Skip to main content

Full text of "The Civil Rights of English Jews"

See other formats


Early Journal Content on JSTOR, Free to Anyone in the World 

This article is one of nearly 500,000 scholarly works digitized and made freely available to everyone in 
the world byJSTOR. 

Known as the Early Journal Content, this set of works include research articles, news, letters, and other 
writings published in more than 200 of the oldest leading academic journals. The works date from the 
mid-seventeenth to the early twentieth centuries. 

We encourage people to read and share the Early Journal Content openly and to tell others that this 
resource exists. People may post this content online or redistribute in any way for non-commercial 

Read more about Early Journal Content at 
journal-content . 

JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people 
discover, use, and build upon a wide range of content through a powerful research and teaching 
platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not-for-profit 
organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please 



Having already surveyed the manner in which a Jewish 
community was allowed to grow up in England, and the 
Jewish religion which was at first extra-legal and the pro- 
fession of which, but for the dispensing power of the Crown, 
would have involved serious criminal consequences, was 
at length legalized by being admitted to the benefit of the 
Toleration Act ; it remains to consider the legal rights of 
professed Jews. 

This subject may be conveniently divided here into two 
heads, civil and political rights; for though it is true 
that these two adjectives are really synonymous, the one 
being a Latin word and the other its Greek equivalent, 
and that, in a country with a popular form of government, 
no very sharp line of demarcation can be drawn between 
them, yet the distinction is intelligible and useful for our 
present purpose ; civil rights including the power to pro- 
tect from wrong both person and property, and political 
rights the power to take part in the legislation and govern- 
ment of the country. The obvious intention of some of 
the enactments of the latter half of the seventeenth century 
was to exclude from any share in the government all who 
were not members of the Anglican Church ; but as to civil 
rights, with which we will first deal, there were no special 
enactments concerning the Jews, and they had to take the 
law as they found it, without any exceptions in their 
favour in cases where, owing to their own peculiar customs 
and laws, it would have been not unreasonable to look for 

We have seen that before the expulsion of the Jews in 

' This paper forms the eighth of the series on " The Jews and the 
English Law." 


1290 there had been in force several statutes exclusively 
relating to them, but that these statutes could not affect 
the Jews on their return in the seventeenth century because 
they were no longer in the position of bondsmen of the 
king; but, on the other hand, the method of applying 
the common law of the land to the Jews that had been in 
vogue before their banishment, in so far at least as it was 
not a necessary consequence of the status of villenage 
which no longer existed, could be and, when substantial 
justice would thereby be done, actually was revived by the 
courts of law. The cases in which such application was 
most necessary were the celebration of marriage and the 
administration of the oath in courts of justice. The law 
as to the marriage of Jews must be left to a separate 
article, and it will suffice now to deal with the capacity of a 
Jew to be a witness, and his right to be sworn in a manner 
binding upon his own conscience, namely, on the Pentateuch 
or the Old Testament, instead of upon the New Testament. 
Lord Coke^, writing anterior to the resettlement, laj'S 
down that an infidel cannot be a witness, and there is little 
room for doubt that he meant to include Jews, whom he 
generally calls infidel Jews. Sir Matthew Hale — in a passage 
of his History of the Pleas of the Crown, which, though the 
work was not published till after his death, on Christmas 
Day, 1676, must have been written before the point was 
decided by the Courts, for there is no reference to the 
decision — takes a very different view. "It is said," he 
writes, " by my Lord Coke that an infidel is not to be 
admitted as a witness, the consequence whereof would 
also be that a Jew (who only owns the Old Testament) 
could not be a witness. But I take it, that although the 
regular oath, as it is allowed by the laws of England, 
is 'tactis sacrosanctis Dei evangeliis,' which supposeth 
a man to be a Christian, yet in cases of necessity, as in 
foreign contracts between merchant and merchant, which 
are many times transacted by Jewish brokers, the testi- 

