch of the legal profession, has from time immemorial been vested in the * The position of Komau Catholics wishing to practise the law was different, for the statute 7 & 8 Will. Ill, cap. 24, providing under pain of incurring the penalties of praemunire that no person should practise law without first taking certain oaths (none of which were obnoxious to Jews) and making a declaration against transubstantiation, effectually excluded them, prior to the Roman Catholic Belief Act of 1791, from all participation In the legal profession except the calling of a conveyancer which was not expressly mentioned in the statute. 204 THE JEWS AND THE ENGLISH LAW Inns of Court. These are voluntary societies, and no member of the public has an inherent right to be admitted to them^. Persons once admitted members must then become qualified for call to the bar, and one of the qualifications which, having regard to the statutes already mentioned, can hardly be considered unreasonable, was the taking of certain oaths, including the oath of abjuration. In the year 1833 Mr. Francis Goldsmid, who had been previously admitted a fellow of the society, applied to the benchers of Lincoln's Inn to be called to the bar, and to be permitted to omit the final words from the oath of abjuration. There was some discussion, at a full meeting of the benchers, during which Lord Campbell^ who was then Mr. Campbell, K.C., M.P., says that he pointed out the hardship to be imposed upon the young gentleman, who had been allowed to keep his terms and whose prospects in life would thus be suddenly blasted ; to which Mr. Clarke, K.C., leader of the Midland Circuit, and at that time master of the library, replied : " Hardship ! no hard- ship at all 1 Let him become a Christian, and be d d to him ! " but this reply was not taken as a serious argument, for it was unanimously resolved that the application should be granted, and Mr. Goldsmid was called to the bar and afterwards became a Q.C. and a bencher of his Inn^. The precedent was followed by the other Inns, and so a disability, which had long been supposed to exist, was removed without the necessity of the intervention of Par- liament. As this is an instance of the way in which almost all the disabilities of this . kind could have been, and in many cases were, removed, it may be of interest to append the relevant entries in the records of Lincoln's Inn: — • See the King v. the Benchers of Lincoln's Inn (1825), 4 B & C, 855 ; Neate v. Durwan (1874), L. E., 18 Eq. 127 ; and Manisty ». Kenealy (1876), 24 W. R., 918 for the legal position and government of the Inns of Court. ^ Lives of the Chancellors, vol. V, p. 544 (note). THE CIVIL EIGHTS OF ENGLISH JEWS 205 " 1827. Dec. 37. Francis Henry Goldsmid (19) i s. Isaac Lyon G., of Dulwich Hill Ho., Surrey Esq." * "Special Council held on Jan. 35, 1833. Twenty Benchers present. Upon the application of Francis Henry Goldsmid, gentle- man, a Fellow of this Society, relative to his call to the Bar, It is ordered that the question whether a person of the Jewish persuasion is eligible to be called to the Bar, be adjourned to Wednesday next." "Special Council held on January 30, 1833. Nineteen Benchers present. Upon the motion of the Rt. Hon. Thomas Erskine, Mr. Fi-ancis Henry Goldsmid was unanimously called to the Bar." 2 It remains but to add that the benchers on this occasion Admission merely followed the praiseworthy example which had been soiiciTors' set by the leaders of the lower branch of the profession 1770- nearly sixty years before. And here again it will be well to set out extracts from the records. In the draft minutes of the Society of Gentlemen Practisers for June 25, 1770, appear the following notes, written apparently by a member of the committee : — " No Jew to be bail for any person but a Jew. Abraham Abrahams ) „ ox j. • j-i, a x-n n j ^ , > 1 ore Street in the Artillery Ground, Jacobs J admitted as attorneys." In another document, also to be found in the printed edition of the records, the exact steps by which the admission was effected, are given. It reads as follows : — " Oath by Jewish Solicitor. Joseph Abrahams, son of Abraham Abrahams of Mitre Court, Leadenhall Street, was on the a9th Deer., 1763, * Admission Register, no. 19, fo. 65 ; Records of Lincoln's Jnn, vol. II, p. 127. ' Black Books 0/ Lincoln's Inn, Book XXII, pp. 233, 234 ; Records of Lincoln's Inn, Black books, vol. IV, p. 185. 2o6 THE JEWS AI^D THE ENGLISH lAW articled as clerk to George Ellis the younger of Deans Street, fFetter Lane, an attorney of the Court of King's Bench. AfSdt. of due execution of the Articles sworn 25th Jan. 1764 fyled i8th fFeb. 1764. On ye 18 July 1769 the said Joseph Abrahams was assigned over by Articles by the said George Ellis to Robt. Gill of Angel Court, Throgmorton Street, Attorney in the Common Pleas. a3rd Jan. 1770 the said Joseph Abrahams was admitted as an Attorney of the King's Bench by Mr. Justice Yates. 13th fFebry 1770 was admitted a Sollr. in Chancery. The Deputy Clerk of ye petty Bagg informed me Abrahams was sworn on the Bible. loth Geo. 1st. cap. 4. Subjects professing ye Jewish Religion presenting themselves to take ye Oath of Abjuration (the words Upon the true faith of a Christian to be omitted) and deemed a sufft. taking of the abjuration Oath 1." The pro- The profession of a tutor or schoolmaster was also fession of gJQgg^ ^q ^j^g jg^ uj tjjg game way as that of the law, masters for the statutes already enumerated ordaining the taking an u org. ^^ obnoxious oaths embraced the followers of the teaching profession as well as the practisers of medicine and law. The disability thus imposed was, however, practically obviated in. the way already described after the reign of George II by the passage of the annual indemnity Acts. Yet firom this particular profession the Jew was excluded by other statutory provisions. The Act of Uniformity provided that "all masters and other heads, fellows, chaplains and tutors of or in any college, hall, house of learning or hospital, and every public professor and reader in either of the universities and in every college elsewhere . . . and every schoolmaster keeping any public or private school and every person instructing or teaching any ' Records of the Society of Qentlemen Practisers, pp. 120, 121, 288. THE CIVIL EIGHTS OF ENGLISH JEWS 207 youth in any house or private family as a tutor or school- master," shall before admission subscribe a declaration of which an important clause was " that I will conform to the liturgy of the Church of England, as it is now by law established," upon pain of deprivation. It is plain that this penalty was scarcely applicable to a tutor or schoolmaster in a private family, and accordingly the following section provided that such persons should obtain a license from the Bishop of the Diocese, and that if any person should instruct or teach any youth as a tutor or schoolmaster before obtaining such license and subscribing the declaration he should suffer three months' imprisonment without bail or mainprize ^. These provisions were not very rigorously enforced, at Dissenters least as regards teaching in private houses, but were quite ^'=^*>'«d sufficient to exclude all persons not members of the Church teaching of England from taking any part in the instruction of youth pubUc in the public schools of the country, nor can it be doubted schools that such was the intention of the legislature throughout colleges. the eighteenth century, for the Act of 1769, expressly passed for the relief of Protestant dissenting schoolmasters, in terms provides that nothing therein shall extend "to the enabling of any person dissenting from the Church of England to obtain or hold the mastership of any college or school of royal foundation or of any other endowed college or school for the education of youth, unless the same shall have been founded since the first year of the reign of their late Majesties King William and Queen Mary, for the immediate use and benefit of Protestant Dissenters ^." The Koman Catholic Eehef Act of 1791, which enabled Roman Catholics to be tutors or schoolmasters, has a similar proviso "that no person professing the Roman Catholic religion shall obtain or hold the mastership of any college or school of royal foundation or of any other endowed college or school for ' 13 & 14 Car. II, cap. 4, sees. 8-11, superseding the 23 Eliz., cap. I, sees. 6, 7 and i Jac. I, cap. 4, sec. 9. ' 19 Geo. Ill, cap. 44. provisions of 2o8 THE JEWS AND THE ENGLISH LAW The Religious Disabili- ties Act, The Uni- versities and Dis- senters. the education of youth or shall keep a school in either of the Universities of Oxford and Cambridge ^." No relief from this disability was ever expressly granted to the Jews, but in 1846 the Eeligious Disabilities Act (9 & 10 Vict. c. 59, s. i), which, as has been already men- tioned, placed the Jews as regards education on the same footing as Protestant Dissenters and thereby legalized their communal schools and any endowments attached to them, absolutely repealed the disability so far as it related to teaching in a private house or family, and a quarter of a century later the Universities Tests Act of 1871 (34 & 35 Vict. c. 26, s. 8) abolished it so far as it related to teaching in colleges or public schools. The Universities themselves were for a long time impos- sible of access to the Jews, who were nevertheless in regard to the Universities in no better or worse position than all others who dissented from the Church of England. Acts of Parliament had been passed at various times (i Eliz., c. I, 7 Jac. I, c. 6, I Guil. & Mar., c. 8, i Geo. I, st. 2, c. 13) requiring oaths, some of which at least would have been obnoxious to Jews, to be taken by persons admitted to degrees or offices in the Universities. But by means of the annual indemnity Acts, any difficulty thus created might have been surmounted in the same way as entrance to the liberal professions had been gained by the Dissenters. The Universities and their colleges, although not originally ecclesiastical foundations ^, had always kept up a close ' 31 Geo. Ill, cap. 32, sec. 14. The Act further provided that no schoolmaster professing the Roman Catholic religion should receive into his school for education the child of any Protestant father. The rights given to Eoman Catholic schoolmasters were thus, though given twenty- two years later, much more limited than those conferred on Protestant Nonconformists. The reason for this was the popular distrust of Eoman Catholicism which insisted upon a declaration of the illegality of any endowment of a school or college for the instruction of persons professing that religion ; see sec. 17 of the Act — a disability which was only removed by the Roman Catholic Charities Act of 1832 (2 & 3 Will. IV, cap. 115). ' The Universities are civil corporations and their colleges eleemosynary corporations (see Stephen's Blackstone, vol. Ill, p. 3). THE CIVIL EIGHTS OF ENGLISH JEWS 209 connexion with the Established Church, and, so far from smoothing the way for sectarians to take degrees, actually insisted on all their members taking religious tests in addition to the statutory oaths, including in most cases subscription to the Thirty-nine Articles of the Church of England. These tests had to be taken at Oxford before matriculation or admission to membership, but at Cam- bridge might be deferred until candidature for a degree. In 1850 Koyal Commissions were appointed to investigate and report on the constitution of the Universities of Oxford and Cambridge, and legislation was initiated in consequence of their reports. The University of Oxford was first dealt with. The Oxford University Reform Act, 1854 (17 & 18 Vict., c. 81, sees. 43, 44) provided "that it shall not be necessary for any person, upon matriculating in the Uni- versity of Oxford, to make or subscribe any declaration or to take any oath, any law or statute notwithstanding," and further that no such subscription or oath should be necessary upon taking the degree of Bachelor in Arts, Law, Medicine, or Music, but a proviso was added that such degree should not constitute any qualification for holding any office which had theretofore been held by members of the United Church of England and Ii-eland, unless the oaths and declarations required by law had been taken and made. The opening to Dissenters of the lower degrees only was intended to prevent them from taking any share in the government of the University, and the object of the proviso was to continue the monopoly of educational appointments belonging to members of the Established Church. Two years later the Cambridge University Reform Act, 1856, carried the cause of religious liberty, so far as the younger University was concerned, one step further, by enactiug that no oath, declaration, or subscription should thenceforth be required to be taken by any person either (i) upon obtaining any exhibition, scholarship, or other college emolument available for the assistance of an undergraduate student in his academical education, or (a) upon matricu- p 210 THE JEWS AND THE ENGLISH LAW lating or taking any degree in Arts, Law, Medicine, or Music, provided, however, that such degree should not, until the holder subscribed a declaration stating that he is bona fide a naember of the Church of England, entitle him to become a member of the Senate or qualify him to hold any office either in the University or elsewhere which had theretofore always been held by a member of the Established Church, and for which such degree was a qualification ^. Not unnaturally, after the passage of these Acts of Parliament the University of Cambridge was more frequented by Jews and other Dissenters than the sister University ; for at Cambridge all scholarships and the higher degrees (except in the faculty of theology) were thrown open to all persons irrespective of religion, but the right to hold a fellowship or take any part in the government of the Universities was still strictly confined to members of the Established Church. The TJni- The position was not satisfactory, and a wider toleration Testa Act ^^^ demanded. Bills to efiect this end were regularly 1871- brought forward in Parliament, and at length in 1870 the government of the day took up the question, and a Univer- sities Tests Bill was piloted through the House of Commons by Sir John Duke Coleridge, the Solicitor-General. The Lords, however, shelved it by appointing a Select Com- mittee to consider the matter. The Bill was again introduced the following year and passed, but several amendments intended for the protection of the Church of England were inserted by the House of Lords in accordance with the recommendations of their Select Committee. The efiect of the Act is that all degrees, together with all rights and privileges annexed to them, and all ofiices in the Universities of Oxford, Cambridge, and Durham (which was also included in the Act), or any of their colleges, subsisting at the time the Act was passed, were thrown open to all persons irrespective of their religious belief. The only exceptions are degrees in and professorships of ' 19 & 20 Vict., cap. 88, sees. 45, 46. THE CIVIL EIGHTS OF ENGLISH JEWS 211 divinity, and such offices as had been previously by some ordinance or statute confined to persons in or about to enter holy orders (thereby saving the clerical fellowships and headships of houses), or confined to members of the Church of England by reason of a degree being a qualifi- cation for holding them. Moreover, no member of a university or college can henceforth be compelled to attend the public worship of any church, sect, or denomination to which he does not belong, or any lecture to which he, if of full age or, if he is under age, his parent or guardian shall object on religious grounds. On the other hand, it is expressly stated that the Act shall not interfere with the religious instruction, worship, and discipline previously established, and every college is required to provide sufficient religious instruction for all its undergraduate members belonging to the Established Churchj and also to continue in its chapel as theretofore the daily use of the Morning and Evening Prayer according to the Order of the Book of Common Prayer. The Act does not apply to new foundations ^, but refers only to colleges subsisting at the time of its passage. It is therefore open for the adherents of any legally recognized religion to establish a college or hall in any of the univer- sities, and conduct it on purely sectarian principles. The Jews have never attempted to create such a foundation, but have liberally availed themselves of the right of becoming members of the colleges thrown open to them by the legislation of the second half of last century. Having now completed a summary survey of the civil Jews and disabilities of the Jews and the means by which these have brancheT been removed, before passing to the consideration of their of educa- political rights, it may be not without interest to those who have followed the story of their admission to the univer- sities to add a short account of the religious position in the lower branches of education. The anomalies and want of system which characterize almost all our English institu- » See Eeg. v. Hertford College, Oxford (1878), L.E. 3 Q.B.D. 693. P 2 212 THE JEW3 AND THE ENGLISH LAW tions are not absent from those which carry on the education of the country. In dealing with this subject it is not necessary to attempt a scientific classification of English schools, which from a legal point of view may be roughly divided into six classes : — (i) Private schools. (2} Public schools. (3) Endowed schools. (4) Public elementary schools. (5) Public higher grade and technical schools. (6) Poor-law, reformatory, and industrial schools. Private In private schools, which embrace all schools not sup- **^ °° "■ ported by endowments or money provided from public funds, there is in this country no legal restriction in matters of religion, and the master or owner of such school may at his own pleasure provide or abstain from providing religious instruction, and if he does provide it may insist on all the pupils taking part in it, or make such exceptions as he thinks fit. The instruction may be of any kind the master chooses, subject perhaps to this limitation, that it must be such that it can be brought within the tenets of one or other of the religions which have been admitted to the benefits of the Toleration Acts, and provided also that no attempt is made to make children educated in the Christian religion deny the truth of Christianity, for such an attempt might bring the master within the pains and penalties of the obsolete but still existing Act for the more efiectual suppressing of Blasphemy and Profaneness (9 Will. Ill, c. 35), the history of which was given in the second of these articles. The only remedy of a parent who disapproves of the religious education given at a private school is to withdraw his child and place him at another school. Public Public schools in the legal sense include only those which come under the provisions of the PublicSchoolsAct, i868, and its amending Acts (31 & 33 Vict., c. 1 1 8 ; 32 & 33 Vict., c. 58 ; 34 & 35 ^iot, c. 60 ; 36 & ^y Vict., c. 41 and c. 63), namely. THE CIVIL EIGHTS OF ENGLISH JEWS 213 Eton, Winchester, Westminster, Charterhouse, Harrow, I^ugby, and Shrewsbury. The principal Act empowers the governing bodies of these schools to make, and from time to time to alter and annul, regulations with respect to various matters, amongst which those relating to religion are — (a) With respect to attendance at Divine service, and, where the school has a chapel of its own, with respect to the chapel services and the appointment of preachers. (6) With respect to giving facilities for the education of boys whose parents or guardians wish to withdraw them from the religious instruction given in the school. The head master is, however, entitled to be consulted on all such regulations, and also to submit to the governing body proposals for making new or altering or annulling old regulations. At the present time Harrow is the only one of these schools in which regulations have been made to enable Jewish boys not only to be absent from Divine service in the school chapel, but also to receive instruction in the tenets of their own religion. It should be added that by the thirteenth section of the Act of Uniformity (14 