|Vol. IV, No. 1
Nissan 5606, April 1846
The Appeal Case of the Charleston Congregation
In our last number, we gave the opinion of the Court, delivered in February, at Charleston, in the appeal from Judge Wardlaw’s decision, in the case of Quo Warranto, concerning the members elected by the majority of the Board of Trustees, in the summer of 1843, whose admission to the rights of members was opposed by the friends of the reform established by a part of the Israelites of Charleston. Our space last month prevented us from making any remarks whatever; but the subject is of too much importance to let it pass finally without saying something on the merits of the judge’s opinion, however we may consider him right in the conclusion at which he arrived. We will state in the outset, that we all along feared the result of the particular form in which the trial presented itself; there was little room, if any, to bring the merits of the question before the tribunals, as the whole matter referred not to whether the defendants had suffered any wrong, which they assuredly had done, at the hands of the plaintiffs, but whether they had particular rights under the corporate laws of the congregation. In this manner they could not expect any indulgence from their opponents, to have the case tried upon its merits, as the law of the state, in regard to corporations, not the law of Israel, as regards religious duties and opinions, was to decide with whom the right of the case was. We always thought, and still think, though we are profoundly ignorant of all law matters, that the counsel of the defendants erred in the manner of proceeding; they ought to have taken out what we believe is called a writ of mandamus, to compel the president of the congregation to fulfil his constitutional duty, to call a meeting of the Board upon the requisition of three of the trustees. Why this simple remedy was not applied from the beginning, we are unable to say; for surely there must be a power in the South Carolina courts of justice to compel corporate officers to fulfil the duties demanded of them by the charters and by-laws under which they act; and then the present defendants might have brought forward all the evidence they required, to prove, not alone to the court, but to the world, that they had suffered injustice. But this course was not pursued; the Board, sustained by a minority of the congregation, proceeded to act irrespective of the absence of the president; and hence has resulted the anomaly that a very small minority of all the Israelites in Charleston, nay, a minority of the former members of the congregation itself, is left in possession of all the property of the corporation, with a Sure prospect of retaining it, unless the present party in power should differ upon some future progress in the reform, which we fear will proceed to that extent, unless checked by those who will not abandon all ancestral customs, till a complete separation be produced between the truly orthodox and those anxious for a complete revolution in the Jewish system.
We could say a great deal on the subject; we are, we think, familiar with the downward steps already taken; but we have determined not to be drawn into any discussion, whilst our strictures in No. 5, of our first volume, remain unanswered. We can only contend where openness is prevailing; but with secret measures, introduced piecemeal and at any time when an opportunity offers, whilst much more remains yet concealed from view, we can have no concern, because we cannot know where to attack, and what to warn against. Still, whilst on the subject, we cannot avoid cautioning those of our readers who are in favour of the new order of things, not to yield too implicitly to counsels which are wafted over the sea, from the almost infidel German reform Rabbins; they would surely follow unawares the road which must withdraw them farther and farther from the community of Israel, until they establish themselves into a separate sect, differing both in doctrine and conduct from the vast majority of Hebrews all over the world; and we assure them, that though some reforms may be justly demanded, and also acceded to by the worthy chiefs of our people, such measures as they have in progress can never obtain the sanction of the majority of Israel.