1 Co. Lit., 6 b. 


mony of a Jew ' tacto libro legis Mosaicae ' is not to be 
rejected, and is used, as I have been informed, among all 
nations. Yea, the oaths of idolatrous infidels have been 
admitted in the municipal laws of many kingdoms, espe- 
cially ' si iuraverit per verum Deum creatorem,' and special 
laws are instituted in Spain touching the form of the 
oaths of infidels. And," he adds, "it were a very hai'd 
case, if a murder committed here in England in presence 
only of a Turk or a Jew, that owns not the Christian 
religion, should be dispunishable, because such an oath 
should not be taken, which the witness holds binding, and 
cannot swear otherwise, and possibly might think himself 
under no obligation, if sworn according to the usual style 
of the Courts of England. But then it must be agreed 
that the credit of such testimony must be left to the 
Jury^." It was not long before the point had to be 
decided. In the case of Robeley v. Langston, which was 
tried in the Court of King's Bench in the month of 
January, 1667, several Jewish witnesses were produced 
and the Chief Justice swore them upon the Old Testament 
only ; whereupon an objection to their evidence was taken 
on the ground that if it was false, it would not render them 
liable to a prosecution for perjury, but the Court overruled 
the objection'^. The same practice was adopted in the 
Court of Chancery, though it was apparently not found 
necessary to introduce it until Michaelmas Term, 1684, 
when '■ a Jew being to put in an answer upon a motion, it 
was ordered that he should be sworn upon the Pentateuch, 
and that the plaintiff's clerk should be present to see him 
sworn 3." Nevertheless the swearing of Jews in this 
manner was for some time regarded as exceptional, and as 
such we find references to it in the reports, for instance, in 
the report of Francia's trial for high treason, in 1717, 
mention is made of the fact that the witness Gonsales was 
sworn on the books of Moses ; and as late as the year 1729, 

' Mist. Placit. Coronae, part II, p. 279. 

' a Keble, p. 314. » 1 Vern., p. 363. 


in the case of Gomez Serra v. Muncz, there is a note that 
" the bail in this case being both Jews were suffered to put 
on their hats while they took the oath ^," At length, in 
Michaelmas Term, 1 744, the whole question was discussed 
in the well-known case of Omychund v. Barker, in which 
Lord Chancellor Hardwicke, assisted by the heads of the 
three common law courts, decided that all persons who 
believe in a supreme being, who will punish them if they 
swear falsely, are competent witnesses, and should take 
the oath in the form binding upon them according to the 
tenets of their religion. In the course of his judgment 
Chief Justice Willes says, " It is plain both from Madox's 
History of the Eocchequer,^^^. 167 and 174, and from Selden, 
vol. Ill, p. 1469, that the Jews here in the time of 
King John and Henry the Third were both admitted to 
be witnesses and likewise to be upon juries in causes 
between Christians and Jews, and that they were sworn 
upon their own books or their own roll, which is the same 
thing. I will likewise oppose " [to Lord Coke's assertion] 
"the constant practice here almost ever since the Jews 
have been permitted to come back again into England; 
viz., from the 19 Car. II (when the cause was tried which 
is reported in 2 Keble 314) down to the present times, 
during which I believe not one instance can be cited in 
which a Jew was refused to be a witness and to be sworn 
on the Pentateuch 2." 

The Court further held that perjury might be assigned in 
cases where the special form of oath had been administered. 
The objection that this could not be done was taken by 
counsel for the defendants, who desired to exclude the evi- 
dence of persons of the Gentoo religion taken on commis- 
sion in India on the ground that the words tadis sacris 
evangeliis were necessary words in an indictment for 
perjury. Upon this objection Lord Chief Baron Pai-ker 
said, " This is not true in fact ; but supposing it was, yet 
this is not the only case where witnesses cannot be prose- 

