A Jew may be sworn on the tament if he does Jew myself upon an indictment of perjury." Mr. SolicitorGeneral insisted, "That the indictment would not be wrong against a Jew if it was tacto libro legis Mosaicae1.” Half a century later it became necessary to hold that a Jew who professed belief in the doctrines of Christianity New Tes might, although never formally admitted to Christianity, be sworn in the common form on the New Testament. not object. 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 2. The Oaths As questions of this kind occasionally arose3 the Act 11 Atk., p. 35. For the report of the case see I Atk., pp. 21-30; I Wilson, p. 84, and Willes, pp. 538-54. Rex 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, I Peake, p. 25. 3 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 (1 and 2 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." cause lists Jewish be taken Sabbath or From the earliest times after the resettlement the judges Arrangeof the courts of law admitted Jews as competent witnesses ment of and allowed them to take the oath according to their own so that usages. They also showed, still further, a spirit of tolera-ca tion by no means universal in the seventeenth century, for should not they in some instances actually arranged their cause lists on the in such a way as to allow cases in which it was known Jewish Jews would be material witnesses to be heard on days other holidays. than the Jewish Sabbath; for example, in the year 1677 the plaintiff in the case of Barker v. Warren had leave given by the Court to alter the venue from London to Middlesex because all the sittings in London were on a Saturday and his witness was a Jew and would not appear that day1. 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. Parl. Deb., and series, vol. II, p. 912). 1 a Mod. Rep., p. 271. cused from dishonour on a Jewish holiday. granted, and in the year 1900 Mr. Justice Ridley postponed the sitting of the Long Vacation Court, which would have taken place on the Day of Atonement, to the following day, at the request of Mr. D. L. Alexander, Q.C., the present President of the Board of Deputies, who at that time was the leading counsel practising in the Vacation Court. This example was still more recently followed by Mr. Justice Bigham, who sat late and so arranged his list at the Liverpool Winter Assizes of 1904 that the evidence in the Jewish libel case of Fineberg v. the Chief Rabbi and the members of the Liverpool Schechita Board should be concluded before the commencement of the Jewish Sabbath. Jewish In the same generous spirit, if we may make a short religious digression, the courts in enforcing the law merchant, scruples recognized which is incorporated in the common law, have had by the law merchant, regard to Jewish religious scruples and have held the A Jew ex- necessity of observing the Jewish Sabbath or other holy giving day set apart by the Jews for religious purposes a special notice of circumstance excusing a Jew in the habit of observing it of a bill of from performing on that day any act of business which exchange 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 sufficient 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 accustomed to keep his place of business closed on those days. The point was decided as long ago as 1811, in the case of Lindo v. Unsworth. There the bill sued on had been dishonoured 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 religion a Jew, his counting-house was shut and there was no way to communicate the notice to him until after the post had been dispatched. On the 9th he sent off a letter by the post giving notice of the dishonour of the bill, addressed to the defendant at Lancaster. It was contended that the notice was bad, but Lord Ellenborough ruled as follows:"I think the plaintiff was excused from giving notice on the 8th upon the score of his religion. The law required him to give notice with reasonable diligence; and I think he did so, if he sent off the letter as soon as he could after the termination of the festival, during which he was absolutely forbid to attend to secular affairs. The law merchant respects the religion of different people. For this reason we are not obliged to give notice of the dishonour of a bill on our Sunday. But it was equally impossible for the defendant to give this notice on the 8th of October. The letter sent off on the 9th is therefore sufficient," and there was a verdict for the plaintiff1. of Jews to Returning from this digression, we have seen that the Capacity capacity of a Jew to be a witness was decided soon after the bring resettlement in a manner contrary to the view held by Lord actions. Coke. That great jurist had also expressly laid down that a Jew was incapable of bringing an action, and this point also had soon to be decided. The real difficulty of admitting a Jew's evidence was the mode of administering the oath, but the alleged incapacity had been based, not upon the form of the oath, but upon the argument that the testimony of infidels in whatever way they were sworn could not be accepted. 1 Lindo v. Unsworth (1811), 2 Com., p. 602. See also Tassel v. Lewis (1695), I Lord Raymond, p. 743, and the Bills of Exchange Act, 1882, sec. 49 (12) and sec. 92. Coke's theory that in 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 fidels are being remota potentia, a remote possibility), for between perpetual enemies. 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, 2 Cor. vi. 15 'Quae autem conventio Christi ad Belial, aut quae pars fideli cum infideli?' and the law saith, Iudaeo Christianum nullum serviat mancipium, nefas enim est quem Christus redemit blasphemum Christi in servitutis vinculis detinere.' Register 287 '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 all1." 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 judgment 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 2." Nevertheless a statement of law made by so high an authority was generally accepted, and we find the very Rep. VII. 178, 17b. • Historical Discourse on the Uniformity of the Government of England, part II, cap. 8, edition of 1647, p. 78. |