Car. II, c. 4), which is still unre- pealed as to them, the governors and heads of Westminster, Winchester, and Eton are required to conform to the Church of England and subscribe the Thirty-nine Articles. Endowed schools are now governed by the Endowed Endowed Schools Act of 1869 and the amending Acts (3a & 33 Vict., ^''^°°^- c. 56; 36 & 37 Vict., c. 87 ; and 37 & 38 Vict., c. 87), and comprise aU schools (other than those coming under the Public Schools Act) which are whoUy or partly maintained by means of any endowment, including therefore many of the institutions popularly known as public schools. Before 1869 these schools had been divided into two classes, there being no statutory requirement as to exemption from religious education of children in schools which came under the Grammar Schools Act of 1840 (3 & 4 Vict., c. 77), but in the case of other endowed schools it was provided by the Endowed Schools Act, i860 (33 & 24 Vict., c. 11), that 214 THE JEWS AND THE ENGLISH LAW it should be lawful for the trustees or governors of every endowed school to make, and that they should be bound to make, orders admitting to the benefits of the school the children of parents not in communion with the church, sect, or denomination to which the endowment belonged, unless the wiU, deed, or other instrument regulating the endowment expressly required all children educated under it to be instructed according to the doctrines or formularies of such church or denomination. The This provision was, however, not considered adequate, Soho°oTs^'^ and the Endowed Schools Act of 1869 was passed on the Act, 1869. recommendation of the commissioners appointed five years previously to consider the question. It applies both to grammar schools and other endowed schools, and as to religious teaching provides that in every scheme which the commissioners — now the Charity Commissioners — shall frame for the regulation of such schools provision shall be made that the parent or guardian of any child attending as a day scholar may claim by notice in writing addressed to the principal teacher the exemption of such scholar from attending prayer or religious worship, or from any lesson on a religious subject, and that such scholar shall be exempted accordingly without forfeiting any advantage or emolument to which he would otherwise be entitled, except such as may by the scheme be expressly made dependent on learning such lessons, and further that upon complaint from the parent or guardian that any teacher systematically teaches any religious doctrine to a child after such notice has been sent, the governing body shall inquire into the complaint, and if judged well founded shall take proper measures for its remedy. This refers to day scholars only, but with regard to boarding schools it is enacted that every scheme shall provide that if the parent or guardian of any scholar about to attend such school, who otherwise could only be admitted as a boarder, desires his exemption from attending prayer or religious worship or any lesson on a religious subject. THE CIVIL EIGHTS OF ENGLISH JEWS 215 but the persons in charge of the boarding houses of the school are not willing to allow such exemption, then it sTiall be the duty of the governing body of the school to make proper provisions for enabling the scholar to attend the school and have such exemption as a day scholar. Moreover, the religious opinions of any person or his attendance or non-attendance at any particular form of religious worship shall not in any way affect his qualifica- tion for being one of the governing body of such endow- ment. But schools which are maintained out of the endowment of any cathedral or collegiate church, or the scholars of which are required by the express terms of the instrument of foundation to be instructed according to the doctrines or formularies of any particular church, sect, or denomination, are excepted from these provisions as to religious instruction ^ or worship, other than those for the exemption of day scholars when it has been duly claimed. It is to be observed that these conscience clauses do not enable parents to claim exemption for their children from attendance upon a Saturday, or any other day to be set apart for rebgious observance by the tenets of their creed, nor to insist upon their admission as boarders, though they can demand that provision should be made for them to attend an endowed school, which has theretofore been con- fined to boarders, as day scholars, and in fact at several schools, such as Clifton, Cheltenham, and the Perse Grammar School, boarding houses for the exclusive use of Jewish boys have actually been established 2. In the case of public elementary schools it was necessary Public to make more stringent provisions upon this subject, because tary the Education Act of 1870 made attendance at these soiiools. schools compulsory for all childi-en whose education was not otherwise provided for by their parents. It was therefore enacted that no child should be compelled to ' 32 & 33 Vict., cap. 56, sec. 19, and see also 36 & 37 Vict., cap. 87, sec. 7. ' See In re the Endowed Schools Act, 1869, »» re Christ's Hospital (1890), L.R 15 A.C. 172, esp. pp. 181-3. 2l6 THE JEWS AND THE ENGLISH LAW attend or abstain from attending any Sunday school or place of religious worship, and that any parent may with- draw his child from any religious observance kept or religious instruction given in the school, and also from attendance at the school upon any day exclusively set apart for religious observance by the religious body to which he belongs. In order to make the right of withdrawal from religious instruction effective it was further provided that such instruction should only be given at the beginning or the end of the school hours at times to be inserted in a time-table, which must be approved by the Board of Education^, which last provision is sufficient to prevent the sacrifice of secular to religious education by devoting too large a proportion of the school hours to the latter. These provisions apply to all public elementary schools, and in the case of those provided by a local authority it is further ' 33 & 34 Vict., cap. 75, sec. 7, the words of which are : " (i) It shall not be required, as a condition of any child being admitted into or continuing in the school, that he shall attend or abstain from attending any Sunday school or any place of religious worship, or that he shall attend any religious observance or any instruction in religious subjects in the school or elsewhere, from which observance or instruction he may be withdrawn by his parent, or that he shall, if withdrawn by his parent, attend the school on any day exclusively set apart for religious observance by the religious body to which the parent belongs. " (2) The time or times during which any religious observance is practised or instruction in religious subjects is given at any meeting of the school shall be either at the beginning or at the end, or at the beginning and the end of such meeting, and shall be inserted in a Time- table to be approved by the Education Department, and to be kept permanently and conspicuously affixed in every school-room ; and any scholar may be withdrawn by his parent from such observance or instruction without forfeiting any of the other benefits of the school. (See also sec. 74 (2).) "(3) The school shall be open at all times to the inspection of any of Her Majesty's Inspectors, so, however, that it shall be no part of the duties of such inspector to inquire into any instruction in religious subjects given at such school, or to examine any scholar therein in religious knowledge or in any religious subject or book." Provision for the examination of children in religious subjects is made in sec. 76, which, however, is applicable only to non-provided schools. THE CIVIL EIGHTS OP ENGLISH JEWS 217 enacted by section 14 of the Act of 1870, commonly known The as the Cowper-Temple clause, that " no religious catechism Temple or religious formulary which is distinctive of any particular clause, denomination shall be taught in the school." This section is not in practice any valid protection for Jewish children, because the Board of Education has held that under it, although the catechism of any particulai- Christian sect may not be taught, yet the Lord's Prayer and the Apostles' Creed (being common to all Christian sects) may be subjects of instruction, and that portions of the Bible, including of course the New Testament, may be read, and such explana- tions given as are conformable to the principles of the Christian religion. On the other hand, under the conscience and time-table clause ah-eady referred to this religious instruction can only be given at the beginning or end of the school hours, and Jewish parents have an absolute right to withdraw their children while the lessons in religion are being taught. As in most schools separate instruction in secular subjects is given to children withdrawn from the religious teaching or observances, if Jews desire that their children attending such schools shall receive instruction in their own religion, it is necessary for them to supply it at their own expense, and in hours not included in the regular school time. This is done in many of the London public elementary schools by the Jewish Religious Education Board, and there are similar Jewish bodies performing the same duty in Manchester and other towns where there is a large Jewish population. In non-provided or voluntary schools the religious Eeligious instruction shall, as regards its chai-acter, be in accordance ^0^ jn with the provisions (if any) of the trust deed relating °°"". , , thereto, and shall be under the control of the managers ^. schools. In order that the provisions of the trust deed may be effectually executed, it is enacted that, though the managers of such schools are bound to carry out the directions of the local education authority as to secular education, yet those » Education Act, 190a (a Edw. VII, cap. 4a), sec. 7 (6). 2l8 THE JEWS AND THE ENGLISH LAW dii-ections shall not be such as to interfere with reasonable facilities for religious instruction during school hours. And further, the managers are given the power of dismissing a teacher without the consent of the local education authority on grounds connected with the giving of religious instruction in the school ^. There are several such Jewish schools to be found in London and the larger provincial centres, and it should be remembered that to these schools also the conscience and time-table clauses are strictly applicable. Higher PubHc higher grade and technical schools are schools either technical provided by or receiving pecuniary assistance from local schools, authorities under various recent Acts of Parliament, which provide a higher education than that given in the public elementary schools. Section 4 of the Education Act, 190a, enacts with regard to the religious instruction to be given at these schools as follows : " (i) A council shall not require that any particular form of religious instruction or worship, or any religious catechism or formulary which is distinctive of any particular denomination, shall or shall not be taught, used, or practised in any school, college, or hostel aided but not provided by the council, and no pupil shall on the ground of religious belief be excluded from or placed in an inferior position in any school, college, or hostel provided by the council, and no catechism or formulary distinctive of any particular religious denomination shall be taught in any school, college, or hostel so provided, except in cases where the council, at the request of parents of scholars, at such times and under such conditions as the council think desirable, allow any religious instruction to be given in the school, college, or hostel, otherwise than at the cost of the council: provided that in the exercise of this power no unfair preference shall be shown to any religious denomi- nation. " (2). (a) A scholar attending as a day or evening scholar shall not be required, as a condition of being admitted into or remaining in the school or college, to attend or abstain ' Education Act, 1902, sec. 7 (i) (o) and (c). THE CIVIL EIGHTS OF ENGLISH JEWS 219 from attending any Sunday school, place of religious worship, religious observance, or instruction in religious subjects in the school or college or elsewhere ; and "(b) The times for religious worship or for any lesson on a religious subject shall be conveniently arranged for the purpose of allowing the withdrawal of any such scholar therefrom." The law as to poor-law schools has little interest for the Poor-law Jews, who rightly pride themselves on saving their poorer ^° °° " brethi-en from resorting to the workhouse ; so that there are comparatively few children in workhouse schools ; where, however, Jewish children are dependent on the union, the guardians may avail themselves of the pro- visions of the Poor Law (Certified Schools) Act, 1862, enabling them to send a poor child to any school certified as fit for the purpose, but by the Act no child may be sent to any school which is conducted on the principles of a religious denomination to which he does not belong, and the Poor Law (now the Local Government) Board, if of opinion that any person is aggrieved by any child being so sent or kept at any school, may order its immediate removal ^. Reformatory schools are established for the better training Eeforma- of youthful ofienders, i.e. of persons under the age ofg^^^jg^ sixteen years convicted of an ofience punishable with penal servitude or imprisonment. Such persons may by the court or justices be committed to a certified reformatory school, but in choosing the school regard must be had to their religious persuasion, which should be ascertained and specified by the committing authority in the order of committal. Moreover, they are to be allowed to receive visits from a minister of their religious persuasion at certain fixed hours of the day for the purpose of receiving religious assistance and instruction in the principles of their religion. There is also a further provision entitling the parent, guardian, or nearest adult relative to procure the removal 1 25 & a6 Vict., cap. 43. schools. 220 THE JEWS AND THE ENGLISH LAW of a youthful offender from one reformatory school to another conducted in accordance with his religious per- suasion, by applying to the court or magistrates by whom the sentence was pronounced, provided that the application is made before the offender has been in the school thirty days, and that the managers of the school named by the applicant are willing to receive the offender^. The Secretary of State has also power to remove an offender from one reformatory school to another, or discharge him altogether. Industrial Industrial schools differ from reformatory schools in that they are established not for the punishment and reform of offenders, but for the protection of children whom the benefits of the ordinary system of education fail to reach. To these schools magistrates are empowered to commit children for a variety of reasons enumerated in the Industrial Schools Act, the provisions of which in relation to the choice of a school conducted in accordance with the pai-ents' religious persuasion, the visiting of the child by a minister of its own denomination, and the right of the parent or nearest adult relative to procure the removal of the child to anothei" school conducted in accordance with the child's religious belief, are precisely the same as those already set out in the case of reformatory schools ^. It has been found expedient to establish a Jewish Industrial School for boys at Hayes in Middlesex and a second Jewish Industrial School for girls has recently been organized. ' Eeformatory Schools Act, 1866 (29 & 30 Vict., cap. 117, sees. 14, 16). ' See The Industrial Schools Act, 1866 (29 & 30 Vict., cap. 118, sees. 18, 35, and ao). (See Model rules, Dumsday and Mothersole, p. 715.) IX. THE POLITICAL RIGHTS OF ENGLISH JEWS. When considering the acquisition of political rights by The the Jews, credit is often given to our legislators for never °^ t^^"^ having enacted laws with the express object of depriving certain Jews of all share of political power. The gratitude for cause of this mercy need not be excessive, for, without any special Jewish legislation, the Jews were effectually excluded from such abilities, power under the law as it existed at the time of their return, nor were the governing classes at all hasty in removing disabilities which, if not intentionally imposed, were at least deliberately maintained. The disabilities in question were occasioned by the necessity for those engaged in public affairs to take certain oaths, known as the oaths of allegiance, supremacy, and abjuration, of which it becomes necessary to give a more particular account. Until the period of the Eeformation the oath of allegiance The oath appears to have been bound up with the rendering of homage ^^^ ^^'j and fealty, but when the Church of England repudiated all supre- connexion with the Roman Pontiff and acknowledged the ™*°^" king as its supreme head, it was thought necessary to frame a new oath of allegiance, embodying also an oath of supremacy or recognition that the king to whom allegiance was sworn possessed sovereign power, and was himself subject to no foreign potentate, ecclesiastical or lay. It will be unnecessary to do more than mention the statutes on this subject passed in the reign of Henry VIH, namely, 25 Hen. VIII, c. 2a ; 2,6 Hen. VHI, c. 2 ; a8 Hen. VHI, c. 7 ; id., CIO; and ^5 Hen. VIH, c. i, because these were repealed during the short Papist revival under Queen Mary. More attention must be paid to the Act of Supremacy (i Eliz., c. i), the ninth section of which creates a new oath in terms as 222 THE JEWS AND THE ENGLISH LAW follows : " I, A. B., doo utterly testifie and declare in my conscience, that the Quenes Highnes is thonelye supreme governour of this realme and of all other her Highnes dominions and countreis, aswell in all spuall or ecclesias- tical! thinges or causes as temporall, and that no forreine prince pson prelate state or potentate hathe or oughte to have any jurisdiccon power superioritie preheminence or aucthoritee ecclesiasticall or spuall within this realme, and therefore I doo utterly renounce and forsake all forraine jurisdiccons power supiorities and aucthorities, and doo promise that from hensforthe I shall beare faith and true allegiance to the Quenes Highnes her heires and lawfull successoures, and to my power shall assist and defende all jurisdiccons preheminences privileges and aucthorities granted or belonging to the Quenes Highnes her heires and successoures or united or annexed to thimperiall crowne of this realme : So helpe me God and by the contentes of this booke." Persons The Oath was not imposed upon all subjects, but only upon on whom ecclesiastical persons and those who held any temporal imposed, office, such as a judge, justice, or mayor, and the penalty for refusal to take the oath was forfeiture of the office, whether ecclesiastical or lay, in respect of which it was imposed. Four years later the obligation to take this oath was extended to all persons in holy orders, holders of a degree in any university, schoolmasters, and persons engaged in practising the law ; and the penalty for refusing to take the oath was increased, being made for the first offence the same as under the statutes of praemunii-e and for the second the same as for high treason ^. A new After the failure of the Gunpowder Plot in 1 605 a new °b*d"°^ oath was framed for the express purpose of repressing or aiiegi- Popish recusants. It is a long and wordy oath, called in ance, i o . ^j^^ statute Creating it the oath of obedience, and is con- tained in five clauses, embracing in itself oaths of allegiance, supremacy, and abjuration of the Pope's authority. It did ' 5 Eliz., c. I, 83. 