1 See XV St. Tr., p. 961 and a Strange, p. 821. * Willes, p. 543. 


cuted, for there is no possibility of prosecuting them where 
the depositions are taken out of England ; but if they were 
here, I should be of opinion they might be indicted upon 
a special indictment, for I do not think tadis sacris evan- 
gdiis are necessary words, for several old precedents are 
that the party was iuratus generally, or debito more iura- 
tus'^." And Chie.f Justice Willes dealt with the point in 
the same way, saying, " This objection has been in a great 
measure already answered by the Chief Baron, and it may 
receive two plain answers; first that these words, supra 
sacrosancta Dei Evangdia or tadis sacrosandis Dei Evan- 
geliis are not necessary to be in an indictment for perjury. 
They have been omitted in many indictments against Jews, 
of which several precedents have been laid before us ; and 
they are not in the precedents of such indictments which 
I find in an ancient and very good book, entitled West's 
Simholiography ; but it is only there said supra sacramen- 
tum suuTTi dixit et deposuit or affirmavit et deposuit. 
Besides, this argument if it prove anything, proves a good 
deal too much; for if there were anything in it, many 
depositions of Christians have been admitted, and many 
more must be admitted or else there will be a manifest 
failure of justice, where the witnesses are certainly not liable 
to be indicted ; for when the depositions of witnesses are taken 
in another country, it frequently happens that they never 
come over hither, or if they do cannot be indicted for 
perjury because the fact was committed in another 
country ^." 

It is plain from the report that several prosecutions had 
been instituted against Jews for peijury because precedents 
bad been searched and brought before the Court ; but, on the 
other hand, such prosecutions must have been very rare, for 
when in the course of his argument the Solicitor-General 
was requested by the Lord Chief Justice to deal with the 
point, he declared, " There is no instance of a Jew's being 
indicted for perjury." Lord Chief Justice Lee, "I have 

1 I Atk., p. 43. " Willes, pp. 553, 554- 


tried a 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 lihro legis 
Mosaicae ''-." Half a century later it became necessary to 
hold that a Jew who professed belief in the doctrines of 
Christianity might, although never formally admitted to 
Christianity, be sworn in the common form on the New 
Testament. In the case 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 sufficiently binding^. 
As questions of this kind occasionally arose ^ the Act 

' I Atk., p. 35. For the report of the case see i Atk., pp. 21-30 ; 
I VyUson, p. 84, and Willes, pp. 538-54. 

^ Rex V. Gilham (1795), i Esp., p. 286. See also 6 T. R., 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, 
1 Parke, 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 
Revelations that the angel standing upon the sea held up his hand.' . . . 


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 
of the courts of law admitted Jews as competent witnesses 
and allowed them to take the oath according to their own 
usages. They also showed, still further, a spirit of tolera- 
tion by no means universal in the seventeenth century, for 
they in some instances actually arranged their cause lists 
in such a way as to allow cases in which it was known 
Jews would be material witnesses to be heard on days other 
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. 
{Hans. Pari. Deb., and series, vol. II, p. 912). 
' s Mod. Rep., p. 971. 


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 
Couii. This example was stUl 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 
Eabbi and the members of the Liverpool Schechita Board 
should be concluded before the commencement of the 
JeMsh Sabbath. 

In the same generous spirit, if we may make a short 
digression, the courts in enforcing the law merchant, 
which is incorporated in the common law, have had 
regard to Jewish religious scruples and have held the 
necessity of observing the Jewish Sabbath or other holy 
day set apart by the Jews for religious purposes a special 
circumstance excusing a Jew in the habit of observing it 
from performing on that day any act of business which 
otherwise would be incumbent upon him ; for instance, in 
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 point was decided as long ago as 181 1, in the case of 
Lindo V. Unsworth, Then 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 EUenborough 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 of a Jew to be a witness was decided soon after the 
resettlement in a manner contrary to the view held by Lord 
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), a Com., p. 603. See also Tassel v. Lewis 
(1695), I Lord Raymond, p. 743, and the Bills of Exchange Act, 1882, 
Sec. 49 (12) and sec. 92. 


The alleged incapacity to sue was also supported by similar 
reasoning. Christianity being part and parcel of the law of 
England, those who did not profess it could not have the 
rights of Englishmen but, whether born 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 
infidels are in law perpetui inimici, perpetual enemies (for 
the law presumes not that they will be converted, that 
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, a Cor. vi. 15 'Quae autem con- 
ventio Christi ad Belial, aut quae pars fideli cum infideli ? ' 
and the law saith, 'ludaeo Christianum nullum serviat 
mancipium, nefas enim est quem Christus redemit bla- 
sphemum Christi in servitutis vinculis detinere.' Register 
387 ' Infideles sunt Christi et Christianorum inimici.' And 
herewith agreeth the book in 12 H. 8, fol. 4, where it is 
holden that a Pagan cannot have or maintain any action 
at all^" 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. VII. 17 a, 17 b. 

