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THE JEWS AND THE ENGLISH LAW 275 



THE JEWS AND THE ENGLISH LAW. 

II. 

We have seen that since the year 1685 1 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 2 ." The preamble runs: 
" Whereas many persons have of late years 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 

1 The Order in Council in answer to the Petition of Joseph Henriques 
and others having been made on November 13 of that year. 

2 9 Will. III. c. 35, more commonly cited as 9 & 10 Will. III. c. 32. 

t a 



276 THE JEWISH QUARTERLY REVIEW 

than one, or shall deny the Christian religion to be true, 
or the Holy Scriptures 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 K 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 country, 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 
offices who showed they were under no religious respon- 
sibility. 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 

1 See Bex v. Richard CarlUe, 3 B. & Aid. 161 (1819). See also Lord Eldon's 
remarks, 3 Mer. p. 406 seq. (1817). 



THE JEWS AND THE ENGLISH LAW 277 

statute are necessary ; the first to guard the morals of the 
people ; the second for the immediate protection of the 
government 1 ." 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 2 , 
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 organization 
were established among the Jews for this purpose. For 
though the offence 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 
are 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 affirmed 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 3 ," 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 

1 3 B. & Aid. p. 166. 2 53 Geo. III. c. 160, s. 2. 

* Cobbett's Pari. History, vol. V, p. 1172. 



278 THE JEWISH QUARTERLY REVIEW 

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 1 . 
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 

1 Commons' Journals, May 18, 1698. 



THE JEWS AND THE ENGLISH LAW 279 

true Christian Religion; for which Reasons the Commons 
disagree with your Lordships in the said Amendment 1 ." 
The Lords showed that the ruin and expulsion of the Jews 
was not intended, by allowing the Bill 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 shrouded 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 Christianity, 
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 
1 Commons' Journals, May 21, 1698. 



280 THE JEWISH QUARTERLY REVIEW 

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 Jews, 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 281 

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 1 . 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 1846 that Jewish religious endowments were made 
valid. Several cases came before the courts ; for instance, 
in the year 1 744 the case of Da Costa v. De Paz was tried. 
It is reported in Ambler at p. 238, and in 1 Dickens at 
p. 258 ; but as Lord Eldon, in giving his decision in 
Moggridge v. Thaclcwell, complained that these reports are 
not very accurate 3 , the subjoined account is taken from 
a note extracted from Mr. Coxe's MSS. in Lincoln's Inn 
Library by Mr. Swanston 4 . 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 

1 Att.-Gen. v. Baxter, 1 Vern. 248, decided in Trinity Term, 1684, revised 
in 1689 after the Revolution, 2 Vern. 105. 

2 3 Mer. p. 376 (note). 3 See 7 Ves. p. 76. 
4 2 Swanston, p. 487 seq. 



282 THE JEWISH QUARTERLY REVIEW 

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 : first, 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 me 
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 Hale 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 283 

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 j^iuoo, 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 j^iooo, part of the sum of a£°i20o, 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 j£ a aoo, 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 V 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 2 

1 In Att.-Gen. v. Mayor of Bristol, 2 J. & W. 308 (1820). 

2 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. 



284 THE JEWISH QUARTERLY REVIEW 

a Foundling Hospital, rather than that the money 
should not be applied : but the court has said so 
always V 

Da Coda 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. Gornpertz, which came before the MaBter of the 
Rolls in 1783, but was not finally decided till 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 2 for the support and 
maintenance of the Jews' Synagogue in Magpie Alley; 
and -=£30 for teaching and instructing ten poor Jews' 
children in London ; £ao 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 Alley, 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 3 ." The legacy was ultimately divided into 

1 Moggridge v. ThackweB, a Ves. p. 81 (1802). 

2 Ambler's note gives £io ; but this must be a misprint. See the end 
of the note. 

3 See Ambler, p. 228 (note), and 7 Ves. p. 61. 



THE JEWS AND THE ENGLISH LAW 285 

moieties ; one moiety being given to the Magdalen Hospital, 
the other to the London Infirmary l . 

It would not be right while dealing with this subject to 
omit the case of Straus v. Goldsmid, heard by Sir L. 
Shad well, 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 2 . 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 183 a 3 , 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 % provides: "That 

1 See note to Att.-Gm. v. Burgman, 1 Dickens, p. 169. 

1 8 Simeon, pp. 614-5. 3 2 & 3 Will. IV, c. 15. 

4 9 & 10 Vict c. 59. 