5-1 1. THE POLITICAL EIGHTS OF ENGLISd JEWS 223 not abolish or supersede the oath prescrib^jd by the Act of Supremacy, but was concurrent with it. and was often in popular language called the oath of allepjiance or abjuration, and in practice, at least after the padsing of the Act for administering the oath of allegiancp/ (7 Jac. I, c. 6), would be tendered and administered indtead of the earlier and less stringent form, "which became known as the oath of supremacy. The tenor of thjs new oath was as foUows : — "I, A. B., do truly F.nd sincerely acknowledge, profess, testify and declare m my conscience before God and the world, that our sovereign Lord King James is lawful and rightful King of this realm, and of all other his Majesty's dominions and countries ; and that the Pope neither of himself nor by any authority of the church or see of Rome, or by any other means with any other, hath any power or authority to depose the King, or to dispose any of his Majesty's kingdoms or dominions, or to authorize any foreign prince to invade or annoy him or his countries, or to discharge any of his subjects of their allegiance and obedience to his Majesty or to give license or leave to any of them to bear arms, raise tumults or to offer any violence or hurt to his Majesty's royal person, state or government, or to any of his Majesty's subjects within his Majesty's dominions. " (a) Also I do swear from my heart, That notwith- standing any declaration or sentence of excommunication or deprivation made or granted or to be made or granted by the Pope or his successors or by any authority derived or pretended to be derived from him or his see against the said King his heirs or successors or any absolution of the said subjects from their obedience : I will bear faith and true allegiance to his Majesty his heirs and successors, and him and them will defend to the uttermost of my power against all conspiracies and attempts whatsoever which shall be made against his or their persons, their crown and dignity, by reason or colour of any such sentence or declaration or otherwise, and will do my best endeavour to disclose and 224 THE JEWS AND THE ENGLISH LAW make known unto his Majesty, his heirs and successors all treasons and traitorous conspiracies which I shall know or hear of to be again trt him or any of them. " (3) And I do further swear That I do from my heart abhor detest and abjure as impious and heretical this damnable doctrine and oosition That princes which be excommunicated or deprived by the Pope may be deposed or murdered by their subjects ir any other whatsoever. "(4) And I do believe, and in n,^' conscience am resolved That neither the Pope nor any other person whatsoever hath power to absolve me of this oath or tmy part thereof, which I acknowledge by good and full authority to be lawfully ministred unto me and do renounce all pardons and dispensations to the contrary. " (5) And all these things I do plainly and sincerely acknowledge and swear according to these express words by me spoken, and according to the plain common sense and understanding of the same words without any equivo- cation or mental evasion or secret reservation whatsoever : and I do make this recognition and acknowledgment heartily willingly and truly, upon the true faith of a Christian. "So help me Godi." The oath The concluding words of the last paragraph, though directed undoubtedly obnoxious to Jews, could not have been against _ •' Popish framed with any intention of imposing a disability upon cusan s. ^j^gj^^ because, as we have seen, there were at that time no Jews known to be settled in the country. The words " upon the true faith of a Christian " were apparently inserted to effectually prevent any equivocation or mental reservation, which when these words were used would in the opinion of the Jesuit doctors themselves involve the penalty of mortal sin^. The oath itself was a piece of • 3 Jac. I, c. 4, s. 15. * A small book, either written or corrected by the Jesuit Garnet, called A Treatise on Equivocation, was found in the chambers of Francis Tresham, one of the Gunpowder Plot conspirators. This treatise lays it down that a man when called upon, as he thinks unjustly, to make THE POLITICAL RIGHTS OF ENGLISH JEWS 225 political sharp practice, and had been cunningly framed to injure the Roman Catholics, among whom there had long been considerable controversy as to the moral right of the Pope to depose a temporal prince. Those Catholics who refused the oath incurred the penalties laid down by the statute, while those who took it were rendered con- temptible by asserting to be damnable a doctrine which large numbers of their coreligionists were known to approve ^. At the time of the Revolution in 1688 the old forms The oaths of the oaths commonly called the oath of supremacy and "j^^^ ^nd the oath of allegiance were repealed, and the oaths were supre- macy recast so as to read as follows: — recast at " I, A. B., do sincerely promise and swear. That I will *f !j^e™^ be faithful and bear true allegiance, to their Majesties Kevoiu- King William and Queen Mary. So help me God," &c. '°°' (the oath of allegiance). " I, A. B., do swear That I do from my heart abhor, detest and abjure as impious and heretical that damnable doctrine and position, That princes excommunicated or deprived by the Pope, or any authority of the see of Rome may be deposed or murdered by their subjects or any other whatsoever. " And I do declare That no foreign prince person prelate state or potentate hath or ought to have any jurisdiction power superiority preeminence or authority ecclesiastical or spiritual within this realm. So help me God," &c. (the oath of supremacy) ^. Such were the forms of the oaths of* supremacy and a declaration or take an oath may lawfully equivocate by using ambiguous words or by reserving mentally a sense of the words used different from that actually expressed, and that even though he uses the words "without equivocation or mental reservation." But there is one exception, namely, that he cannot do this without being guilty of mortal sin if he brings his true faith towards God into doubt or dispute. (See Baron Alderson's judgment in Miller v. Solomons (1852), 8 St. Tr. N.S., p. 163.) 1 Dodd's Church History, Part V, Art. IV. " I Will. & Mary, c. 8, a. 12. See ibid., c. i, ss. 6 and 7. Q 226 THE JEWS AND THE ENGLISH LAW allegiance, nor was any change made in them, so far as our present subject is concerned ^, until the middle of the late Queen Victoria's reign, when the question of the right of Jews to sit in Parliament, which will be dealt with in greater detail later, was raised and decided. It may there- fore be seen that after the accession of William and Mary the most devout Jew could conscientiously take either or introduc- both of these oaths. However, after the death of James II oath of i^ 17°! ^^ See Hansard, Pari. Dei., and series, vol. 18, pp. 676 seq., 816-33, <=^^ ^^'^''is 1 180-1208, 1329 seq., 1450-1520, 1571-1610; vol. 19, pp. 39-49) i09-37, Jews. 156-86, and 289-300. 252 THE JEWS AND THE ENGLISH LAW sincerely in the presence of God profess, testify, and declare, upon the true faith of a Christian, That I will never exercise any power, authority, or influence which I may possess by virtue of the ofEce of to injure or weaken the Protestant Church as it is by law established in England, or to disturb the said Church or the Bishops and Clergy of the said Church in the possession of any rights or privileges to which such Church or the said Bishops and Clergy are or may be by law entitled." This Declaration was required to be made by every person elected to any municipal office " within one calendar month neost before or upon his admission" to any such office. It had also to be subscribed by every person admitted into any office, employment or place of trust under the Crown, but in such case it might be done " within six calendar months after his admission to such Office, Employment or Place of Trust." Moreover, naval and military officers below the rank of Rear- Admiral and Major-General, and persons engaged in the Customs, Revenue, or Post Office, were expressly exempted from the necessity of making the Declaration. Omission to make the Declaration rendered the election or appointment of all persons required to make it wholly void. It is obvious that a conscientious Jew would not subscribe the Declara- tion ; indeed the status of the Jews was rendered more unfavourable by the new Act. When in future the Annual Indemnity Act was passed 1, words were added extending the time for making the Declaration in the same way as the time for taking the sacrament had been previously extended. But though the Indemnity Act might assist a Jew to hold an office under the Crown, it in no way enabled him to be elected to any post in a municipal corporation, because in that case the Declaration had to be subscribed at latest upon admission to the office ^. ' These Acts -were still annually passed until the Promissory Oaths Act of 1868 (31 & 32 Vict., c. 72) rendered them unnecessary. The last Indemnity Act is 30 & 31 Vict., c. 88. - See Bluut's History of the Joes, p. 113 (note). THE POLITICAL RIGHTS OF ENGLISH JEWS 253 In the folio-wing year the Roman Catholic EeHef Act, Belief 1829 (10 Geo. IV, c. 7), removed most of the political IJ^^^'" disabilities imposed upon Roman Catholics, to abolish Catholics •which Lord John Russell's measure had done nothing. Quakers Quakers, Moravians, and Separatists also objected to the "^ ^^^9 new Declaration, made, as it was expressed to be, in the respec- presence of God and on the true faith of a Christian ; for these ^'^^^ly- expressions made the Declaration seem to partake of the nature of an oath. For their benefit the Acts for the reHef of Quakers, Moravians, and Separatists elected to municipal offices (i & 3 Vict., c 5, and ibid., c. 15) were passed in 1837. These Acts substituted in the case of persons holding these beliefs a new Declaration which omitted the obnoxious phrases ; but it was not for some time that a similar measure of relief was granted to the Jews. In 1 835 a Jew, Mr. David Salomons, was elected Sheriff of Declara- London, which is not only a city or municipality but also t^n'by'' a county of itself. As sheriff of a city or corporation it Sheriffs would have been necessary for him to make the Declaration 1835. imposed by the new Act (9 Geo. IV, c. 17) before or upon admission to the office, but a sheriff of a county holding no municipal office, and therefore able to avail himself of the provisions of the Indemnity Act, was in practice under no such obligation. The new Sheriff as a Jew was unwilling to make the Declaration, and to solve the difficulty an Act of Parliament (5 & 6 Will. IV, c. 28) entitled "An Act for removing doubts &s to the Declaration to be made and oaths to be taken by persons appointed to the office of Sheriff of any City or Town being a County of itself," was passed. The Act declared that no one elected to the office of sheriff of any city or town being a county of itself should by reason thereof be liable to make or subscribe the Declara- tion. Parliament was thus willing to remove the hardship of the particular case which had actually arisen, but was not yet prepared to grant a general measure of relief to Jews desirous of filling offices in corporations. Lord Campbell, who, as Attorney General, had been responsible man. 254 THE JEWS AND THE ENGLISH LAW for the Act, declared in the House of Lords ten years afterwards that he had desired to introduce a more com- prehensive measure, but that he felt certain that if he had extended the Bill a single line further it would have been rejected^. Mr. Salo- This small concession was wholly inadequate to satisfy refus^ed the legitimate aspirations of the Jews in general, or of admission -^j- Salomons in particular ; for it was the latter 's fortune office'^ to play the foremost part in fighting the battle of religious of Alder- equality, both for himself and his co-religionists. In mnn_ M J ' '-^ December, 1835, being already Sheriff, Mr. Salomons was elected Alderman for the ward of Aldgate, in the City of London, and presented himself to the Court of Aldermen for admission to the office. It was demanded of him whether he had signed the Declaration required by the Act of 1829 within the space of one month, to which he answered that he had not. Whereupon it was demanded whether he would then make and subscribe the said Declaration; to which he declined to say whether he would or not, but required the Court to admit him as Alderman. This the Court refused to do, and declared his election null and void. A precept for a new election was issued, and another candidate elected to fiU the vacancy. Against this newly-elected Alderman proceed- ings in the nature of " Quo warranto " were taken. These proceedings were successful in the Court of King's Bench, the court of first instance for such matters, which held that the Aldermen were wrong in refusing to admit Mr. Salomons to the office to which he had been elected. ' Hansard's Pari. Deb., 3rd series, toI. 78, p. 526 ; and Campbell's Lives of the Chancellors, VIII, p. 155. Lord Campbell's reluctance was justified by the state of feeling in the House. Indeed two years later when the Bill for relief of Quakers, MoraTians, and Separatists, elected to municipal offices was sent into committee, Mr. Grote moved that it be an instruction to the committee to extend the relief to persons of all religious denominations, express mention being made of the Jews ; the motion was rejected by 172 to 156 votes (Hansard, Pari. Deb., 3rd series, vol. 39, pp. 508-30). THE POLITICAL RIGHTS OF ENGLISH JEWS 255 A writ of error was, however, brought and the judgment of the Court of King's Bench was set aside by the Court of Exchequer Chamber. The Court held that the words "upon admission" did not mean "after," but "upon the occasion of" or "at the time of admission," and accordingly that Mr. Salomons who had neither made the Declaration nor expressed his willingness to make it was not entitled to be admitted, and that the election of his successor was regular and legal ^. Mr. Salomons was not yet beaten ; in 1844 he was again The elected Alderman, this time for Portsoken Ward, and in ^^^^^ the following year, mainly in consequence of his exertions, abilities Lord Chancellor Lyndhurst introduced, and carried without j^^t^^f^ opposition in the House of Lords, the Jewish Disabilities 1845. Removal Act of 1845. ^ ^^^ House of Commons its conduct was entrusted to Sir Robert Peel, and though not allowed to pass unopposed, it was carried by a substantial majority^. The Act permitted every person of the Jewish religion upon admission to any municipal office to sub- stitute for the former the following new Declaration : " I, A. B., being a person professing the Jewish Religion, having conscientious scruples against subscribing the Declaration contained in an Act passed in the ninth year of the reign of King George the Fourth, intituled an Act for repeahng so much of several Acts as imposes the necessity of re- ceiving the Sacrament of the Lord's Supper as a qualification for certain offices and employments, do solemnly, sincerely, and truly declare. That I will not exercise any power or authority or influence which I may possess by virtue of ' See the Queen v. Humphery (1838), 3 N. & P. 681 and (1839), 10 A. & E. 335- ' 8 & 9 Vict., c. 52. See Hansard, Pari. Deb., 3rd series, vol. 78, pp. 515 seq., and vol. 82, pp. 622 seq. A similar measure had been proposed by Mr. Divett (also at the instigation of Mr. Salomons in 1841) and, though it passed the House of Commons, it had been thrown out by the Lords by g8 to 64 on the third reading, having been read a second time by a majority of I. See Hansard, Pari. Bel. , 3rd series, vol. 56, p. 504 ; ibid., vol. 57, p. 84 ; and ibid., vol. 58, pp. 1048 and 1449. 256 THE JEWS AND THE ENGLISH LAW the office of to injure or weaken the Protestant Church as it is by law established in England, nor to disturb the said Church or the Bishops and Clergy of the said Church in the possession of any rights or privi- leges to which such Church or the said Bishops and Clergy may be by law entitled." Mr. Salomons was again elected an Alderman in the year 1847, and had the satisfaction of being admitted upon making the new Declaration. The Oaths The Oaths Act of 1858 (21 & 23 Vict., c. 48) extended Act and ^.^g benefit of the Jewish Disabilities Removal Act of 1845, theJewish _ _ _ ^ Belief Act granted to persons professing the Jewish religion, to all other ° ^ ^ ■ cases in which the Declaration imposed by the Act of George IV was required to be taken, and the Jewish Relief Act of the same year (21 & 22 Vict., c. 49) enabled Jews to omit the words " upon the ti'ue faith of a Christian " when taking the newly-framed Oath of Allegiance, Supremacy, and Abjuration ; so that all offices under the Crown other than those expressly excepted, as well as municipal offices, were thenceforth thrown open to the Jews. The Act also contained a proviso that any right of presentation to an ecclesiastical benefice which might be attached to any office held by a person professing the Jewish religion should be exercised by the Archbishop of Canterbury for the time being. Subse- Finally, in the year 1866, the obligation to make these ie"tsia- Declarations which had by the various statutes been im- tion. posed upon all who had been elected to any office in a corporation or appointed to any place of trust or office under the Crown, was removed by the Qualification for Offices Abolition Act of that year \ and the statutes them- selves having thus been rendered nugatory were formally repealed by the Promissory Oaths Act of 187 1 2. In conse- quence at the present time the only obligation incumbent ' 29 & 30 Vict., c 22 ; see aho the Office and Oath Act, 1867 (30 & 31 Vict., c. 75, s. 5). ^ 34 & 35 Vict., c. 48. THE POLITICAL RIGHTS OF ENGLISH JEWS 257 upon persons about to enter upon any of these offices is the taking of the simplified form of the Oath of Allegiance, which has already been set out above, and the official oath, or if the office be a judicial one, the judicial oath as prescribed by the Promissory Oaths Act of 1868'. Neither of these oaths contains anything objectionable to Jews ; the terms of the official oath are, " I do swear that I will well and truly serve His Majesty, King Edward, in the office of . So help me God." And the form of the judicial oath is, " I do swear that I will well and truly serve our Sovereign Lord, King Edward, in the office of , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill wiU. So help me God." Moreover, persons permitted by law to make a solemn affirmation or declaration instead of taking the oath may do so by substituting the words " solemnly, sincerely, and truly declare and affirm " for the word " swear," and omitting the words, " So help me God." Thus since the year 1845 a Jew has been able to be Taking elected a member of a municipal corporation, and since gjVnia of 1858 to hold an office or place of trust under the Crown, office to But there still existed a minor disability as regards religious municipal officers, which was not removed for another worship, quarter of a century. The Act which repealed the Occasional Conformity Act — a measure passed during the ascendancy of the High Church party in the latter part of Queen Anne's reign with the avowed pui-pose of ex- cluding Protestant Dissenters from municipal and other offices — and the Schism Act of 17 13 — a still more recent and intolerant piece of legislation — in return for the relief thus afforded, created a new disability, which without giving any protection to the Established Church was calcu- lated to foster feelings of irritation and grievance in the hearts of those against whom it was aimed. The Act ' 31 & 32 Vict., c. 72, and see supra, p. 228 (note). S 258 THE JEWS AND THE ENGLISH LAW contained a clause providing that if any mayor, bailiff, or other magistrate should knowingly or -wilfully resort to or be present at any public meeting for religious worship, other than of the Church of England as by law established, in the gown or other peculiar habit, or attended with the insignia of his office, he should on conviction be disabled from holding any such office, and adjudged incapable of bearing any public office or employment what- soever'. This enactment was directed against all Non- conformists, whether Protestants, Roman Catholics, or Jews; and such store was placed upon its efficacy that when the disabilities of Roman Catholics were finally removed in 1829, instead of being repealed it was actually re-enacted and extended, for whereas the Act of George the First applied only to England and Wales, the pro- hibition was extended to all parts of the United Kingdom, and a penalty of £100 was now imposed for every breach of the prohibition in addition