' Hiskricctt Discourse on tJie Uniformity qf t/ie Government of England, part II, 
cap. 8, edition of 1647, p. 78. 



words of Loi"d Coke's proposition embodied in Wingate's 
Maxims of Reason or the Reason of the Common Laiv 
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 enlai'ged 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 
ti-ade 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 PoUexfen 
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 of 1658, p. 10. 

" Co. upon Lit., 138 b. This disability continued until 1813 when it was 
removed by statute (53 Geo. Ill, cap. 127, sec. 3). For the effect of 
excommunication and its employment before the passing of this statute 
see Leeky, Bist., vol. Ill, pp. 494-6. 


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 ^." 
Sir 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 tlie time of their expulsion ^. The 
court ultimately decided the case, which was pending for 
nearly two years, 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^. 

Before, however, this judgment was given, the point was 
raised in a separate case in the Court of King's Bench in 
Michaelmas Term, 1684. The case is noted in Lilly's 

» X St. Tr., p. 447. 

2 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. 366-73, and 
Skinner, ppj 132-7, 165-73, 197-204, 223-6. 

E 2 


Practical Begister as follows: "A Jew brought an action, 
and the defendant pleaded that the plaintiff is a Jew, and 
that all Jews are perpetual enemies Regis et Meliglonis." 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 

A few years later, in 1697, the point was again referred 
to in Wells v. Williams in the Court of Common Pleas ; in 
arguing which case counsel said : " A Jew may sue at this 
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 Court. " 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 Pi-actical Begister (1719), vol. I, p. 4. 

' I Lord Raymond, p. 382. ' i Salk., f. 46. 


question. After citing the passage from Lord Coke, he says : 
" But this notion, though advanced by so great a man, is, 
I think, contrai-y 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 in-eligion 
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 his creatures of the same species 
as ourselves. We are commanded by our Saviour to do 
good unto all men, and not only unto those who are of the 
household of faith ^." 

This is a good illustration of the way in which the common 
law of England has been altered and developed so as to meet 
the needs of the times. When fairly considered, Sir Richard 
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 plaintifi"s servant and taking away his 
dog ("quum servum suum verberavit et unum canem (vocat 
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 dictum, 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 w^as raised in the courts at the 
end of Charles II's and in William Ill's reign, it was 

1 Willes, p. 54a. 


possible to disregard the opinions of those eminent judges, 
and to pronounce a decision in accordance with the views 
of the more enlightened portion of the country at the end 
of the seventeenth century ^. 

The capacity of Jews to hold land or other real property 
in England was also for a long time a question of serious 
doubt among lawyers. If all Jews, whether born within 
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 foreigners, and it was not till their 
children born here had grown up tbat 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 Robei*t 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 agi-eed that a subject of his Majesty born 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 Richard 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," a Dodson, p. 344. 


England or a free denizen, being a Jew, may purchase lands^. 
However, shortly afterwards, the pre-expulsion legislation 
against the Jews was unearthed and relied on in support 
of the alleged disability. There were two statutes dealing 
with the matter. In 137 1 a statute or ordinance (55 Hen. 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." 

The first of these ordinances does not appear in any of 
the printed editions of the statutes, and was discovered 
by Tovey in an ancient MS. in the Bodleian Library, 
and fii'st printed by him in his Anglia ludaica in the 
year 1738 ; its authenticity is, however, firmly established, 
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 2. 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, &c." pp. 42-6. 
" 3 SwanstoB, p. 508 note, from Mr. Coxe's MS. notes. 
» See Introduction, p. v, and pp. x 19-37. 


and in the same year that unrivalled Master of Real Property, 
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 
concurred 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 opinions 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 
Eomilly 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 III 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 
EUenborough (who died in 181 8) gave a practical proof 
of his concurrence in the belief that Jews might hold 

^ Hansard, 2nd series, vol. XXIV, p. 336, XXV, p. 429. 
" J. Q. if., vol. XIV, pp. 667-9. 


land, by purchasing without hesitation of Mr. Benjamin 
Goldsmid a valuable freehold seat at Eoehampton ^. 

