VIII.

THE CIVIL RIGHTS OF ENGLISH JEWS.

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 profession 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.

tion be

This subject may be conveniently divided here into two Distineheads, civil and political rights; for though it is true tween that these two adjectives are really synonymous, the one civil and political being a Latin word and the other its Greek equivalent, rights. 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 protect from wrong both person and property, and political rights the power to take part in the legislation and government 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 them.

We have seen that before the expulsion of the Jews in

N

the land

The law of 1290 there had been in force several statutes exclusively applied to relating to them, but that these statutes could not affect the Jews 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

on their return; but the abolition of villenage

exempted Vogue before their banishment, in so far at least as it was them from not a necessary consequence of the status of villenage the opera- which no longer existed, could be and, when substantial ancient justice would thereby be done, actually was revived by the

tion of the

statutes

concern

ing the Judaei.

Right of a Jew to be a witness

of law.

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 chapter, 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 Coke1, writing anterior to the resettlement, lays down that an infidel cannot be a witness, and there is little in a Court 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, especially '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 hard 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 Jury1." 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,

Witnesses not sworn on the

tament

may be

guilty of perjury.

in the case of Gomez Serra v. Munez, 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 1." At length, in Michaelmas Term, 1744, 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 Exchequer, pp. 167 and 174, and from Selden, vol. III, 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. New Tes- The objection that this could not be done was taken by counsel for the defendants, who desired to exclude the evidence of persons of the Gentoo religion taken on commission in India on the ground that the words tactis sacris evangeliis were necessary words in an indictment for perjury. Upon this objection Lord Chief Baron Parker said, "This is not true in fact; but supposing it was, yet this is not the only case where witnesses cannot be prose1 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 tactis sacris evangeliis are necessary words, for several old precedents are that the party was iuratus generally, or debito more iuratus1." And Chief 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 Evangelia or tactis sacrosanctis Dei Evangeliis 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 Simboliography; but it is only there said supra sacramentum suum 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 2"

It is plain from the report that several prosecutions had been instituted against Jews for perjury because precedents had 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 tried a 1 1 Atk., p. 43. • Willes, pp. 553, 554.