to the forfeiture of office as provided by the earlier Act^. It was not till 1867 that the Office and Oath Act of that year repealed these futile and offensive enactments'. Device of An ingenious device, which for some years was resorted DUaonters to for the purpose of persecuting Protestant Dissenters in for rcfus- t,he City of London, was never employed against the Jews serve the on account of their exclusion from the freedom of the City, to which reference has been made in the preceding chapter. By the Corporation Act of 166 1 none could fill a corporate office who had not within one year next before ' 5 Geo. I, c. 4 ; the Occasional Conformity Act is 10 Anne, c. 6 (Kuff., c. 2), and the Schism Act 13 Anne, c. 7 (12 Anne, st. 2, c. 7, Euff.). ' See s. 25 of the Roman Catholic Relief Act, 1829 (10 Geo. IV, c. 7). ' 30 & 31 Vict., c. 75, s. 4 ; see also 34 & 35 Vict., c. 116. The reason for their original institution is given by Sir Wm. Blackstone in a note to p. 54 of his Commentaries, vol. IV, as follows : " Sir Humphry Edwin, a lord mayor of London, had the imprudence soon after the Toleration Act to go to a Presbytei-ian meeting-house in his formalities ; which is alluded to by Dean Swift in his TaUi of a Tub under the allegory of Jack getting on a great horse and eating custard." office of sheriff. THE POLITICAL RIGHTS OF ENGLISH JEWS 259 his election taken the sacrament of the Lord's Supper according to the rites of the Church of England. In the year 1748 the Corporation of London made a by-law imposing a fine of £400 upon every person who being nominated by the Lord Mayor for the office of SheriflF declined to be a candidate, and of £600 upon every one who being elected by the Common Hall refused to serve the office. The fines were to be used for defraying the cost of the new Mansion House. Many Dissenters were nominated and elected to the office of SheriflF, although disabled from filling it by the Corporation Act, and in all cases the fines were exacted, more than £15,000 being obtained in this way. At length a Nonconformist named AUen Evans determined to test the legality of these pro- ceedings. In the year 1754, as many of his co-religionista had been before, he was elected SheriflF. Not having taken the sacrament within twelve months he was ineligible to serve the office, and he refused to pay the fine ; whereupon an action was brought against him by the City Chamberlain in the SheriflTs Couit, and he was in April, 1757, adjudged to pay the sum of £600, the amount of the fine, in addition to a sum of £174 10s. jd. for damages and costs. Mr. Evans then appealed to the Court of Hustings, but the appeal was dismissed and the original judgment affirmed, Mr. Evans being condemned to pay a further sum of £95 3s. od. as the costs of the appeal. Mr. Evans then brought the case before the court of the commissioners delegates, called the Court of St. Martin's, which on this occasion consisted of five judges of the superior courts ; the case was argued before them no less than three times, and at length, in 1763, they unanimously reversed the decision of the lower courts. The City Corporation then brought a writ of error in the House of Lords, which also decided in favour of Mr. Evans, upon the ground that the Tolei-ation Act enabled persons who came within its terms to abstain from taking part in the rites of the Church of England without committing any breach of law, and consequently s a, 26o THE JEWS AND THE ENGLISH LAW the plea of ineligibility for office on account of not having taken the sacrament was a good and lawful plea in answer to a claim for a penalty for refusing to serve. If the by-law was to have the effect, which the City contended it had, then it was a worse instrument of persecution than the Jesuits had ever used ; for the law made Dissenters ineligible for office, and the by-law punished them for not serving. As Lord Mansfield said in his speech in moving the judgment in the House of Lords: "If it could be supposed the city have a power of making such a by-law, it would entirely subvert the Toleration Act, the design of which was to exempt the Dissenters from all penalties ; for by such a by-law they have it in their power to make every Dissenter pay a fine of £600, or any sum they please, for it amounts to that. The pro- fessed design of making this by-law was to get fit and able persons to serve the office : and the plaintiff sets forth in his declaration that if the Dissenters are excluded, they shall want fit and able persons to serve the office. But were I to deliver my own suspicion, it would be, that they did not so much wish for their services, as for their fines. Dissenters have been appointed to this office, one who was blind, another who was bedridden; not, I suppose, on account of their being fit and able to serve the office. No; they were disabled both by nature and by law In the cause before your lordships the defendant was by law incapable at the time of his pre- tended election : and it is my firm persuasion that he was chosen because he was incapable They chose him that he might fall under the penalty of their by-law ^." ' Sir Thomas Harrison (Chamberlain of London) v. Evans, 1767, 3 Bro. P. C, p. 465 ; Lords' Journals, vol. 31, pp. 457, 458-9, 461, 470, 475 ; Cobbett, Pari. Hist., vol. 16, pp. 313-27 ; and a Burn., Ecd. Law, pp. 207-20. Similar by-laws had been made and acted upon to the prejudice of Dissenters in other parts of the countiy. Indeed as early as 1690, in the case of the Mayor of Guildford v. Clarke, the court decided that the defendant being a Protestant Dissenter was not liable to pay a fine of £zo imposed by a local by-law for refusing to serve tho ancient office of bailiff THE POLITICAL RIGHTS OF ENGLISH JEWS 26 1 As has been already indicated the Jews were exempt Jews not from this particular form of persecution, not on account Jj^^^g *° of any goodwill felt towards them by their Christian fines, neighbours, but because at that time it was impossible to nominate or elect Jews to the offices in question, because the freedom of the City, and consequently the burdens as well as the privileges which it entailed, was strictly denied them. The result of one measure of intolerance was thus the means of sheltering its victims from the consequences of other intolerant enactments. It has already been stated that in the Jewish Relief Act S. 3 of the of 1858, which threw open to Jews the right of holding jj^^^^f j^^^j office under the Crown by enabling them to omit the final of 1858, words of the qualifying oath, certain high offices, including jews from those of Lord Chancellor and Lord Lieutenant of Ireland, iioiding certain were expressly excepted. The exception was based upon high a similar reservation as regards Roman Catholics contained rgpe^ted in the twelfth section of the Catholic Relief Act of 1829 in 1871. (10 Geo. IV, c. 7), and is in the following words : " Nothing herein contained 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 Commissioner of the Great Seal of Great Britain or Ireland or the office of Lord Lieutenant or Deputy or other chief governor or governors of Ireland or Her Majesty's High Commissioner to the General Assembly of the Church of Scotland 1." But after the Office and Oath Act, 1867 (30&31 Vict., c. 75)had opened the Chancellorship of Ireland in that town (2 Vent. 247), but the effect of this decision was thought to have been annulled four years later by the ease of the King and Queen v. Larwood in which the defendant, though he pleaded the Corporation Act and that he was a Protestant Dissenter, was fined (though only five marks) for refusing to serve the office of Sheriff of Norwich to which he had been elected (i Ld. Raymond 29 and 4 Mod. 269). • ai & 22 Vict., c. 49, s. 3. 262 THE JEWS AND THE ENGLISH LAW to every subject of the Queen, this section, together with the two preceding ones, was wholly and unreservedly repealed by the Promissory Oaths Act of 1871 (34 & 35 Vict., c. 48, s. i), so that since that date every office, the throne alone excepted^ could legally be filled by a Jew, although the appointment of a Jew might be highly impolitic or improper, as, for instance, to the post of High Commissioner to the General Assembly of the Church of Scotland. A Jew There is, however, a widespread behef that a Jew cannot be^Lord' legally hold the ofiices of Lord Lieutenant of Ireland and Lieu- Lord Chancellor. This was, no doubt, the case until the Ireland year J 87 1, but since that time it has ceased to be so, and or Lord fcj^^g yiew, though still very generally accepted, rests upon ceiior. no sure foundation. It is argued that Roman Catholics cannot hold these ofiices ; therefore Jews, to whom the legislature has shown no greater favour than to Roman Catholics, cannot hold them either. But section la of the Catholic Relief Act, 1829, has never been expressly repealed, and still remains on the statute-book, and yet nevertheless there is high authority for saying that Roman Catholics are at the present time eligible for these offices, for the statutes imposing the qualifying oaths and declara- tions which Roman Catholics were unable to take and by virtue of which they were formerly excluded have been abrogated without any reservation, and there is no dis- ability directly imposed upon Roman Catholics by any Act of Parliament, nor should such disability be implied by words in Acts of Parliament which, while excepting certain offices from the relief granted in other cases, do not expressly create a new disability^. This at any rate is the efiect of the answer given by the late Lord Coleridge, when questioned as Attorney-General in the House of Com- ' The sections in question are lo Geo. IV, c. 7, s. 12, and 30 & 31 Vict., c. 62 ; the later Promissory Oaths Act of 1871 (34 & 35 Vict., c. 48) absolutely abolished the statutes imposing the obnoxious oaths and therefore by implication remoTed the disability which had been kept alive by the former Acts. THE POLITICAL EIGHTS OF ENGLISH JEWS 263 mons in 1873^ As to the status of Eoman Catholics in this matter, there does seem to be some doubt, owing to the sections concerning them being unrepealed, but iii the case of Jews there is hardly any room for doubt, and both Mr. Gladstone and Mr. Asquith in the course of the debate on the former's bill to remove the disabilities of Eoman Catholics to hold the offices of Lord Chancellor of Great Britain and Lord Lieutenant of teland, in 1891, asserted without contradiction or correction that there was no obstacle to the holding of the Lord Chancellorship by any one other than a Eoman Catholic, though he was a Jew, Mahomedan, Buddhist, or Hindoo I This Bill was not accorded a second reading, so that the doubt in case of Eoman Catholics has not been removed; but as to Jews it may bo stated that it is the accepted view of constitutional lawyers that since 1871 they labour under no such disability *. It should be added that the last section of the Jewish Ecciesi- Eelief Act of 1858 is still in force, and consequently that ^tr*^age a Jew holding office under the Crown is disabled from attached exercising any ecclesiastical patronage which would other- held by a Jew. ' Hansard, FarL Deb., 3rd series, vol. an, pp. a8o seq. When Lord Chief Justice he reaffirmed this view in his well-known charge to the jury in the case of the Queen v. Eamsay and Footo, saying : " But now, so far as I know the law, a Jew might be Lord Chancellor" (1883). 15 Cox C. C, P- 235- ' Hansard, Pari. Deb., 3rd series, vol. 349, pp. loi, 1733-99 j tlie passages referred to are at pp. 1749 and 1777. ' It would indeed be difficult to see on what foundation such a disability could now be based. Not on statute, for the section of the statute has been repealed, nor on common law on the ground that the Chancellor is the keeper of tlie King's conscience, and that as the King must by the Bill of Eights be a Protestant and by the Act of Settlement join in communion with the Chxirch of England, the Lord Chancellor as keeper of his con- science must likewise be a Protestant and a member of the National Church, for if this reasoning were sound not only would Protestant Dissenters be under a similar disability, but it would have been wholly unnecessary to expressly except this particular office iu the Acts for the relief of Eoman Catholics and Jews, if such persons were already incapacitated by tho common law. 264 THE JEWS AND THE ENGLISH LAW wise devolve upon him. The words of the section are as follows : — "Where any right of presentation to any ecclesiastical benefice shall belong to any office in the gift or appoint- ment of Her Majesty, and such office shall be lield by a person professing the Jewish religion, the right of presentation shall devolve upon and be exercised by the Archbishop of Canterbury for the time being ; and it shall not be lawful for any person professing the Jewish religion, directly or indirectly, to advise Her Majesty, or any person or persons holding or exercising the office of Guardians of the United Kingdom, or of Regent of the United Kingdom, under whatever name, style or title such office may be constituted, or the Lord Lieutenant of Ireland, touching or concerning the appointment to or disposal of any office or preferment in the Church of England or in the Church of Scotland ; and if such person shall offend in the premises, he shall, being thereof convicted by due course of law, be deemed guilty of a high misdemeanour, and disabled for ever from holding an)' office, civil or military, under the Crown^." The same disability is imposed upon Roman Catholics by the seventeenth and eighteenth sections of the Catholic Relief Act, 1829, but all other Dissenters (even though atheists or heathens) are entitled to exercise the ecclesiastical patronage belonging to any office which they may hold. ' 21 & 22 Vict., c. 49, 3. 4. 265 X. THE POLITICAL RIGHTS OF ENGLISH JEWS [continued). Theik Admission to Parliament. The history of the admission of the Jews to Parliament is so well known and has received so much attention from the writers on constitutional history and constitutional law that it will be sufficient to indicate here its main outlines. Immediately after the passage of the Catholic Relief Act, Mr. Robert 1839, efforts were made in Parliament for the complete jj^°*^^.^.j emancipation of the Jews from all civil and political Disabiii- disabilities. The leader of the movement was Mr. Robert I'sao-o'e.' Grant, who, on April 5, 1830, introduced into the House of Commons a Bill "to repeal the civil disabilities affecting British bom subjects professing the Jewish religion." Leave to bring in the Bill was granted by a majority of 1 8, and when it came up for second reading it was thrown out by a majority of 6^^. This was before the Reform Act of 1833. Mr. Grant reintroduced his measure in the reformed House of Commons and met with more success. Several petitions in favour of Jewish emancipation had been presented to the Houses of Parliament ^, and on April 1 7, 1833, Mr. Grant moved that the House of Commons should resolve itself into a committee of the whole House to consider the disabilities affecting Jewish subjects ; despite a protest from Sir Robert Inglis the motion was adopted without a division. In committee Mr. Grant moved "that it is ' See Hansard, Pari. Deb., and series, vol. 23, pp. 1287-1336, and ibid., vol. 24, pp. 784-814 ; the debates are interesting, as almost all the arguments for and against the Jev?s were used by the supporters or opponents of the Bill. ^ Hansard, Pari. Deb., 3rd series, vol. 15, pp. 310, 559 ; ibid., vol. 16, pp. 10, 725, 775, 973. . 266 THE JEWS AND THE ENGLISH LAW expedient to remove all civil disabilities at present existing affecting His Majesty's subjects of the Jewish religion, with the like exceptions as are provided with reference to His Majesty's subjects professing the Koman Catholic religion." When after debate the question was put, the "Ayes" re- sounded through the House, but the " Noes " were few. The minority did not challenge a division, and the resolution was agreed to^. Thus the Jews' Civil Disabilities Bill was again introduced; the second reading was carried by 159 votes to 5a ^, and the third reading by 189 to 5a ^, but the House of Lords refused the Bill a second reading by 104 votes to 54*. Nothing daunted, on April 24 of the fol- lowing year Mr. Grant again brought forward and carried, by 53 votes to 9, a motion to go into committee to consider the subject^, and the revived BiU was accorded a second reading in the Lower House by 123 votes to 32, and also a third reading after a motion for adjournment had been defeated by 50 votes to 14^. The dwindling numbers of the advocates of the Bill in the House of Commons and the lukewarm support which it received from the Government in power encouraged the House of Lords to again reject it, and by an increased majority, only 38 voting for and 130 against the second reading^. Late in the session of 1836 the Bill was again revived under the auspices of Mr. Spring Rice, the Chancellor of the Exchequer; but the second reading was not moved until August 3, when the House was so thin that it was in imminent danger of being counted out. The second reading was agreed to by 39 votes to 17. Having passed through the remaining stages, the Bill was sent up to the Lords and was read a first ' Hansard, Pari. Dei., 3rd series, vol. 17, pp. 205-44. ' Ibid., vol. 18, pp. 47-59. ' Ibid., vol. 19, pp. 1075-82. For the committee stage see vol. 18, p. 1251. * Ibid., vol. 20, pp. 221-55. ' Ibid., vol. 22, p. 1372. ° For the second reading sec Hansard, vol. 23, p. 1158, and ibid., p. 1349, for the committee stage, and vol. 24, p. 382, for tlio third reading. ' Ibid., vol. 24, pp. 720-31. THE POLITICAL EIGHTS OF ENGLISH JEWS 267 time on August 15, but on account both of the lateness of the session and the poor support it was likely to receive, the second reading was never moved, and the prorogation took place on the 30th of that month ^. A general and comprehensive measure was not again 1836-47. inti-oduced, for the advocates of equal rights for the Jews m^ures recognized that their cause had not sufficient popular of relief suppoi-t to overcome the resistance of prejudiced and tical dis- persistent opponents who could usually count upon a*^^^^*^®^- majority of votes in the Upper House. They therefore wisely confined their effiDrts to obtain gradually and by small instalments the end they had in view — a method so frequently adopted in the making of the English consti- tution and so peculiarly dear to the English people. The result was the difierent enactments, already enumerated, altering the oath and other methods of qualification, so as to open municipal and other offices to members of the Jewish faith, but none of these statutes had any bearing upon a Jew's right to sit in Parliament. At length the question became one of practical politics by the return of Baron Lionel de Rothschild as one of the Members for the City of London at the General Election of 1847. At that time before a member could take his seat or 1847. vote, he was required to take three several oaths : the oath j^l^^ ^ of allegiance, the oath of supremacy, and the oath of child Gloctsd to abjuration. The tenour of these oaths has been already represent explained, and, as has been seen, though a Jew might t^^ city of conscientiously take the first two, he could not with Parlia- any sense of decency or propriety pronounce the words ™'^'^*- " upon the true faith of a Christian," which concluded the oath of abjuration. Moreover, it was customaiy to administer all these oaths upon the New Testament, which by itself would have debarred a conscientious Jew from taking any of them. This form of administration was not, however, ordained by any statute then in force and might upon occasion be waived or altered by resolu- 1 Hansard, voL 35, pp. 865-75, 1209, 1216, 1318. 268 THE JEWS AND THE ENGLISH LAW tion of tho House in favour of any particular member or class of members, though such an indulgence was a matter of favour and not of rights. The House, however, had no power to waive the oaths themselves or to alter their form, for the statute (i Geo. I, st. a, c. 13, ss. 16, 17) expressly enacted that no one should vote in the House of Commons or sit there during any debate until he had taken the oath of abjuration, and imposed a penalty of £500 as well as several important disabilities upon any one who should presume to vote without having taken the said oath ^. These provisions being laid down by statute could not be removed or dispensed with .by a single branch of the legislature, but only by an overriding or repealing Act of ParHament. 