If a Jew born here, or otherwise having acquired the 
rights of a natural bom subject, was capable of holding 
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 abolish 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 Act 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 Komilly'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. 


pre-expulsion period, which it has already been ai-gued 
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 religion, incapable of becoming a clergyman ; 
and therefore 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 2)'>'iviiegiu'ni 
or beneficium clericale, originated in the claim which in 
early times, when Papal supremacy was still recognized, 

' In Mirehouse v. Eennell, which -was decided in the House of Lords in 
1833 befoi-e these old ordinances had been repealed, this was stated to be 
the law by Lord Wynford in 7 Eligh. N. S., 322. 

^ 21 & 22 Vict., cap. 49, sec. 4. 


had been made by the ecclesiastics to exemption from 
temporal jurisdiction, and, when charged with criminal 
offences, to be tried by the ecclesiastical courts in accord- 
ance 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 18 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 defended as 
a relaxation of the extreme severity of the common law 
which punished many offences of a comparatively trivial 


nature with the penalty of death. But it was never ex- 
tended to persons not capable of holy orders ; by no means 
a 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 beneficlum 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. Crravius 
est enim divinam quam temporalem laedere maiestatem ; 
the same law in case of high treason against the king ^." 
Such persons, if they offended, were left to the extreme 
rigour of the common law and to the mercy of the Crown. 
The unfairness of the 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 i-eading, 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 intei-preted, 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 V It should be added that the 
whole system of benefit of clergy was swept away in 1827 
by 7 & 8 Geo. IV, c. 2,8, which also abolished the death 
penalty for all felonies which had formerly been clergyable. 
Sir William 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 1706 incapable 
of the benefit of clergy. Happily for the good name of the 

* II Oo. Eep., p. 29b. 

' Foster's Cioivn Cases, p. 306. The statutes as to women are 21 Jao. I, 
cap. 6 and 3 & 4 W. & M., cap. 9. 


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 granted, 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 real disabilities, whether civil or political, which were 
imposed upon the Jews, arose almost entirely from the form 
of oath or the method of administering it. The political 
disabilities were occasioned by the tests and forms of oaths 
enacted by Parliament ; the civil ones for the most part by 
the custom, almost universal at one time, of administering 
the necessary oath upon the New Testament, a method 
wholly unacceptable to a conscientious Jew. Many civil 
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- 
tio;is granted by Charles and James II. The most irksome 

• Anglia ludaica, p. 385. The passage in Blackstone is vol. IV, pp. 373, 
374, but all the authorities are the other way. See Fost., p. 306 ; a Hale, 
p. 373 ; II Co. Hep., p. 29 b ; and Hawkins, Pleas of the Croicn, 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 under perpetual disability of going into orders ; admitting 
of no dispensation, as blind and maimed persons formerly were, and 
women still are." 


of all these disabilities was the impossibility for a Jew to 
become a freeman of the city of London, and so no Jew 
could exercise any retail trade within the city boundai'ies, 
for, by the by-laws of the corporation of London, retail 
trade 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 Abmham Eathom, 
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 Eathom 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 Eobert Eaymond 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, pai-ticularly 
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 


sworn 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 I'eturn and allow it ^." 

In this respect Jews were in an inferior position to 
Quakers, in whose favour Acts of Parliament had been 
passed, enabling them in all cases where an oath was 
required, except in criminal cases or to save injuries or 
to bear any oflSce or place of profit in the Government, 
to make an affirmation instead of the oath, and who there- 
fore could not be excluded from civil rights upon the 
ground that they refused to take the oath when duly 
tendered in the customary form 2. 

Thus the Jews were unable to become citizens of London, 
and were in consequence by the by-laws of the city 
excluded from all retail trade within its boundaries ; 
wholesale trade was, however, open to them, and from 
the first days of their return several of their number 
had 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 pei-mitted 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. Bosworth (1739), s Strange, pp. 1112-4. 

* The statutes are 7 & 8 Will. Ill, cap. 34 ; 8 Geo. I, cap. 6& 22 Geo. II, 
cap. 46, sec. 36, See Rex and Morrice v. 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. 