286 THE JEWISH QUARTERLY REVIEW 

from and after the commencement of this Act Her Majesty's 
subjects professing the Jewish Religion 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 
such 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 1 ." 

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 

1 Ati.-Gen. r. Pearson (1817), 3 Mer. 353, at p. 409. 



THE JEWS AND THE ENGLISH LAW 287 

always given a wide interpretation to the Acts of Toleration 
and even made them retrospective in their operation 1 , 
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 third. The first is Habershon v. Vardon, which 
came before Vice-Chancellor Sir P. L. Knight-Bruce in 
1851. Nadir Baxter had by his will, dated in 1842, directed 
as follows: "That other ^1,000, 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 

1 See Bradskaw v. Tasker, 221 (1834, before Lord Brougham). The 
correctness of the decision in this case was doubted by Sir Ed. Sugden 
(L.C.) in Att.-Gen. v. Drummond, 1 Or. & War. p. 380 (1842), but was followed 
by Sir John Bomilly (M.R.) in re Michel's Trusts, 28 Bear. 39 (i860). 



288 THE JEWISH QUARTERLY REVIEW 

Jerusalem, and to their own land." The Vice-Chancellor 
held that the gift of ^1,000 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 1 ." 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 ^ J io 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 j^io 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 2 ; and in case 
there should be no one of my family qualified thereto, then 
or in such case my will and mind is, that the said parnosim 
or wardens pay the same to three persons qualified." 
1 4 De 6. & Sm. 467. a Thus spelt in the report ; properly Kaddish. 



THE JEWS AND THE ENGLISH LAW 289 

The testator died in 18:21, 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 parnosim 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 Kolls, 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 offered 
up on the anniversary of the death of the testator must be 

VOL. XIII. u 



290 THE JEWISH QUARTERLY REVIEW 

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. 
Shuttleworth 1 and Heath and Chapman 2 I have always 
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 

1 2 Myl. & K. 684. a 2 Drew. 417. 



THE JEWS AND THE ENGLISH LAW 29I 

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 V 

In re Michel's Truds 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 are 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 2 . Before 
the Reformation trusts of this nature were considered valid 
and enforced by the courts, but in the reign of Henry VIII 
and Edward VI two statutes 3 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 

1 In re Micliel's Trusts, 28 Beav. pp. 39-43. 

2 Breecks v. Woolfrey, 1 Curt. Eccl. Rep. 880. 

3 23 Hen. VIII. c. 10, repealed by the Mortmain and Charitable Uses 
Act, 1888, and 1 Edw. VI. c. 14. 

u a 



292 THE JEWISH QUARTERLY REVIEW 

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 permitted, 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. 
Shuttleivorth, which I cannot overrule V And in a recent 
case Vice-Chancellor Hall held as a matter of course that 
a bequest of afe'io, to be expended in saying masses for the 
testator's soul, was void 2 . 

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 different, 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 3 . 

Gifts given for this purpose are simply void, but there is 
no power in the court or in the Crown to apply them 

1 In re Blundell's Trusts (1861), 30 Beav. p. 360. 

2 In re Fleetwood, Sidgreaves v. Burder (1880), 15 Ch. D. 594, at p. 609. 

3 See in re Elliott (1891), W. H. p. 9, where Mr. Justice North held that 
a bequest of £2,000 to the Priests of the Society of Jesus at Richmond, 
Victoria, to be 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 AND THE ENGLISH LAW 293 

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 
Montague Smith in the case of Zap Ghea Neo v. Ong 
Cheng Neo, 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 dead 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 spirits of their deceased 
relatives. This usage, with the accompanying ceremonies, 
is minutely described by Sir P. Benson Maxwell, in his 
judgment in the case oiGhoah Chron Wish v. Spottiswood 1 : — 
" 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 close analogy to gifts to priests for 
masses to the dead. 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. Shuttle- 
worth 2 , not to be a charitable use, and, although not 

1 Wood's Oriental Cases. 2 2 Myl. & K. 684. 



294 THE JEWISH QUARTERLY REVIEW 

coming within the statute relating to superstitious uses, 
to be void 1 ." 

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 synagogues. 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. R. 6 P. C. p. 396 (1875). 



THE JEWS AND THE ENGLISH LAW 295 

ments were 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 1 . The objection was accordingly overruled ; how- 
ever, 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. Be Paz and Isaac v. Gompertz 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 course 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. H & Q Henriques . 

1 2 Starkie, pp. 356-9. 

(To be continued.)