1847-48. Accordingly in December, 1847, the Prime Minister, Lord John Lord John Russell, who happened to be one of Baron de Jewish Rothschild's colleagues in the representation of the City P'^'^l^",,' of London, took precisely the same course as Mr. Grant ties Bill. 5 r ./ _ had taken in 1833, and the House of Commons, having resolved itself into committee, moved a resolution in the same terms as that adopted fourteen years earlier. The resolution was agreed to by 357 votes to i85, the increased numbers in the division showing the increased interest aroused ^. The Jewish Disabilities Bill, which placed Jews ' In 1833, Mr. Joseph Pease, the Quaker member for South Durham, had been allowed to make a solemn affirmation instead of taking the oath ; this was by virtue of the Statute 2a Geo. II, c. 46, s. 36, and earlier statutes enabling Quakers to substitute an affirmation for an oath In all cases where an oath was required, thus including promissory as well as juridical oaths (see Hansard's Pari. Deb., 3rd series, vol. 15, pp. 387, 476, 639. Mr. Pease had even been allowed to omit the words " on the true faith of a Christian," to which he objected as being unnecessary in the same way as if they had been "on the true faith of a gentleman" (see Hansard, vol. 113, p. 508), but then the Acts prescribed the form of the oath, but not that of the affirmation which might be substituted. ^ But there was no provision here or elsewhere for vacating the seat of a member who omitted to take the oath of abjuration, if he did not attempt to exercise the power of voting. See May's Pari. Practice, p. 158. ' Hansard, Pari. Deb., 3rd series, vol. 95, pp. 1234-1331, 1356-98. THE POLITICAL EIGHTS OF ENGLISH JEWS 269 on the same footing as Roman Catholics, was subsequently- brought in and carried through the House of Commons, 277 members voting for and 304 against the second reading, but thrown out in the House of Lords by a majority of 35 ; 135 lords voting for and 163 against the second reading^. In the following session Lord John Russell brought foi"ward '^49- another measure with a similar object, but confined its scope Eusseii's to an alteration of the parliamentary oath in favour of Jews. ^^■'''»- The Bill which was known as the Parliamentary Oaths Bill OathsBill. was successfully steered through the House of Commons, being carried on the second reading by 375 votes to 185, and on the third by 373 to 306, but it was again wrecked in the Lords, who refused it a second reading by 95 to 70 ^. After the failure of this measure Baron de Rothschild '^so- vacated his seat by applying for and receiving the steward- Eoths- ship of the Chiltern Hundreds. He offered himself for ?^'^^ ^ ^ having re- re-election and was returned by a large majority. The signed and Government, however, brought in no Bill to enable him re-elected to take his seat, and on July 36, 1850 he came to the table attempts of the House of Commons, and requested to be sworn upon tig seat. the Old Testament, whereupon the Speaker directed him to withdraw. After a long debate, including an adjournment and three several divisions, this request was conceded. The next day the bai'on again came up to be sworn ; the oaths of allegiance and supremacy were duly administered on the Old Testament, but when the oath of abjuration was tendered the newly elected member refused to repeat after the clerk the words " upon the true faith of a Christian," and upon ^ Hansard, vol. 95, p. 1421 ; ibid., vol. 96, pp. 220-83, 460-540 ; ibid., vol. 97, pp. 1213-50 ; and ibid., vol. 98, pp. 1329-1409. Of the debate in the Lords the Earl of Malmesbuiy in his Memoirs writes : "The Jew Bill was thrown out in the Lords by a majority of 35. Mr. Lionel de Eothschild and his brother Anthony were present. I never saw the House so full. The Eothschilds stood like elder sons of Peers on the steps of the throne, and would not even retire when the division took place " (^Memoirs of an Ex-Minister, vol. I, p. 230). " Hansai-d, voL 102, pp. 1 188-1202 ; ibid., vol. 104, pp. 1395-1449 ; ibid., vol. 105, pp. 431-66, 670-83, 1373-1434; vol. 106, pp. 871-922. 270 THE JEWS AND THE ENGLISH LAW their being read said, " I omit these words as not binding upon my conscience," and concluded with the words, " So help me God." He was then directed to withdraw. A motion was subsequently carried by 166 votes to 92 "that the Baron Lionel Nathan de Rothschild is not entitled to vote in this House or to sit in this House during any debate, until he should take the Oath of Abjijration in the form appointed by law." It was further formally resolved by 142 votes to 106 to take the form of the oath of abjuration into consideration during the next session with a view to the relief of persons professing the Jewish - religion^. 1851. The following Session, in pursuance of this resolution, Eusseirs" '^^ ^^*^ °^ Abjuration (Jew) Bill was introduced by the Oath of Government. It provided that whenever any of her ttouTjew) Majesty's subjects professing the Jewish religion shall Bill. present himself to take the oath of abjuration the words " upon the true faith of a Christian " shall be omitted from the oath, and passed the House of Commons, though the majority on the second reading was only 25, but was rejected in the Lords by 144 votes to 108 2. Mr. Salo- In the meantime Mr. David Salomons had at a bye- ports to"^' election been returned to the House of Commons as member take the for the borough of Greenwich, and on July 18, 1851, the Abjuration •i^'J after the rejection of the Government's bill by the without Upper House, attended at the table for the purpose of T)roiiou.iic* AX' 1.1. ing its being sworn. Upon the New Testament being tendered ^°H to him by the clerk, he requested to be sworn on the Old Testament, which being reported to Mr. Speaker, Mr. Speaker asked him why he desired to be sworn upon the Old Testament ; he answered because he considered it * Cn. Jour., vol, CV, pp. 584, 590, 612; Hansard, vol. 113, pp. 298-333, 396-453, 486-533, 769-817. ^ Hansard, vol. 115, pp. 1006-19, '°3° > ibid., vol. 116, pp. 367-412 ; ibid., vol. 117, pp. 1096-1102 ; and ibid., vol. 118, pp. 142-7, i88, 859-909. "Jew Bill passed second reading House of Commons by 25 ; 202 to 177. Thiswill encourage the Peers" (Lord Malmesbury's Memoirs, vol. I, p. 283). THE POLITICAL EIGHTS OF ENGLISH JEWS 271 binding on his conscience; Mr. Speaker then desired the clerk to swear him upon the Old Testament : there being no debate and no division such as had taken place in the case of Baron de Rothschild a year previously. The clerk then handed him the Old Testament, and tendered the oaths. The oaths of allegiance and supremacy having been duly taken, when the oath of abjuration was administered Mr. Salomons read as far as the words " upon the true faith of a Christian," which he omitted, and concluded with the words "So help me God." He then read the following declaration from a paper which he had in his hand, and then pushed over to the clerk at the table : " I have now taken the oaths in the form and with the ceremonies that I declare to be binding on my conscience, in accordance with the statute i & 2 Vict., c 105. I now demand to subscribe to the oath of abjuration and to declare to my property qualification." The omission of the words of the oath being reported to Mr. Speaker, he desired Mr. Salomons to withdraw. "He thereupon retired from the table and sat down upon one of the lower benches; upon which Mr. Speaker informed him that, not having taken the oath of abjuration in the form prescribed by the Act of Parliament and the form in which the House had on a former occasion expressed its opinion that it ought to be taken, he could not be allowed to remain in the House, but must vnthdraw: and he withdrew accordingly." A short discussion of the subject, which was adjourned to the following Monday, July ai, ensued 1. On the resumption of the debate on that day Mr. Salomons Mr. Salo- took his seat in the House. The Speaker rose and desired ™tes his him to withdraw ; but the request fell upon deaf ears, and, seat in the amidst a scene of great confusion, the Speaker appealed to refuses to the house to support the chair. The Prime Minister, '^"'i Hansard, vol. 150, pp. 336-54, 430-443. ' 18 Com. Jour., p. 59. Sir Joseph Jekyll was Chief Justice of the County Palatine of Chester, and his absence on circuit was the reason for his not having taken the oaths. See Cobbett, Pari. Hist, vol. VII, p. 57. U Commons' reasons. 290 THE JEWS AND THE ENGLISH LAW House one whom that House was ready and willing to admit. The Without delay the Committee drew up the reasons which were read in the House and agreed to : they were as follows : — " I. Because the words 'on the true faith of a Christian,' were originally introduced into the oaths to be taken by Members of Parliament with a view to bind certain Roman Catholics, and were not intended for the purpose of ex- cluding persons of the Jewish religion. " a. Because the exclusion of British subjects from seats in Parliament and offices in the State on the ground of their religious opinions is contrary to the general maxims of freedom of conscience. "3. Because no charge of disloyalty or unfitness for public employment, and a fair share of legislative power has been alleged, or can be alleged, against the Jewish community. " 4. Because the infliction of disabilities upon any class of Her Majesty's subjects, solely on the ground of their conscientious adherence to their faith, savours of persecu- tion, and is totally inconsistent with those principles of religious liberty, which, in the case of more powerful com- munities, have been applied by Parliament with such happy effects. " 5. Because the Commons having already on ten previous occasions, and in five Parliaments, passed Bills for removing the civil disabilities of the Jews, and having of late years agreed to such Bills by constantly increasing majorities, are convinced that the opinion of their constituents, and of the country at large, has been irrevocably pronounced in favour of the removal of such disabilities. "6. Because such Bills have been supported by many of the most eminent Members of both Houses of Parliament, who, while differing upon other political questions, have concurred in the justice and expediency of measures for the relief of the Jews. THE POLITICAL RIGHTS OF ENGLISH JEWS 29 1 "7. Because the rights of the Electors of the United Kingdom have been peculiarly affected by a law which has been construed to prevent the admission to the House of Commons of persons who have been lawfully returned as members of that House. " 8. Because the first and third clauses of the Bill are open to the construction that the new Oath, which the former of them contains, should be taken not only in all cases where the Oaths of Allegiance, Supremacy, and Abjuration, are now required, but also where the Oaths of Allegiance and Supremacy are at present required, though without the Oath of Abjuration ; the result of which construction, if the Bill should pass into law without the fifth clause, would be to exclude the Jews from practising as solicitors and barristers, and from offices under the Crown, to which employments and offices they are now admitted. " 9. Because such result would be contrary to the inten- tion of the two Houses of Parliament, appearing from the sixth clause, and from the title of the BiU under con- sideration ^." The House of Commons further decided to request a Confer- conference with the Lords, which the Lords agreed to, and between the Commons subsequently appointed the members of the tlie two Committee, including Baron de Rothschild, to manage the Conference on their behalf. The Conference was duly held, and the reasons delivered to the Lord Chamberlain who conducted it on behalf of the Upper House ^. When the report of the Conference came up for con- Lord sideration in the House of Lords, the Earl of Lucan, of g^g^gg^yg^ Crimean fame, a staunch supporter of the Tory party who ^°^ °°J^- had always hitherto consistently voted against the different Jew Bills, moved an amendment to the effect that it should be lawful for either House of Parliament, when the oath was administered to a Jew prior to his taking his seat ' Com. Jour., vol. 113, p. 172. 2 Hansard, vol, 150, pp. 529-30, 763, 859. V % 292 THE JEWS AND THE ENGLISH LAW in tlie House, by resolution to determine that the form of the oath, so far as it referred to the Christian faith, should be modified in such manner as should seem best calculated to adapt it to the honest and conscientious ,j,j,g scruples of persons professing the Jewish rel igion. suggestion The proposal took the House somewhat by surprise, reooivcd. ''' being made by Lord Lucan proijrio motu without con- sultation with any political party or group. It nevertheless met with a favourable reception. Earl Stanhope, who had led the opposition to Mr. Milner Gibson's Bill of 1856, announced that he would no longer offer an uncompro- mising opposition to the admission of Jews to Parliament, and if the amendment now before the House should be pronounced by Lord Lyndhurst, who had throughout led the cause of Jewish emancipation, to be a fair settlement of this long-agitated question, he also was prepared to vote for it. More significant still was the position taken up by the Prime Minister, the Earl of Derby. He expressed his desire to come to a reasonable compromise with the House of Commons. If it were a question of policy or expediency, their duty was to yield to the determined expression of the views of the House of Commons, and to waive their own opinions, unless they felt that they were supported by the country. But it must be admitted that the country was extremely apathetic on the question. Lord Lucan's suggestion might be a plausible solution of the difficulty, but it would require consideration, and would have to be put into shape. Moreover, he thought, it would best be carried out by being embodied in a separate Bill. In the meantime the proper course was for the Lords to insist upon their amendments. The Earl of Malmesbury, the Secretary of State for Foreign Affairs, concurred in the Prime Minister's views, and after some discussion Lord Lucan withdrew his amendment. The Lords Lord Lvndhurst then moved that the House should not insist on . . "^ . their insist upon its amendments ; and was answered by the Lord nwntf Chancellor, who went through and severely criticized the THE POLITICAL RIGHTS OF ENGLISH JEWS 293 reasons put forward by the Lower House. Earl Granville and Lord Brougham appealed to the mover not to persist in his motion, considering that the cause of Jewish emanci- pation had made such an advance that evening owing to the attitude of Lords Derby and Malmesbury that it might be considered to be practically won. Lord Lyndhurst adopted this suggestion, and withdrew his motion, expres- sing the hope that the spirit of conciliation would survive. Accordingly the Lords resolved to insist upon their amend- ments, and appointed a Committee to prepare reasons to be offered to the Commons therefor ^. The following week two Bills, each intended to carry Carrying out the compromise arrived at, were presented in the compro- House of Lords, and read a first time ; they were Lord ™ise. Lyndhurst's Bill to substitute one oath for the Oaths of Allegiance, Supremacy, and Abjm-ation, and for relieving the religious scruples of certain of Her Majesty's subjects, and Lord Lucan's Jewish Relief Bill. The discussion of these rival measures was postponed from time to time owing to the indisposition and consequent absence of the Prime Minister. At length, when the Bills reached the second reading stage, the Earl of Derby expressed his preference for Lord Lucan's Bill on the ground that it was more in accordance with Parliamentary procedure. Thereupon Lord Lyndhurst desiiing only to attain the end in view, and having no personal object to fulfil, postponed and ultimately withdrew his Bill, which had become known as the Oaths Substitution Bill. Lord Lucan then Lord proceeded to move the second reading of his Bill, which j^fjjj^ as originally drafted contained two clauses only. The Kelief BUI. first empowered either House of Parliament to resolve that thenceforth any person professing the Jewish religion, when taking the oath substituted by the Oaths Bill of the present session for the Oaths of Allegiance, Supremacy, and Abjm-ation, might omit the words " And I make this declaration upon the true faith of a Christian," and so ' Hansard, vol. 150, pp. 1 139-93. 294 THE JEWS AND THE ENGLISH LAW long as such resolution continued in force made the taking of the oath in such modified form valid so as to enable the taker to sit and vote in Parliament ; the second enabled persons professing the Jewish religion to omit the above- mentioned words in the said oath in all other cases in which they might be required to take it. Despite the understanding which had been arrived at by the leaders on both sides of the House, the motion for the second reading was stubbornly opposed, but was carried by 143 votes to 97 ^ At the Committee stage two additional clauses were inserted, the first excluding Jews from holding the high offices of state from which Koman Catholics were ex- cluded by the CathoKc Emancipation Act of 1829. This clause, as we have seen, was subsequently repealed by the Promissory Oaths Act of 1871. The second, which is still in force, was also borrowed from the Catholic Emancipation Act, and conferred upon the Archbishop of Canterbury the right of presentation to any ecclesiastical benefice which belonged to any office in the gift of the crown which might be held by a person professing the Jewish religion, and disabled any person professing that religion from directly or indirectly advising the Crown as to the exercise of its ecclesiastical patronage. The third reading was also opposed, but was carried by thirty-three votes to twelve, and even then eight peers recorded their solemn protest against the Bill^. The Lords' Meanwhile the committee had framed the report of the insiatino- Lords' reasons for insisting on their amendments to the on their Oaths Bill. After some discussion in the House these ments. reasons were finally settled and sent down to the House of Commons along with the Jewish Relief Bill. In their final form they were as follows : — " ist. Because, although the words 'on the true Faith ' See Hansard, vol. 150, pp. 1600, 1998-2000, 2218 ; ibid., vol. 151, Pli- 154-5, 693-730- ^ Ibid., vol. 151, pp. 916-30, 1070-4, 1257-66. THE POLITICAL EIGHTS OF ENGLISH JEWS 295 of a Christian ' were originally introduced into the Oath for the immediate purpose of binding certain Koman Catholics, it is unreasonable to assume that the Parliament which so introduced them did not intend that the profession of Christianity should be a necessary qualification for admission to the Legislature, when they enacted that a Declaration of that faith should form part of the Oath required to be taken by every member of both Houses. " and. Because the constant intention of the Legislature may be further inferred from the fact that neither at the time of the introduction of these words were the Jews admissible nor have they at any subsequent period been admitted to sit and vote in either House of Parliament. " 3rd. Because exclusion from seats in Parliament and offices of the State on the ground of religious opinion and for other reasons where the general good of the State appears to require it, is a principle recognized in the settlement of the succession to the Crown and in other cases; and has, moreover, been further and recently sanctioned by the House of Commons in some of the provisions of the present Bill. "4th. Because, without imputing any disloyalty or disaffection to Her Majesty's subjects of the Jewish persuasion, the Lords consider that the denial and re- jection of that Saviour, in whose name each House of Parliament daily offers up its collective prayers for the divine blessing on its councils, constitutes a moral unfitness to take part in the legislation of a professedly Christian community. "5th. Because, when the Commons plead in support of their views, in a matter which equally concerns the constitution of both branches of the Legislature, their repeated recognition of the expediency of removing this disability of the Jews, and admitting them to then- councils, the Lords desire to refer to their equally firm adherence to the principle of retaining those privileges which they believe to be peculiarly and inseparably 296 THE JEWS AND THE ENGLISH LAW attached to Parliament as an exclusively Christian Assembly^." The House The next day the Jewish Relief Bill was read for the mons'^nd ^'^^^ t™^ ^^ ^^^ House of Commons, and Lord John the com- Russell made a motion for the adjournment of the House in order to explain the course he proposed to adopt. He would move the second reading of the new Bill, and ask the Government for facilities for carrying it through its remaining steps before the end of the session. If this were done the House might concur in the Lords' amendments to the Oaths Bill without proceeding to discuss their reasons. He would, of com-se, have preferred that the Lords should have said that the object in view, namely, the admission of Jews to sit and vote in that House, would have been better provided for in a separate Bill, instead of giving reasons why no Bill of the kind should pass at all. He was, however, assured that the course taken was not intended as an insult to the House of Commons, and the compromise, by which the Lords merely retained the right to exclude a Jew, if created a peer, from their own House, he was willing to accept as the best practical solution of the question, hoping, as he did, that in course of time Jews would be admitted into the other House also. Mr. Disraeli, as leader of the House of Commons, at once consented to grant the facilities asked for, and the motion was by leave withdrawn ^. The Bill was rapidly passed through the House of Commons ; its rejection was moved on the second reading by Mr. Newdegate, who could only muster 65 supporters against 156 opponents of his motion. It went through com- mittee and was reported without amendment. Yet on the motion for the third reading the opposition was again renewed. It was led by Mr. Warren, who declared that the settlement was one in which nothing was settled and that from the moment that the Bill became law would ' Hansard, vol. 151, pp. 156, 362, 1243-57. 