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 
motion was unanimously earned in the Court of Common 
Council, " That it be referred to the Committee relative to 
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 
^fiioo 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 whei-e 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 disaUUties by Apsley Pellott, himself a member of the 
Corporation, published in 1829. 

' See «x parte Lyons (1750), Ambler, p. 8g. 

' See Welch's Modem History of the City of London, p. 167. Journal, 105, 
fols. s, 6. 


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. 

In the same way the exclusion of Jews from the various 
professions was due to their inability or unwillingness to 
comply vv'ith 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, a, 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 incumng severe disabilities 
and forfeiting i^5°°j to take the oaths mentioned in the 
first-named Act. Among these was the oath of abjuration 
(affii'ming 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 self-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 

1 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, were 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 & lo Vict., cap. 59, 
sec. r. 



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 II an indemnity Act was passed, 
by which all persons who had neglected to qualify them- 
selves for any office or employment by omitting to take 
the necessary oaths, &c., are indemnified and recapacitated 
provided that they qualified themselves on or before 
November 28, 1738, 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 
could only be obtained through the medium of certain 
persons or societies who, though not bound to do so by 
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 Roman 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, effectuallj- 
excluded them, prior to the Roman Catholic Relief Act of 1791, from all 
participation in the legal profession except the calling of a conveyancer 
which was not expressly mentioned in the statute. 


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 hardl)'^ be considered unreasonable, was the 
taking of certain oaths, including the oath of abjuration. 
In the yeai* 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 Campbellj 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 ! 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 2. 

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. R., 18 Eq. 127 ; and Manisty v. Kenealy (1876), 
24 W. R., gi8 for the legal position and argument of the Inns of Coui-t. 

2 Lives of the Chancellors, vol. V, p. 544 (note). 

F a 


" 1837. Dec. 27. 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. Francis Henry Goldsmid was unanimously called to 
the Bar." 

It remains but to add that the benchers on this occasion 
merely followed the praiseworthy example which had been 
set by the leaders of the lower branch of the profession 
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 ) -, oi. j. • xi. * x-n n j 
J ■, \ Fore Street in the Artillery Ground, 

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, 

* Admissum Begister, no. 19, to. 65 ; Records of Lincdn's Inn, vol. II, p. 127. 
^ Black Books of Lincoln's Inn, Book XXII, pp. 233, 234 ; Records of Lincoln's 
Inn, Black books, vol. IV, p. 185. 


articled as clerk to George Ellis the younger of Deans 
Street, ffetter Lane, an attorney of the Court of King's 

Affidt. of due execution of the Articles sworn 35th 
Jan. 1764 fyled i8th ffeb. 1764. 

On ye 18 July 1769 the said Joseph Abrahams was 
assigned over by Ai'ticles by the said George Ellis to 
Robt. Gill of Angel Court, Throgmorfon Street, Attorney 
in the Common Pleas. 

aycd 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 SoUr. in Chancery. The 
Deputy Clerk of ye petty Bagg informed me Abrahams was 
sworn on the Bible. 

10th 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 

The profession of a tutor or schoolmaster was also 
closed to the Jew in the same way as that of the law, 
for the statutes already enumerated ordaining the taking 
of 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 desciibed after the reign 
of George II by the passage of the annual indemnity 
Acts. Yet from 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 leai*ning 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 
1 Records of the Society of GenUemen Practisers, pp. 120, 121, 288. 


youth in any house or private family as a tutor or school- 
master," shall before admission subscrihe 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 
least as regards teaching in private houses, but were quite 
sufficient to exclude all persons not members of the Church 
of England from taking any part in the instruction of youth 
in the public schools of the country, nor can it be doubted 
that such was the intention of the legislature throughout 
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 fotmdation 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 Eoman Catholic 
Relief 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 provisions of 
23 Eliz., cap. I, sees. 6, 7 and i Jac. I, cap. 4, sec. 9. 
' 19 Geo. Ill, cap. 44. 


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 1 871 (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. 3, 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 Roman Catholic schoolmasters were thus, thotigh given twenty- 
two years later, much more limited than those conferred on Protestant 
Nonconformists. The reason for this was the popular distrust of Roman 
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 
coi-porations (see Stephen's Blackstone, vol. Ill, p. 3). 