2 Ibid., pp. 1369, 1371-80. THE POLITICAL EIGHTS OF ENGLISH JEWS 297 date the decline of the moral and religious influence of the House of Commons. On the division being taken, 129 voted for, and 55 against the third reading. The same evening the House took into consideration the Lords' Amendments to the Oaths BiU and the reasons given for insisting upon them, and passed the following resolutions: (i) "That this House does not consider it necessary to examine the reasons offered by the Lords for insisting upon the exclusion of Jews from Parliament, as by a Bill of the present session intituled 'An Act to provide for the relief of Her Majesty's subjects professing the Jewish religion,' their lordships have provided means for the admission of persons professing the Jewish religion to seats in the Legislature." (a) " That this House doth not insist upon its disagreement with the Lords in their amendments to the said Bill." Two days afterwards, on July 23, 1858, the Eoyal Assent was given to both the Jewish Relief Bill and the Oaths BiUi. The following Monday Baron Lionel de Rothschild again Baron de appeared at the table of the House, and was allowed to takes^ his take the new oath with the omission of the final words, seat in the a resolution to that efiect having been first proposed by Lord John Russell, and carried by a majority of thirty-two. He was thus at length permitted to take his seat in the House of which he had been a member for eleven years, in the course of which he had been returned as the representative of the city of London no less than five times, at three general and two bye-elections^. The controversy which had divided the two Houses The real for ten years was thus settled in a way peculiarly ^f (.j^g consonant to the trend of English constitutional history. " compro- The settlement seems to be destitute of principle and innocent of logic, but it was sufficient to meet the difficulty which had actually arisen ; its form, moreover, • Hansard, vol. 151, pp. 1614-36, i754-6s, 1863-5, 1879-1906, 1967. ' Ibid., pp. 2105-15. 2g8 THE JEWS AND THE ENGLISH LAW was so clumsy that it was in a short time found necessary to amend it. It was said to be a compromise, but it was in fact no compromise, for the whole point at issue was conceded. It is true that the Lords retained the right to prevent a Jewish peer from taking his seat in their House, but there was no intention at that time of making a Jew a peer, and before such a creation became a question of practical politics the Lords had voluntarily surrendered this very questionable privilege. On the other hand the House of Lords may have been thought to have saved its dignity and justified itself in the position it had taken up, for it had all along been maintained that the question did not concern the Lower House alone, and the Lords, while desiring to maintain the exclusively Christian character of the legislature, disclaimed any intention to interfere with the right of the other House to decide upon the validity of the returns and the admission of members elected to it. At any rate a collision between the two Houses or between the House of Commons and the Law Courts had been avoided, and in spite of the absurdity of the result ■ achieved, when looked at from the merely formal point of view, religious liberty had in substance emerged triumphant. The The ultimate issue was probably hastened by the ha'ste^d^* advent to office of a Conservative Ministry, although by the the chief opponents of Jewish emancipation had Liberal always been found in the ranks of that party. Yet Govern- the Successive Tory leaders of the House of Commons, Sir Robert Peel, Lord George Bentinck, and Mr. Disraeli, had been staunch adherents of the cause of relisrious liberty. Had the Liberal party remained in power, there is no reason to doubt that the majority of the House of Lords would have continued to reject any Jewish Relief Bills sent up to them, so long as the ministry declined to make its acceptance a cabinet question ; but when the Conservatives came into office they found it necessary to have the standing cause of difference THE POLITICAL RIGHTS OF ENGLISH JEWS 299 between the two Houses removed, especially as it was only by the forbearance of their opponents that they could count on a majority in the House of Commons, and they were only carrying on the Government until it was convenient to hold a general election. It would have suited neither pai-ty to make the Jewish question a ground of appeal to the country. Both the friends and enemies of religious freedom professed their belief that the country was behind them, but neither were willing to stake their political existence upon such an issue. The fact was that, taking the country as a whole, complete apathy upon the subject reigned among the electors. Lord Palmerston was right therefore from the political point of view in not placing the matter in the forefront of his programme ; and Lord John Russell himself, while he remained in the cabinet, had not succeeded in converting the whole of his followers to the cause. Indeed, the measure he brought forward in 1854 had actually been defeated in the House of Commons, and he himself was thought to have become so lukewarm that the next Bill (that of 1 856) was entrusted by the Jewish partisans to Mr. Milner Gibson. From the selfish point of view there can be little ~^ , doubt that the Liberals did right in not making Jewish sion of th< emancipation one of the issues of party conflict, and, more- fj^^the over, its exclusion from the arena of party politics was of arena of no little advantage to the Jews themselves, for if they had fliota come to be regarded as the special favourites of one of tlie benefit to T . T ■ • 1 m 1 11 11 ^^^ Jews, great political parties m the btate, they would assuredly have been looked upon with dislike, if not with hostility, by the other. Experience has shown that it is to the leaders of political pai-ties, more than to the rank and file of their followers or the electors as a body, that a small community like the Jews must look when it requires special treatment or protection. On the one occasion when a policy of justice to the Jews had been made the subject of an appeal to the people, viz. the Naturalization of Jews Act, 1753, the result had proved disastrous to the cause of 300 THE JEWS AND THE ENGLISH LAW religious liberty. The lapse of time and the extension of education, though they may have eradicated many popular prejudices, have not so altered the character of the populace as to make it welcome a policy of altering the law in order to secure political equality to the Jews with any great amount of enthusiasm. The praise- Before returning from this digression it should further ^n'duct of ^® remarked that throughout the controversy the Jews Baron de acted in an open and conscientious way. Over and over and ^'^ ' again Mr. Koebuck declared in the House that, were he Mr. Salo- ^ Jew, he would take the oath, including the words " on the true faith of a Christian," though he would have regarded them as a mere farce and not binding on his conscience ; and no doubt it was a case in which, if ever, the maxim of Euripides might be acted upon : — To their credit, however. Baron de Rothschild and Mr. Salomons pursued a different course with the unani- mous approval of their co-religionists. Had they chosen to follow Mr. Eoebuck's advice, it was admitted by the opponents of Jewish rights that they could not have been excluded, for, as Sir Frederic Thesiger put it, it was impossible to bind an unconscientious man by any oath 2. An incon- The inconvenience of the machinery provided for carrying venience ^^^ ^j^g so-called Compromise soon became manifest. The from the doors of Parliament had been opened to the Jew, but he the settle- could not enter as of right, for every session ^ a resolution ment must be passed enabling such Jews as might desire to remedied ° by Act of ' Eur., Hip., 612. ^ However, means were taken by the House of Commons to prevent Mr. Bradlaugh from taking the oath which he had previously declared was not binding on his conscience. But this was a quarter of a centm-y later. The legality of that decision of the House of Commons was affirmed by the Law Courts. See Bradlaugh v. Gossett (1884), L. E., 12 Q.B.D. 271. ' For it was held that a resolution did not remain in force after a prorogation. Report of Committee, Session I, 1859, No. 205, Com. Jour., vol. 114, p. 59, and Hansard, vol. 152, pp. 459-63. Parlia ment. THE POLITICAL RIGHTS OF ENGLISH JEWS 3OI take the oath to omit the final words, and such resolution might be opposed, and was liable to be defeated on each occasion. To remedy this defect an Act of Parliament was passed two years later enabling the House of Commons to convert a resolution arrived at under the Jewish Relief Act of 1858 into a Standing Order, which would remain valid and in force until repealed, and therefore obviate the necessity of passing a fresh resolution every session ^. Six years later Parliament was again called upon to The "com- deal with the question. The result was the Parliamentary Jj™^^^^ Oaths Act of 1866 (29 & 30 Vict., c. 19). This Act by the substituted a new and simplified oath, which did not mentary contain the words " on the true faith of a Christian," Oaths Act . of 1866. as the oath to be taken by members of both Houses of Parliament, in Ueu of the oaths laid down by the Oaths Act of 1858 and the Roman Catholic oath, the fonn of which was laid down by the Catholic Emancipation Act of 1829. The object of the new Act, like that of Lord John Russell's unsuccessful measure of 1854, was to create a simplified and uniform oath which all members of Parlia- ment alike might take, to whatever religious denomination they might belong^. It incidentally upset the so-called compromise of 1858 by depriving the House of Lords of the right to exclude a Jewish peer which they then retained. It met, however, with no serious opposition in either House of Parhament, and the point to which ' See the statute 23 & 34 Viet., c. 63, and see Hansard, vol. 157, pp. 960-63, 1916-g; ihid., Tol. 158, p. 305; ihid., vol. 159, p. 1507; ihid., pp. 1745-50- ^ The wording of the new oath as finally settled was as follows : " I, A.B.. do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria ; and I do faithfully promise to maintain and support the succession to the Crown, as the same stands limited and set- tled by virtue of the Act passed in the reign of King William the Third, intituled ' An Act for the further limitation of the Crown, and better securing the rights and liberties of the Subject,' and of the subsequent Acts of Union with Scotland and Ireland. So help me God." The debates on the measure are to be found in Hansard, vol. i8r, pp. 453-9, 1712-37 ; and vol. 182, pp. 289-314, 480-3, 510-18, 1322-55. 1619-28, 1759, 3176. 302 THE JEWS AND THE ENGLISH LAW substantial criticism was directed was the alteration in the Roman Catholic oath. So far as it related to the Jews, Sii- Georc^e Grey, the Chancellor of the Exchequer, in introducing the Bill, fairly explained its scope to the House of Commons. He said, "The members professing the Jewish religion sat now in that House not by absolute riwht, but by sufferance, the result of a compromise adopted to terminate a long struggle, but it was impossible not to see that that arrangement must be temporary. Those gen- tlemen had sat there for some years, and it would be absurd to ask if any danger had arisen to the Crown, the Church, or the Constitution from Jews sitting in that House. They had taken part with credit to themselves in the discussions of the House, and had performed their duty with integrity and ability. He thought the time was come when the members professing the Jewish religion should be admitted to all the privileges which were enjoyed by the members of other religious denominations. By the adoption of the measure he proposed members would be relieved from the necessity, on coming to the table after a general election, of ranging themselves in three divisions on taking the oaths. Let no man be asked any question as to his religion, but let him take his seat in the House if qualified to sit there, in the opinion of those who sent him there, on taking the oath of allegiance as a loyal subject of the Crown ^." Th6 power When the Bill reached the House of Lords, Lord of the Chelmsford, who years before had been the leading oppo- Lords to nent of Jewish emancipation, proclaimed himself content exclude -y^rith the new proposal. Before the second reading he said : volun- "With regard to the omission of the words 'upon the true abandoned faith of a Christian ' I have always contended against the by the admission of Jews to Parliament as a matter of principle. opponents I have never thought that there was the slightest danger of Jewish ^Q ^.j^g state in admitting a few Jews to the legislature ; tion. but upon principle, and upon principle alone, I have main- ' Hansard, vol. i8i, p. 456. THE POLITICAL RIGHTS OF ENGLISH JEWS 303 tained my opposition. Now, in the year 1858 an Act was passed which involved a compromise upon this long-vexed question, and it was enacted that either House of Parlia- ment might by a resolution dispense in the case of a Jew with those words of the oath which declare it to be taken ' upon the true faith of a Christian'. Now, my Lords, it appears to me that the principle is as much violated by admitting a Jew by the side door of a resolution as it would be if j^ou admitted him by throwing open the principal door, and giving him a seat in Parliament by the express words of the Act itself. Therefore, in my view, there really is on this subject nothing left worth contending for, and I am not at all disposed, having certainly failed in maintaining the principle which I defended, to take any further part in resisting the complete admission of the Jew to his seat in the legislature ^." Again, at a later stage, when it was proposed to insert the words " on the true faith of a Christian " in the new oath, the same speaker repeated his former statement, and further said : " The House of Commons had chosen to adopt a resolution by means of which a person of the Jewish faith presenting himself at the table could be admitted on taking the oath, omitting the words ' on the true faith of a Christian,' and that resolution had now become a standing order of the House ; it was, therefore, clear that, so far as the House of Commons was concerned there was no impediment what- ever to the admission of the Jews to Parliament. The resolution had broken down the barrier completely, and the Jew walked in without any difficulty and took his seat. With regard to their Lordships' ho use — suppose Her Majesty were to be advised to raise a Jew to the dignity of the peerage, would their Lordships refuse to pass a resolution dispensing with that portion of the oath which required him to say he made the declai'ation ' on the true faith of a Christian ' ? Their Lordships would hardly be disposed to adopt a course which would be an insult to the Crown ; ' Hansard, vol. i8a, p. 1349. 304 THE JEWS AND THE ENGLISH LAW and, therefore, he considered that there was practically no impediment to the admission of Jews to their Lordships' house. Under these circumstances there was, as he had said, nothing left to fight for ! Immediately the principle he had maintained was sacrificed all grounds for further resist- ance were gone ; therefore he did not oppose the second reading of the Bill, and must now decline to vote for the amendment'." The amendment was not pressed to a division, and the one relic of intolerance which had sur- vived the eleven years' struggle between the two Houses was swept away, practically without any effort to retain it. It was not, however, for nearly twenty years that any Jew was able to avail himself of the rights now thrown open to Lord his community. At length, in July, 1885, Sir Nathaniel de created a Rothschild, the first Jew to receive a patent of peerage, peer in under the title of Lord Rothschild, was sworn in as _OQ- ' a member of the House of Lords, and took his seat accordingly ^. The Office The simplified oath established by the Parliamentary Act 1867^^ Oaths Act of 1866 was to be administered only to persons about to take their seats in either House of Parliament, but the following year another Act, the Office and Oaths Act 1867 (30 and 31 Vict., c. 75) was passed. It enacted that the new and simphfied form of oath should be taken as a qualification for the exercise of any ofiice, franchise, or civil right, instead of the Oaths of Allegiance, Supremacy, and Abjuration, or any form of oath substituted for them (as, for instance, under the Oaths Act and Jewish Belief Act of 1858). Inasmuch as the necessity for making the declaration had, as we have seen, been previously removed by the Qualification for Offices Abolition Act 1866 (39 and 30 Vict., c. 22), henceforth Jews when qualifying themselves for holding any office or civil right would go through precisely the same ceremonies as their Christian fellow subjects. ^'J^J™- The Promissory Oaths Act of 1868 (31 and 32 Vict., ^868^ ^"^ ' Hansard, vol. 182, p. 1622. 2 Lords' Journals, vol. 117, p. 335. THE POLITICAL RIGHTS OF ENGLISH JEWS 305 c. 72), introduced by Lord Chelmsford when again Lord Chancellor, and in consequence of the report of the Eoyal Commission on the subject appointed in the year 1866, and reappointed after the change of government in the same year, again modified the form of the oaths, and enacted the three very simple forms of the Oath of Allegiance, the Official Oath, and the Judicial Oath, which have already been set out, and which are still in force. Finally, the Promissory Oaths Act of 1871 (34 and 35 The Pro- Vict., c. 48), in addition to repealing the section in the 0'??''^^ 1. Jewish Relief Act of 1858, which excluded Jews from some 1871, of the highest offices of state, formally repealed all the open^to statutes establishing the old forms of oaths and declarations Jews the which had been superseded and rendered obsolete by the from Promissory Oaths Act of 1868 or earlier Acts. This Act ^iii«ii . . they were passed through both Houses of Parliament without opposi- excluded tion, and almost without discussion. Since it became law 5^^^"^ Jews have been on precisely the same footing in regard to Relief Act political rights as their Christian fellow subjects, with this ° ' 5 • exception only, that they cannot exercise any right of ecclesiastical patronage attaching to any office they may happen to hold. 3o6 CHRONOLOGICAL TABLE. 1070. A number of Jews brougtt from Eouen by William I. 1194 (?). Exchequer of the Jews established by Richard I as a separate department, and Justices of the Jews appointed. 1232. Domus Conversorum opened by Henry III. 1271. Ordinance of Henry III prohibiting Jews from holding lands j in fee, and having Christian servants, i 1275. Statute de la Jeverie or de Judaismo. { 1290. Banishment of the Jews by Edward I. 1401. Statute de Haeretico, 2 Hen. IV, c. 15. 1558. Acts of Supremacy and Uniformity (i Eliz., c. I and c. 2). 1575. General expulsion of Aliens by Queen Elizabeth. 1580-1592. Legislation against recusants (23 Eliz., c. I, 29 Eliz., c. 6, 35 Eliz., c. I & 2, &c.). 1605. Gunpowder Treason and Plot. New legislation against Popish recusants. The new Oath of Obedience and Allegiance " on the true faith of a Christian " (3 Jac. I, c. 4). 1608. Calvin's case. 1609. Applicants for naturalization required to take the sacrament of the Lord's Supper (7 Jac. I, c. 2). 1612. Last execution for heresy in England. 1617. The last claim of villenage in an English court. 1618 (?). The Jews fly from England in consequence of the issue of a commission for the execution of the laws against Jesuits, &c. 1625. Act for punishing divers abuses committed on the Lord's Day, commonly called Sunday (i Car. I, c. i). 1627. Act for the further reformation of sundry abuses committed on the Lord's Day, commonly called Sunday (3 Car. I, c. 2). 1630. Treaty with Spain, by virtue of which Spanish subjects were exempted from the laws against recusants. 1635 (?). Carvajal settles in England. 1640. Court of High Commission abolished (16 Car. I, c. 11). 1648. The Independents obtain control of Parliament. CHRONOLOGICAL TABLE 307 1649. Petition of tlie Cartwrights of Amsterdam for the re-admission of the Jews. Execution of Charles I. 1653. The Instrument of Government. The law against recusants relaxed, but not so far as to give immunity to persons not believing in Christianity. 1655. Menasseh Ben Israel arrives in England. The Whitehall Conference. 1656. War between England and Spain. Capture of Jamaica. Case of Antonio Robles. Commission to treat with the Jews of Amsterdam given by Charles II to General Middleton. 1657. Departure and death of Menasseh Ben Israel. 1658. Death of Oliver Cromwell. 1660. Declaration of Breda. Restoration of Charles II. Navigation Act (12 Car. II, c. 18) excludes from the colonial trade aliens unless naturalized or made denizens. Petitions against the Jews referred to Parliament by the Privy Council. 1661. Corporation Act (13 Car. II, st. 2, c. i). And following years. A number of Jews granted letters of denization. 1662. Act of Uniformity (13 & 14 Car. II, c. 4). Dec. 26. First Declaration of Indulgence. 1663. Public worship openly and regularly performed in the synagogue. Organization of the Jewish community. 1664. The Conventicle Act (16 Car. II, c. 4). Threatened attack on the Jews by the Earl of Berkshire. Their petition to the king for protection favourably answered. 1665. The Five Mile Act (17 Car. II, c. 2). 1667. Robeley v. Langston. Jewish witness allowed to be sworn on the Old Testament. 1670. Second Conventicle Act (22 Car. II, c. i). 1672. Second Declara,tion of Indulgence. James, Duke of York, openly embraces Catholicism, 1678. The Declaration of Indulgence cancelled. The Test Act (25 Car. II, c. 2). The principal Jews indicted for meeting together for the exercise of their religion. X a 3o8 THE JEWS AND THE ENaLISH LAW Petition of Abraham Delivera and others. Order in Council to stay all proceedings against the Jews. 1674. Rebuilding of the synagogue. Lease for twenty-five years taken. 1677. Act for the better observation of the Lord's Day, commonly called Sunday (29 Car. II, c. 7). The Writ de haeretico comburendo abolished (29 Car. II, c. 9). 1678. The Parliamentary Test Act (30 Car. II, st. 2). 1684. A Jew's right to maintain an action recognized by the Court of King's Bench (Lilly's Practical Register, vol. I, p. 4). 1685. Death of Charles II, and accession of James II. Forty-eight Jews charged with recusancy. Petition of Joseph Henriques and others to the king. Formal Order in Council to stay these proceedings. " His Majesty's intention being that they" (the Jews) "should not be troubled on this account, but quietly enjoy the free exercise of their re- ligion, whilst they behave themselves dutifully and obediently to his government." 1687. Declaration of Indulgence. 1688. The Revolution. Deposition of James II. 1689. New and simplified oaths of supremacy and allegiance. The dispensing power of the Crown, saving previous charters and grants, abolished. The Toleration Act (i WilL & Mary, c. 18), the benefit of which was restricted to Protestant Trinitarians [extended to Uni- tarians in 1813, Roman Catholics in 1832, and Jews in 1846]. Proposal to impose special taxation on the Jews. Their petition to Parliament not received. The projected tax withdrawn. 1694. Jewish marriages expressly included in the provisions for the tax upon marriages (6 & 7 Will. & Mary, c. 6). 1698. The Act against blasphemy and profaneness (9 Will. Ill, c. 35). 1701. The Act of Settlement (12 & 13 WilL III, c. 2). Death of James IL His son's title to the English throne recognized by Louis XIV. The oath of abjuration invented (13 & 14 Will. Ill, c. 6). 1702. Act to oblige Jews to maintain and provide for their Protestant children (l Anne, c. 24). 1707. Voters at Parliamentary elections may be required to take the oath of abjuration (6 Anne, c. 78). 1708. The Foreign Protestants' Naturalization Act (7 Anne, c. 5). CHRONOLOGICAL TABLE 309 1714. The requirement of taking the oath of abjuration imposed in 1701 on all public officers, &c., continued. Members of ParKament not to vote or sit before taking the said oath (i Geo. I, st. 2, c. 13). 1718. The Religious "Worship Act (5 Geo. I, c. 4) forbids attendance with the insignia of office at any Nonconformist place of worship. 1723. Jewish landowners required to take the oath of abjuration allowed to omit the words " on the true faith of a Christian " (10 Geo. I, c. 4). 1728. First (Annual) Indemnity Act (i Geo. II, st. 2, c. 23). 1730. British Nationality Act (4 Geo. II, c. 21). 1732. Attempt to arouse popular animosity against the Jews by the blood accusation frustrated (Rex v. Osborne). 1739. The custom of requiring the oath administered prior to receiving the citizenship of London to be taken on the New Testament held to be good (Res v. Bosworth). 1740. The Plantation Act (13 Geo. II, c. 7) enables Jews to be natu- ralized in the colonies without taking the sacrament or pronouncing the final words of the oath of abjuration. 1743. Held in Da Costa v. De Paz that a legacy for instructing Jews in their religion could not be so applied. 1744. Held in Omychund v. Barker that all persons who believe in a Supreme Being are competent witnesses, and should be allowed to take the oath in the form binding upon them according to the tenets of their religion. 1753. Jewish marriages exempted from the provisions of Lord Hard- wdcke's Marriage Act (26 Geo. II, c. 33). The Jews Naturalization Act (26 Geo. II, c. 26) passed. Conse- quent agitation against the Jews. 1754. The Jews Naturalization Act repealed (27 Geo. II, c. i). 1765. Death of the Old Pretender. The form of the oath of abjuration finally settled (6 Geo. Ill, c. 53). 1770. First Jews admitted as solicitors ; being permitted to omit the final words of the oath of abjuration. 1772. British Nationality Act (13 Geo. Ill, c. 21). 1781. The Sunday Observance Act (21 Geo. Ill, c. 49). Places of amusement (admission to which is by payment) open on a Sunday to be deemed disorderly houses. 3IO THE JEWS AND THE ENGLISH LAW 1784. The Alien duties abolisted by Pitt (24 Geo. Ill, sess. 2, c. 16). 1791. Roman Catholic Relief Act (31 Geo. Ill, c. 32). 1793. Lord Granville's Aliens Act (33 Geo. IV, c. 4) temporary but periodically renewed till 1826. 1794. Act for the better observance of the Lord's Day by persons exercising tbe trade of bakers (34 Geo. Ill, c. 61). Provisions of this Act with some modifications embodied in the Bread Acts (3 Geo. IV, c. 6, s. 16 ; and 6 and 7 Will. IV, c. 37, s. 14). 1811. Held in Lindo v. Unsworth that a Jew is excused from giving notice of dishonour of a bill of exchange on the Day of Atonement. 1812. Charities " for the benefit of any persons of the Jewish nation " exempted from the provisions of the Act for registering and securing charitable donations (52 Geo. Ill, c. 102, s. 11). The Places of Religious Worship Act (52 Geo. Ill, c. 155) repeals the Five Mile Act and the Conventicle Act, &c. 1813. Unitarians admitted to the benefit of the Toleration Act (53 Geo. Ill, 0. 160). 1823. Jewish marriages exempted from the provisions of the Marriage Act (4 Geo. IV, c. 76). 1825. The necessity of taking the sacrament as a preliminary to naturalization abolished (6 Geo. IV. c. 67). Repeal of the Navigation Act (6 Geo. iV, c. 105). 1826. The temporary Aliens' Acts discontinued, and the system of registration of aliens substituted (7 Geo. IV, c. 54). 1828. Declaration "on the true faith of a Christian" substituted for the sacramental tests imposed by the Corporation and Test Acts (9 Geo. IV, c. 17). 1829. Roman Catholic Relief Act (10 Geo. IV, e. 7). 1830. Mr. Robert Grant's Bill for repealing the civil disabilities of the Jews refused a second reading by the House of Commons. Jews admitted to the freedom of the City of London, and allowed to take the oath on the Old Testament. 1832. The Roman Catholic Charities Act (2 & 3 WiU. IV, c. 118). 1833. Mr. Francis Goldsmid called to the Bar. The Jewish Civil Disabilities Bill passed by the House of Commons, but refused a second reading by the House of Lords. 1834. The Jewish Civil Disabilities Bill again passed by the House of Commons, but refused a second reading by the House of Lords. CHRONOLOGICAL TABLE 31 1 1835. Mr. Salomons elected Sheriff of London. The Sheriffs' Declara- tion Act (5 & 6 Will. IV, c. 28). Mr. Salomons elected Alderman and unsuccessfully attempts to be admitted. The Parliamentary Elections Act, 1835, abolishes the power of the presiding officer to administer the abjuration oath to electors (5 & 6 Will. IV, c. 36). 1836. The Registration of Aliens Act (6 & 7 Will. IV, c. 11). The Jewish Civil Disabilities BUI passed the House of Commons a third time but sent to the Lords too late to receive a second reading. The Marriage Act (6 & 7 Will. IV, c. 85) and the Registration Act (ibid. c. 86) recognize the validity of Jewish marriages, make special provision as to their registration and give statutory recognition to the London Committee of Deputies of British Jews. 1837. Quakers, Moravians, and Separatists Relief Acts (i & 2 Vict., 0. 5 and c. 15). Mr. Grote's motion to extend the relief to Jews rejected by the House of Commons. 1838. The Oaths Act (i & 2 Vict., c. 105). 1841. Mr. Divett's bill for the admission of Jews to Corporate Offices, known as the Jews' Declaration Bill, passes the House of Commons and receives a second reading in the House of Lords but is refused a third reading. 1844. The system of natui-alization by certificate from a Secretary of State introduced by Mr. Hutt's Naturalization Act (7 & 8 Vict., 0. 66). Repeal of the laws against recusants and other penal enactments so far as they affected Roman Catholics. 1845. Act for the relief of persons of the Jewish religion elected to municipal offices (S & 9 Vict., c. 52). 1846. The Religious Disabilities Act (9 & 10 Vict, c. 59) repeals the laws against recusants and other penal statutes and extends the benefit of the Toleration Act to the Jewish religion (see also 18 & 19 Vict, c. S6, s. 2). 1847. Baron Lionel de Rothschild elected Member of Parliament for the City of London. 1848. Lord John Russell's Jewish Disabilities Bill passes the Commons but is refused a second reading by the Lords. 1849. Lord John Russell's Parliamentiry Oaths Bill (altering the 312 THE JEWS AND THE ENGLISH LAW oath in favour of Jews) passed by the Commons but rejected by the Lords. Baron de Rothschild obtains the Chiltern Hundreds and is re-elected. 1850. Baron de Rothschild unsuccessfully attempts to take his seat in Parliament. 1851. Lord John Russell's Oath of Abjuration (Jew) Bill passed by the Commons but rejected by the Lords. Mr. David Salomons, having been elected member for Greenwich takes his seat in the House and is forcibly removed, 1852. The case of Miller v. Salomons. The Disabilities Repeal Act 1852 abolishes the disabilities but not the pecuniary penalties imposed by I Geo. I, stat. 2, c. 13, upon persons who should vote in Parliament without having taken the oath. 1853. Lord John Russell's Jewish Disabilities Bill passes the Commons but is rejected by the Lords. 1854. Lord John Russell's Parliamentary Oaths Bill, creating a new oath which Jews could take, refused a second reading in the House of Commons. Oxford University Reform Act (17 & 18 Vict., c. 81). 1855. Places of Religious Worship Registration Act (18 & 19 Vict., c. 81) makes provision for the registration of Jewish syna- gogues. Act for securing the Liberty of Religious Worship (18 & igVict., c. 86). 1856. The Marriage Act (19 & 20 Vict., c. 119) makes special pro- visions as to Jewish marriages and gives statutory recognition to the West London Synagogue of British Jews. Cambridge University Reform Act (19 & 20 Vict., c. 88). Mr. Milner Gibson's Oath of Abjuration Abolition Bill passed by the Commons but rejected by the Lords. 1857. Lord Palmerston's Oaths Bill having passed the Commons by a large majority is rejected by the Lords. Lord John Russell's Oaths Validity Amendment Bill introduced in the House of Commons but abandoned before the second reading stage. Baron de Rothschild resigns and is re-elected. 1858. Lord John Russell's Bill " to substitute an oath for the Oaths of Allegiance, Supremacy, and Abjuration, and for the relief CHE0N0L06ICAL TABLE 313 of Her Majesty's subjects professing the Jewish religion" passes the Commons and receives a second reading in the Lords, but in committee the clause enabling Jews to omit the words " on the true faith of a Christian " is struck out. The Commons appoint a Committee to confer with the Lords. Baron de Rothschild is appointed a member of and serves on the Committee. Lord Lucan's suggestion for compromise accepted. The Oaths Act (21 & 22 Vict., c. 48), and the Jewish Relief Act (21 & 22 Vict., c. 49), the result of the compromise. Baron de Rothschild sworn as member of the House of Commons. 1860. Endowed Schools Act (23 & 24 Vict., c. 11). The Act (23 & 24 Vict., c. 63), enables the House of Commons to make a Standing Order for the swearing in of Jewish members. 1866. Parliamentary Oaths Act (29 & 30 Vict., c. 19) introduces a new oath to be taken by Members of Parliament not containing the words " on the true faith of a Christian," thus enabling Jews to be sworn in as members of the House of Lords. Qualification for OflSces Abolition Act (29 & 30 Vict., c. 22) renders it unnecessary to make and subscribe the Declaration imposed by 9 Geo. IV, c. 17, in lieu of the sacramental test. 1867. Office and Oath Act (30 & 31 Vict., c. 75) (i) throws open the office of Lord Chancellor of Ireland to all subjects. (2) Enables persons holding office to attend any place of worship with the insignia of their office. (3) Substitutes the form of oath created by the Parliamentary Oaths Act of 1866 for that required to be taken by office holders and others. The last of the Annual Indemnity Acts (30 & 31 Vict., c. SS). 1868. Promissory Oaths Act (31 & 32 Vict., c. 72) introduces new and simpler forms of (l) the oath of allegiance; (2) the official oath ; (3) the judicial oath. The Public Schools Act (31 & 32 Vict., e. 118). 1869. The Endowed Schools Act (32 & 33 Vict, c. 56). 1870. The Naturalization Act (33 & 34 Vict., c. 14). Elementary Education Act (33 & 34 Vict., c. 75). 1871. The Workshop Regulation Act Amendment Act (34 & 35 Vict., c. 19) permits Sunday labour in the case of young persons and women professing the Jewish religion. The Universities Tests Act (34 & 35 Vict., c. 26). 314 THE JEWS AND THE ENGLISH LAW The Promissory Oaths Act (34 & 35 Vict., c. 48) repeals obsolete Acts relative to promissory oaths, and removes the disability of Jews to hold certain high offices imposed by the Jewish Relief Act of 1858. The Sunday Observation Prosecution Act (34 & 35 Vict., c. 87) forbids prosecutions for Sunday labour under the Lord's Day Act of 1677 except with the consent of the chief officer of the police district or two magistrates, &c. 1872. The Ballot Act (35 & 36 Vict., c. 33) contains provisions enabling Jews to vote on their Sabbath. 1878. The Factory and Workshop Act (41 Vict., c. 16) continues the permission of Sunday labour by Jews. 1885. Sir Nathaniel de Rothschild created a peer. 1888. The Oaths Act (51 & 52 Vict., c. 46). 1898. Jewish marriages excluded from the provisions of the Marriage Act, 1898 (61 and 62 Vict., c. 58). 1901. The Factory and Workshop Act (i Edw. VII, c. 22) continues the recognition of the right of Jews to work on Sundays. 1902. The Education Act (2 Edw. VII, c. 42). 1905. The Aliens Act (5 Edw. VII, c. 13). 1906. Jews marrying foreigners in the United Kingdom exempted from the necessity of obtaining a certificate under the Marriage with Foreigners Act (6 Edw. VII, c. 40). 315 ADDENDA AND COKRIGENDA. Page 2, linen. 1673] 1673-4 4,1.9. fit.'"] fit'.'" Footnote: ^ For the circumstances which led to this enactment, see post, pp. 167-9. 11. 13-14- Popery . . . year] Popeiy (11 Will. Ill, c. 4, s. 7) passed three years earlier. 8, 1. 33. VillareuV\ Villareal 10, 1. 35. Queen's] King's 12, n. I. later.] later (see p. 262). 14, n. I. (1817).] (1817) and id. 379 (note). 15, 1. 3. in favour of] as a favour to 19, 1. 20. 1744] 1743 20, 1. I. vyas] sought 22, n. I. 7 instead of 7 Vesp. 81. 23, n. I. Burgman] Berry man n. 2. Simeon] Simon n. 4. c. 59.] c. 59; and see the Liberty of Religious Worship Act, 1855 (18 & 29 Vict., c. 86), s. 2. 24, 1. 14. God,] God^, Footnote: ' See Att.-Gen. v. Lucas, L. R. [1905] I Ch. 68, where a bequest for the purpose of keeping in good order burial grounds the use of which is restricted to members of the Society of Friends, was held to be a gift for the advancement of religion and therefore a valid charitable legacy. 26, 1. 13. void.] void'. Footnote: ' In re Sidney, Hingeston v. Sidney [igo8] I Ch. 126. A bequest in trust for such charitable uses or for such emigration uses as the trustees shall think fit is void for uncertainty, as emigration uses are indefinite and not necessarily charitable. 29, n. 2. Breeks v. Woolfrey, i Curt. Eccl. Rep. 880; and see Egerton v. All of Odd Rode, L. R. [1894] P. 15, and Pearson v. Stead, id. [1904] P. 66. 30, n. 2. Burder} Brewer 37, 11. 15-16. and afterwards any] and that it had been resolved not to allow any 1. 34. Sheba . . . draw] Sheba Lyon should be permitted to draw lots for the 47, 11. 1-2. (delivered . . . was based] delivered, after mature deliberation, by one of our ablest and most careful judges) was based 49, 1. 14. Dr. Wilton] De Wilton 54, n., 1. 2. 386 b.] 386 b. ludaeus vero nihil proprium habere potest, quia quicquid acquirit non sibi acquirit sed regi, quia non vivunt sibi ipsis sed aliis, et sic aliis acquirunt et non sibi ipsis. 3l6 THE JEWS AND THE ENGLISH LAW 54, n. 2. 489.] 489. This ordinance was passed by the advice of the prelates and magnates only. No doubt the King could legislate for the Jews (his villeins) without the consent of the Commons, but this ordinance contains provisions affecting Christians also. See the Report on the Dignity of a Peer (1819), pp. 162-3. 55, n. I. 221.] 221. See Report on the Dignity of a Peer, p. 181. 63, n. 2. J. O. HoweU's] 20 Howell's 73, 1. 2. 1679] 1677 83, n. I. Scobell, part i. 86,1.5. volunt.] volunt''. Footnote: '^ Juv., Sat. X, 96. 97,1.4. compulsory,] compulsory ^ Footnote: * See the Ordi- nance for the better Observation of the Lord's Day, 1656, cap. 15 (Scobell, vol. II, p. 441, and Burton's Diary, vol. II, pp. 261-8 ; also the Humble Petition and Advice, clauses 9, 10, 11 (Gardiner's Constitutional Documents, p. 340, and Scobell, II, p. 378). 