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 Eeform 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 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 
yeai's 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 enacting 
that no oath, declai'ation, 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 (2) upon matricu- 


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 member of the Church of England, entitle 
him to become a member of the Senate or qualify him to 
hold any office either in the Univeraity 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 iixespective 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 position was not satisfactory, and a wider toleration 
was demanded. Bills to effect this end were regularly 
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 I'ecommendations of their Select Committee. The 
effect of the Act is that all degrees, together with all rights 
and privileges annexed to them, and all offices 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 iiTCspective of their religious belief. 
The only exceptions are degrees in and professorships of 

' 19 & 20 Vict., cap. 88, sees. 45, 46. 


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 gi'ounds. 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 Church, 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 ^, refers only 
to colleges subsisting at the time of its passage, and 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 
disabilities of the Jews and the means by which these have 
been removed, before passing to the consideration of their 
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 Reg. v. Hertford College, Oxford (1878), L.R. 3, Q.B.D. 693. 


tions are not absent from those which cany 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) Pi'ivate 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. 

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 instniction 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 schools in the legal sense include only those which 
come under the provisions of the Public Schools Act, 1 868, and 
its amending Acts (31 & 32 Vict., c. 1 1 8 ; 32 & 33 Vict., e. 58 ; 
34 & ^S Vict., c. 60 ; 36 & 37 Vict., c. 41 and c. 62), namely, 


Eton, Winchester, Westminster, Charterhouse, Harrow, 
Kugby, and Shrewsbury. The principal Act empowers the 
governiag 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 
headmaster 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 insti'uction 
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 
Schools Act of 1869 and the amending Acts (32 & 33 Vict., 
c. 56 ; 36 & 37 Vict., c. 87 ; and 37 & 38 Vict., c. 87), and 
comprise all 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 (23 & 24 Vict., c. 11), that 


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 will, 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. 

This provision was, however, not considered adequate, 
and the Endowed Schools Act of 1869 was passed on the 
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 weU 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 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. 


but the persons in charge of the boarding houses of the 
school are not willing to allow such exemption, then it 
shall 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 rieligious 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 boai-ders, 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 
to make more stringent provisions upon this subject, because 
the Education Act of 1870 made attendance at these 
schools compulsory for all children 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 Viet., cap. 87, sec. 7. 
" See In re the Endowed Schools Act, 1869, in re Christ's Hospital 
(1890), L.K. 15, A.C. 173, esp. pp. 181-3. 


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 hoars 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 I'eligious worship, or that he shall attend any 
religious observance or any instruction in religious subjects in the school 
or elsewhei'e, 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 
pi-actised 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 see. 76, which, however, is applicable only to non-provided schools. 


enacted by section 14 of the Act of 1870, commonly known 
as the Cowper-Temple clause, that " no religious catechism 
or religious formulary which is distinctive of any particular 
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 particiilar 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 already 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 
instruction shall, as regards its character, be in accordance 
with the provisions (if any) of the trust deed relating 
thereto, and shall be under the control of the managers ^. 
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 

1 Education Act, 1902 (2 Edw. VII, cap. 42), see. 7 (6). 


directions 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. 

Public higher and technical schools are schools either 
provided by or receiving pecuniary assistance from local 
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, 1902, 
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- 

" (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 
1 Education Act, 1902, sec. 7 (i) (a) anl (c). 



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 

The law as to poor-law schools has little interest for the 
Jews, who rightly pride themselves on saving their poorer 
brethren from resorting to the workhouse ; so that there 
are probably no Jewish children in any workhouse schools ; 
should, however, any Jewish children be dependent on the 
union, the guardians would probably avail themselves of 
the provisions of the Poor Law (Certified Schools) Act, 
1 86a, 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 
of youthful offenders, i.e. of persons under the age of 
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 
* 25 & 26 Vict., eap. 43. 


of a youthful oflfender 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 oifender 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 

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 
parents' 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 another 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 necessary to establish a Jewish Industrial 
School at Hayes in Middlesex. 

H. S. Q. Heneiques. 

1 Keformatory Schools Act, 1866 (ag & 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, Dnmsday and Mothersole, p. 715.) 

a a