98, 1. 34. them."] them '." Footnote : ' Ellis's Original Letters illustrative of English History, 2nd series, vol. IV, pp. 1-2 1, Letter ccoix. 99, 11. 27-8. it . . . year,] it has not since been revived, 107, n. I. p. II.] p. II. An account of Edward Backwell, who died in 1683, is to be found in the Dictionary of National Biography, voL II, p. 321. He was a well-known goldsmith under the Common- wealth and Charles II, to whom he had advanced over £28,000 in the year 1660 (see 12 Car. II, c. 23, s. 37), and one of the founders of the modern banking system. He was the predecessor in business of the well-known firm of Child. Owing to the closing of the Exchequer by Charles II in 1672, he lost a sum of nearly £100,000; this money was afterwards (in 1677) repaid by a cheque on the Excise, but Backwell was ultimately made a bankrupt. See Aldei-man Backwell's case (1683) I Vernon, 152. n. 2, 1. I. ^ See] ^ And apparently still in the house of his kinsman Duarto Henriques. See 111, n., 1. II. 26] 2 b I. 16. 6 & 7] 7 & 8 1- 18. 33] 33 & 34 117, n. I, 1. 7. 272).] 272, at p. 282). 122, 1. 12. Violet,] Violet ^ Footnote: ^ In the Visitation of London, 1634 (MS. ColL Arras, c. 24) we find among other persons Thomas Vyolet of London, goldsmith ; grandson of Rafell V, born in Antwerp. Arms and Ped. (p. 382 b). See Lists of Foreign Protestants and aliens resident in England, 1618-88 (Camden Soc, vol. LXXXII, p. xv). 133, L 19. or] of 145, n., I. 3. gold] copper 1. 8. seq.)] seq.) By the Proclamation for the encouraging of Planters in His Majesty's Island of Jamaica in the West Indies, issued ADDENDA AND CORRIGENDA 317 on Dec. 14, 1661, which is regarded as the original charter of the Island, all copper and other mines (except gold and silver) within the "respective allotments shall be enjoyed by the grantee thereof, reserving only a twentieth part of the product of the said mines to our use." See Edwards' History of the West Indies, vol. I, p. 168 n. 146, n. I, 1. 9. 262.] 262. John Evelyn similarly describes a visit to the Synagogue at Amsterdam : see his Diary for August 19, 1641. 147, 1. 12. Ryoaut] Rycaut' Footnote: ' In the Visitation of London, 1634, we find Peter Richaut of London, merchant, grandson of Peter R. of Brabant. Arms and Fed. (198 b). See Lists of Foreign Protestants in London (Camden Society's Publications, vol. LXXXII, p. xv). 170, n. 11-12. as . . . and] omit 11. 33-4. 9 Geo. I, cap. 24] 10 Geo. I, c. 4 175, 1.4. punished.] punished'. Footnote: ' I should also add that the minister of a Jewish synagogue is not exempt from serving on juries unless the synagogue is duly registered, the words of the exemption being, "ministers of any congregation of Protestant Dissenters and of Jews whose place of meeting is duly registered, provided they follow no secular occupation except that of a school- master." See the Schedule to the Juries Act of 1870 (33 & 34 Vict., c. 77). 185, n., I. I. 2 Com.] 2 Camp. 200, 1. 4. take] takes 1. 6. c. 10] c. 4 n. 2, 1. 5. Burn] Burrows 216, n. I, 1. 8. observance by] observance (cf. Marshall y. Graham and Bell v. Graham [1907] 2 K. B. 112, in which it was held that Ascension Day was such a day for members of the Church of England) by 245,11.2,1.1. 1816] 1796 1. 4. 307-9.] 307-9. From the benefit of the previous Irish statute, 23 & 24 Geo. Ill, c. 38, Jews had been expressly excepted. 246, 1. 10. c. 27] c. 27, s. 19, 247, L 2. 1867,] 1867% Footnote: = Indeed, the Parliamentary Elections Act of 1835, which limited the time for taking the poll at Parliamentary elections in boroughs to a single day, enacted, as was necessary if the election was to last a single day only, that no elector at any election should be required to take any oath, any law or statute to the contrary notwithstanding (5 and 6 Will. IV, c. 36, s. 6). Henceforth it must have been exceedingly difficult, if not impossible, to prove that any particular elector had " refused " to take the oath or oaths. 287, 1. 24. Pakenham.] Pakington 3i8 INDEX Atarbanels, the, 88. Abbott, Mr. Justice, 32. Aberdeen, Lord, 277. Abjuration, oatb of, 226-g and 202, 206, 246, 267, 271 seq., 280. modified in favour of Jewish landowners required to take it, 170, 191. Abraham, Isaac, 236 n. Abrahams, Abraham, 205. Joseph, 206. Action, capacity of a Jew to bring, 185-91. Advowsou, capacity of a Jew to hold, 194-5, 242-4. Alderman, a Jew could not be before 1845, 254. Alderson, Baron, 276 n. Alexander, D. L., 184. Alien duties, 230 n. Alien enemies, were Jews to be held, 186 seq. Aliens, 229 seq. American colonies, 240. Amsterdam, Jews of, 84, 88, 118, 120. Anabaptists burned, 70, 71. Arians burned, 70, 71. Arlington, 134. Arundel, Archbishop of Canter- bury, 67. Ascamoth, 146, 157. Ashley, 134. Asquith, Mr., 263. Atonement, Day of, 184, 185, 247. Bactwell, Mr., 106 and 107 n., 316. Bacon, Nathaniel, 186. Ballot Act, 247. Bar, first Jew called to, 203-5. Baxter (the Puritan divine), 128 n. Baxter, Nadir, 25. Beaumont, Thomas, 2, 50, 153. Bedford Charity, the, 35. Benefit of Clergy, 195-8. Bentinck, Lord George, 298. Berkshire, Earl of, 147. Best, Mr. Justice, 14 ; afterwards Lord Wynford, 195 n. Bethell, Mr. (afterwards Lord West- bury), 273. Bigham, Mr. Justice, 184. Bingham, Lord, 284. Blackstone, Sir William, 197, 198 n. , 245, 258 n. Blasphemy, 10-12. act for the suppression of, 13-18, 167. Blood accusation, 9. Blunt's History of the Jews in England, 192. Bracton, 54 n. Bradlaugb, Mr., 11, 300. Breda, declaration of, 127, 132. Brereton, Dr., 39. Breta de, Jacob Mendez and Mary Mendez, 168, 169. Bright, Mr. John, 278. Brokers, Jews as, in the City of London, 200. Brooke, Justice, 189, igo. Brougham, Mr. (afterwards Lord), 172 n., 251, 293. Burnet, 96. Burton's Diary, 97. Campbell, Mr. (afterwards Lord), 204, 253, 276, 277 n. Canary Islands, 103-6. Carlyle, Thomas, 95. Caroline, Queen, trial of, 182 n. Cartwright, Johanna and Ebenezer, petition of, 84. Carvaial, Antonio Fernandez, 80, 98, no. Maria Fernandez, 143. Catechism, the Church, teaching in schools, 40, 44, 217. Cemetery, Jewish, at Mile End, 109-14. Chancellor, see Lord Chancellor. Charitable purposes, Jewish, i8 seq. Charles I, legal position of the Jews under, 77, 106, 125. Charles II, 50, 51, 128-31. his toleration, 125-41, 151, 152, 164, 172, 175. Chelmsford, Lord, see Thesiger. INDEX 319 Christianity part of the law of the land, II, 43, 186, 199. Christian names, 46. on the faith of, see Abjuration, Oath, Declaration, religion, denial of, 13 seq. Civil rights of English Jews, 177 seq. Clarendon, Lord, 134. Clarke, Mr., 204. Clergy, see Benefit of Clergy. Coke, Lord Chief Justice, 55 n., 57, 178, 185, 189-91. his theory of the banishment of the Jews, 58-9. Coleridge, Lord Chief Justice, 11, 210, 262. Colleges, 211, s«e Universities. Colonial trade closed to aliens, 235. Colonies, naturalization in, 240, =45- Committee appointed by the House of Commons in 1858 to consider the Lords' Amendments to the Oaths Bill, 288 seq. Commons, House of, orders In- quiry concerning the Jews, 148. " Compromise," the, on the Jewish Relief Bill, 291, 296 seq. upset, 301. Conventicle Act (1664), 133, 147, 148. (1670), 135, 161 n. Convention Parliament, 127. Corporation Act, 129, 161 n., 247 seq. Correa, Isaac, 235 n. Courtney, Sir William, petition of, 124 n., 142. Cowper-Temple clause, 217. Crompton, Rev. Thomas, 145. Cromwell, Oliver, 51, 80, 84, 88 seq., 94, 95, 97, 107-9, 1 15-21, 175- Riohard, 108. Curialitas, 56 n. Da Costa, Alvaro, 116. lists, 124 n., 142 n. De Caceres, Simon, no. Declaration not to injure the Es- tablished Church substituted for the Sacramental Test, 162, 250 seq. of Rights, 172. Delivera, Abraham, a, 8, 50, 154, 171. Denization, 234 seq. Denizens, Jews made, 144, 158, 236. De Paz, Elias, 19. De Porto, Abraham, 2. Derby, Earl of, 284, 287, 288, 292. Dispensers, act banishing the, 78. Directory for public worship substi- tuted for Book of Common Prayer, 83. Despensing Power, 131, 150, 154-8, 163, 171-3. Disraeli, Mr. (afterwards Earl of Beaconsfield), 280, 281, 287, 296, 298. Divett, Mr., 255 n. Dormido, Aaron, 237 n. Manuel Martinez, 88, 237 n. Solomon, 237 n. Droit d'aubaine, 230. Droit de renvoi, 232. Duneombe, Mr., 288. Dunnington, John Baptista de, 104. Ecbert's excerptiones, 52, 53. Ecclesiastical Patronage, Jews and, 256, 263, 294. see Advowson. Education, see Schools, Universities. of Christian and Jewish children together, 39-40, 47. Edward the Confessor, law of, con- cerning the Jews, 53. I and the Jews, 54 seq. VI, 68. Edwin, Sir Humphrey, 258 n. Eldon, Lord, 19, 21, 24, 35, 41, 46, 247 u. Elizabeth, Queen, 63, 69, 232, 237. Ellenborough, Lord, 185, 193. Ellis, (Jeorge, 206. Endowed schools, 213-15. Endowments for furthering the Jewish religion, 18 seq. Erskine, Lord, 182 n. Thomas, 205. Established Church, declaration not to injure, 250 seq. Evans, Allen, 259. Evelyn, John, memoirs quoted, 94, 146 n.. Addenda. Exchequer of the Jews, 54. Excommunication, 187. Eyre, Lord Chief Justice, 182 n. Fawkes of Breaut^, 66. Finta, 146. Five Mile Act (1665), 134, 161 n. 320 THE JEWS AND THE ENGLISH LAW Foley, Mr. Paul, 165. Foster, Sir Michael, 197. Foundling Hospital, 21. Fox, George, the Quaker, 86. Francia, Domingo, 2. Francis, 179. Fundao, 103. Gardiner, Dr., 100, 109. Gaster, Dr., 124 n., 147 n., 151 n., 158 n. Gifford, Sir Robert, 41. Gill, Robert, 206. Gladstone, Mr. W. E., 263. Glynn, Lord Chief Justice, i, 91. Godwin, Mr., 97, no n. Goldsmid, Benjamin, 194. Isaac Lyon, 37, 205. Francis, 193, 204, 205. Grant, Mr. Robert, 193, 265. Granville, Earl, 283, 293. Grattan, Mr., 250. Greenhalgh, Mr. Jo., 98, 145. Grenville, Lord, 232. Grey, Sir George, 302. Grote, Mr., 254 n. Gunpowder Plot, 75, 222, 224 n. Haggard, Dr., 95. Haham, 147. Hale, Lord Chief Justice, 20, 178. Hales, Sir Edward, 156 n. Hall, Vice-Chancellor, 30. Hardwicke, Lord Chancellor, 20, 180, 2or, 241. Hardwicke's Marriage Act, 170. Hargrave, Mr., on villenage, 63. Harper, Sir William, 35. Hawkins' Pleas of ilie Crovm, quoted, 74- Henrietta Maria, 79. Henriques, Daniel Bueno, 237 n. Duarto, 104, Addenda, 107 u. Jacob Joshua Bueno, petition of, 145 n. Joseph, 3, 13 n., 50, 154, 171, 235 n- Henry III, 54, 57. IV, 67, 69. V, 69. VIII, 68. Herbert, Chief Justice, 156 n. Heresy, law of, 65-73. High Commission, Court of, 71-3, 82. Higher Grade Schools, ai8. Holland, Lord, 251. HoUis, Mr., 144. Holt, Chief Justice, 10, 150 n. Hoveden, 53 n. Indemnity Acts, 203, 208, 249, 250, 252 and note. Independents, the, 83, 86. Indulgence, declaration of, (1662), 130. (1672), 136-9. (1687), 156. Industrial Schools, 220. Infidels, status of, 186-91. Inglis, Sir Robert, 265. Inquisition, the, 71, 103. Instrument of Government, the, 87, 117. Ireland, naturalization in, 245 n. Isaac, Benjamin, 22. Jamaica, 145 n., 241 n. James I, 119, 147. II, 51, 116, 152-8, 172, 176, 226. See also York, Duke of. Jeffreys, Lord Chief Justice, 189. Jekyll, Sir Joseph, 289. Jenner, Sir Herbert, 29. Jerusalem, Trust for the political restoration of the Jews to, 25. Jessel, Sir George, 12. Jesuits, 224. Jewish disabilities removal act, 255. Relief Bill (1858), 293-7. Relief Act Amendment Act (i860), 301. Jewish religion, attacks on, 2. receives the benefit of the Tolera- tion Act, 23, 208. religious education board, 217. Jews compelled to maintain their Protestant children by Act of Parliament, 3-9 ; 167-9. their right to participate in general endowments and chari- ties, 34 seq. their status after the Norman Conquest, 53. of Amsterdam, 84, 88, 118, 120. their banishment, 55 seq. their return, date of, 49, 175. crypto, 80. period between their banishment and return, 62. their legal position in Charles I's reign, 77. and Cromwell, 115-18. and Charles II, 119-22, 124-7, 142-52. and James II, 153, 154, 157. INDEX 321 freedom from crime in early days, 198. Civil Disabilities Bill, 265 soq. Joseph, Joseph, 40. Michael, 37, 39, 40. Nathan, 39. Judaei, 64. Judicial Oath, 228 n., 276. Jury, exemption of Jewish minister from serving on, Addenda, 175 n- Eaddish, 26. Kelly, Sir Fitzroy, 287. Kenyon, Lord, 182, 183 n. King, John, 182. King, Lord, 8. Knevett, Francis, 104. Knight-Bruce, Sir P. L., 25. Laud, capacity of Jews to hold, 191-4. Langdale, Sir Marmaduke, 1 18, 1 19. Langton, Stephen, 66. Laud, Archbishop, 71, 7a. Law Merchant, 184. Lee, Lord Chief Justice, 181. Lee, Sir Thomas, 165. Legacies for Jewish religious pur- poses, 18 seq. Legal profession, exclusion of Jews from, 202-6. Legatt, Bartholomew, 70. Levi, Godfrey, 39. Lewis, 193. Samuel, 145. Littleton, Lord Keeper, 189. Llandaff, Bishop of, 251. Lollards, 65. Lollardries, 68. London, petition against the Jews (1660), 121, 143. petition against the Jew Bill (1753), 243- , „.^ ^ ^^ freedom of the City and the Jews, 199-202. Dissenters and the Shrievalty, 258. elects Baron L. de Rothschild to Parliament in 1847, 267. Long Parliament, 72, 73. Lopez, Rodrigo, 63. Lord Chancellor, a Jew may now be, 261-3. Lord Lieutenant of Ireland, a Jew may now be, 261-3. Louis XIV, 226. Louzada, James Baruch, 336 n. Lucan, Earl of, 291, 293. Luttrell, Narcissus, 167. Lyndhurst, Lord, 194 n., 255, 277 u., 284, 288, 292, 293. Lyon, Joseph, 37, 39, 40. Lemuel, 40. Sheba, 37. Macaulay, Lord, 137, 166 n. Macclesfield, Earl of, 4. Madox, History of the Exchequer, 5711. Magna Charta, 61, 117 n., 229, 230. Magpie Alley, synagogue in, 22. Malmesbury, Earl of, 269 n., 292. Mansfield, Lord, 19, 160, 182 n., 260. Marcus, Moses, 6. Marriages, act imposing taxes on, mentions Jews, i66. Martin, Baron, 275. Martiues, Philip, 236 n. Mary I, 69. Mathias, Jone, 236 n. Menasseh Ben Israel, i, 51, 61, 85, 88-93, 95 seq., 112, 115. Petition to Richard Cromwell on behalf of his widow, 108. his son's burial, 112. Mendez, Jacob Franco, 2. Meres, Frances, 236 n. Judith, 236 n. Michel, Abraham, 26. Middleton, Lieut.-Gon., 120, 142. Milner-Gibson, Mr., 280, 299. Municipal Offices, see Corporation Act. Insignia of, 257. Natural-bom subjects, 233. Naturalization, 237 seq. Act (1740), 170, 240. Act (i753)> 163 n-. '71, 241. Navigation Act (1651), 88. (1660) and (i66[), 144, 231, 235. Newcastle, Duke of, 243. Newcome, Henry, visit to tlio Synagogue, 146 n. Newdegate, Mr., 287, 296. New Testament, a Jew may be sworn on, 182. practise of administering the oath on, 198 seq., 267, 269, 270. Nicholas, Sir Edward, 115, 118. NoUe prosequi, 150. Norwich, Bishop of, 243. Notice of dishonour of a negotiable 322 THE JEWS AND THE ENGLISH LAW instrument on a Jewish holi- day, 184. Nye, Mr., 6r, 91. Oath, the ex officio, 71, 72. juridical, 178-83. promissory, 198 seq., 256-7, 304-5. effect of, 229. mode of administering, 229. of adjuration, 226, also 170. of abjuration (Jew) Bill, 270. ofallegianee and supremacy, 221- 9, also 76. Parliamentary, see Parliament. OfSoe, sec Corporation Act, Ecclesi- astical Patronage, Test Act, &c. Official oath, 228 n. Ormonde, Duke of, Papers quoted, 85- Osborne, the King v., 9. Mr. Bernal, 271. Pacheco, Aaron, 3, 50, 52, 53, 154. Pakington, Sir John, 283, 287. Palmerston, Viscount, 280, 281, 284, 287, 299. Papal claims, 280. Parker, Lord Chief Baron, 180. Parliament, admission of Jews to, 265 seq. attitude of, towards the Jewish settlement, 164-71. Parliamentary Committee, mem- bers though not sworn may serve on, 289. franchise, 246. Party politics, advantage of keeping the Jewish question out of, 298-300. Pease, Mr. Joseph, the Quaker, 268 n. Peel, Sir Robert, 250, 255, 298. Peers, Jews admitted to the House of, 302 seq. Pelham, Mr., 241. Pellatt, Apsley, 201 n. Pepys, Samuel, visit to the Syna- gogue, 146. Pereira, Isaac, 235 n. Perjury, 180-3. Petitions against the Jews at the time of theKestoration, 142 seq. Petition by the Jews of Amsterdam, 60, 84. Menasseh's second, 92. of the Jews for protection, 1664, 147. •67!, a, 149- 1685, 2-3, 154. of the Jews against special taxa- tion, 1689, 164-6. Petty custom, 231 n. Picciotto's sketches of Anglo- Jewish History, 41 n. Political rights, 221 seq. Pollexfen, 187. Pollock, Sir F. (Chief Baron), 275. Essays in Jurisprudence, 228 n. Poor Law Schools, 219. Powle, Mr. Speaker, 165. Prayers for the souls of the dead, 26-30. " Presbyterians, 83. Pretender, the, 226. Profaneness, statute against, 13- 18. Proselytism by Jews, 15. Prynne, quoted and commented on, 52, 59-62. Quakers, 129, 159, 161 n., 167, 171. admission to Parliament of, 268 n. obtain privileges as to taking oaths earlier than Jews, 200 ; as to making declaration, 253. Eathom, Abraham, 199. Kawlinson, Mr., visits the Syna- gogue with Pepys, 146. Raymond, Lord, g, 20, 191, 199. Recusants, 75, 113. conviction of, in recent times, 172. laws against, modified, 86, 87. laws against, repealed, 163. Reformation, the, its consequences to the Jews, 65 seq. Reformatory schools, 219. Registration of synagogues, 1 73-5. Religious instruction, see Schools. Remonstrance concerning the Jews, 142. Resettlement Day, 99. Restoration, the, 125. Revolution, the, 158, 225. Richard II, 60. Ridley, Mr. Justice, 184. Robles, Antonio Rodrigues, 102-7. Roebuck, Mr., 300. Roman Catholic Relief Acts, 161 and id. note. Romilly, Sir John, 27, 29. Sir Samuel, 41, 46 n., 193, 194 n. Rothschild, Baron Lionel de, 267 seq., and 269, 281, 285, 288, =9'> 397, 300. INDEX 323 Eothsohild, Anthony de, 269 n. Sir Nathaniel de, made a Peer, 304- Roumanian law as to aliens, 233 n. Russell, Lord John, 249, 251, 268, 269, 270, 271, 277, 278, 281, 284, 286, 296, 297, 299. Rycaut, Mr., 147. Sabbath, the Jewish, recognized by the Courts and the Law Mer- chant, 183-5. see Ballot Act. Sacrament of the Lord's Supper, 238, 245, &c. see Naturalization, Corporation Act, Test Act. Sadler, John, 107-9. Salomons, David, 253, 254-6, 277n., 300- attempt to take his seat in Parlia- ment, 270-7. Sandwich, 231 n. Sasportas, Samuel, 236 n. Sawtre, William, 67, Sawyer, Sir Robert, 188. Saxon times, Jews in England in, 51-3- Schoolmasters, Jews and the pro- fession of, 206. Schools, 212-20. Shad well. Sir L., 23. Shaftesbury, Earl of, 278. Sheriff, declaration by, 253. device of fining Dissenters for refusing to serve as, 258-61. Shrewsbury, Earl of, 166. Solicitors, Jews admitted as, 205. Spain, treaty with England, 79, 175. war with England, 102. Spaniards, Jews settle in England as, 80-2. Spring Rice, Mr., 266. St. Leonards, Lord, 193. Stanhope, Earl, 281, 292. Statutes restricting the rights of the Jews, 54. see Table of Statutes, p. xxi. Steel, Lord Chief Baron, i, 91. Stirling, Lord Justice, on the date of the return of the Jews to England, 49-52. Stowell, Lord, 191 n. Suffolk, Earl of, 119, 147. Superstitious use, 27 seq. Swift, Dean, 258 n. Synagogues, actions for seat rents in, 3a. theory that Cromwell authorized the building of, 107-9. first real evidence of existence of, 122, 144-9. registration of, 173-5. Taxation, attempt to lay special, on the Jews, 164-6. Technical Schools, 218. Temple, Lord, 192. Test Acts (1673) and (1678), 139- 40, 154-8, 161 n., 248 seq. Theodore, Liber Poenitentialis of, 52, 53- Thesiger, Sir Frederic (afterwards Lord Chelmsford), 279, 281, 282, 287, 288, 292, 300, 301. Time-table in public elementary schools, 2i6. " Tolerance '' said to have been granted by Cromwell in Febru- ary, 1658, 97-9. Toleration, 96, 127-41, 152-8. Toleration Act, 9, 19, ao, 159, 161- 3, 260. extended to the Jews, 23, 163, 171. Tovey, Dr. De Blossiers, 192, 198. Transubstantiation, declaration against, 140, 248, 250. Tresham, Francis, 224 n. Tucker, Dean, 120 n. Turner, Sir Edward, 128. Tyril, Mr. Justice, 124. Uniformity, the Law of, 73 seq., 163. Act of (r66o), 130. Unitarians, 15, i6r. Universities, the, and Dissenters, 208-11. Usury, 54, 56-60. Villeins, status of, similar to that of the Jews, 53, 62, 65. ■ special status of Jews as, 188-9. Villenage, disappeaj-ance of, 63-5. Vindiciae ludaeorum, 92-5. Violet, Tliomas, 99, 122-4. Walker's History (if the Jndepende^mj, 84, 96- Walpole, Mr. Spencer, 285. Warren, Mr., 297. Webb, Carteret, 116, 144 n., 192 n., 236. Wellington, Duke of, 25r. West Indian Islands, 241. 324 THE JEWS AND THE ENGLISH LAW Whitehall Conference, i, 89. Whitley, Colonel, letter to Sir Ed. Nicholas, 115. Wilberforce (Bishop of Oxford), 284. Willes, Chief Justice, 180, 181, 189. William I, 49. Wilson, Colonel, 193. Witnesses, right of Jews to be, 178-83. Yatea, Mr. Justice, 206. Yesiba, ig. York, Dukeof (afterwards JamosII), 137, 249- Oxford: Hohace Habt, Printer to the University