But we are not going into the merits of reform and anti-reform; we have to do with the judge’s opinion as published, and to it we mean to take some exceptions. That Judge Wardlaw would hear no evidence respecting the legality of the reform, may be all right enough; in fact as said already, we think him perfectly justified, as the law of the state was to be the arbiter in the case; but we cannot see the propriety of Judge Butler travelling so far out of the road to support the decision of the inferior court. If there was no right to hear such testimony as the defendants meant to offer, there was no necessity on the other hand to discuss the merits of the case. The judge might have simply stated, that the subject matter was not the laws of the Jews, but the laws of corporations, as existing in South Carolina, as afterwards established by him, though dissented from by two out of the six members of the Court of Appeals. But he needs must read us a sort of lecture on the nature of the Jewish worship, of which he evidently had not sufficient knowledge to form a correct judgment. We will pass over the exordium, as contained in pp. 616, 7, and come at once to his exposition of the nature of laws in general, where he asserts “that a granite promontory in the deep may stand firm and unchanged amidst the waves and storms that beat upon it, but that human institutions cannot withstand the agitations of free, active, and progressive opinion;” and afterwards, “for all laws, however wise, cannot be subjected to Procrustean limitations. Cessante ratione cessat lex is a profound and philosophical principle of the law.” Again: “Those who now, in the case before us, insist with most earnestness on a severe observance of ancient rites and forms, would hardly recognise or understand the same as they were practised by their remote ancestors who founded the Synagogue. The Minhag Sephardim was a ritual of Spanish origin, and although it may yet obtain in different countries, yet how differently is it observed. If two Jewish congregations, one from Poland, and the other from Spain, were to be brought together, whilst professing to be governed by the same rituals, they would probably find themselves unable to understand each other in their observance of them.”
Truly, if the judge were not better learned in the laws of his state, than versed in Jewish customs and history, we should not value his opinion greatly. Does the judge know that it is precisely the granite promontory, or something more durable yet, which our religion has proved itself amidst the waves and storms of centuries? Has not our system been assailed by all the weapons which mankind could forge against it? and has it yielded? On the contrary, it has survived the weapons, nay, the very nations which wielded them, and it exhibits to this day the same beautiful front which it did at its first institution. There may have been a difference in the exterior arrangement, in that part which most excites the notice of the careless observer; but the structure itself is unchanged, because from its nature unchangeable.
When, therefore, a judge is called upon to decide respecting a question of detail concerning our people and their customs, it is extremely dangerous, as regards the cause of truth, to decide on it in so careless a manner as Judge Butler has done, because “human institutions cannot withstand the agitations of free, active, and progressive opinion.” For, whilst in sciences and the elegant arts which embellish life, there is a constant progression, because they are all founded on human invention, the moral sciences, being the products of a direct revelation, are necessarily fixed and stationary; and hence opinions founded on the same authority, however they may be modified by the peculiar position in which those who profess them may be placed, are in the main uniformly the same and stationary, and well able to withstand, as of right they should, the agitations of free progression. It is a fearful maxim, this, which the judge wishes to establish. All morals, as far as practised and sanctioned by human society, are human institutions to as great an extent, at least, as the opinions and practices of the Jews, who confessedly base all their opinions and duties on Scripture; and if the latter, then, are properly subject to be affected by the progress of events as a matter of right and necessity, if change is to apply to them as much as to the fashion and colour of the garments we wear, we do not see why what are called morals are not also to be changed by the progress of events. In good truth, there have been times when certain acts were tolerated, which are now considered, and justly so, as utter abominations; but if mere opinion is the standard which is to govern us, the immoralities of an immoral age are no cause for animadversion, seeing that the standard of the age sanctions them. It requires no argument to prove the fallacy of such reasoning, and hence the foundation of the ideas of Judge Butler is equally fallacious; since Jews, to be Jews at all, must claim the same immovable standard for their peculiar faith, which they claim for their moral system. There never has been a time when the reason for any of our laws has been set aside, we speak of laws properly so called; and the various customs which have obtained amongst the Jews are clearly such as must be compatible with the fundamental principles on which the religion is founded. We will admit at once, that there are variations in these customs, and that, as the peculiarities were in their origin of no particular moment, they being matter of indifference whether they be of this or that fashion, people were justly left at liberty to choose the method of doing what their religion asked of them, and to fix on the manner which suited them best. These customs, however, had their origin no doubt in the fact of the insulation produced by a state of dispersion, where one part of Israel was absolutely unacquainted with the state of affairs of the other, and in the additional circumstance, that this state of insulation endured for several centuries. Hostile nations intervened between those of us who lived in Spain and Poland, and those who lived in Germany and the Persian empire; individuals, under favourable circumstances, visited at distant intervals the different divisions, but the masses remained apart for long and weary years. The report doubtless of what was done in one country reached the other; but a full knowledge of such things could hardly have been expected at a period when all facts had to be communicated by the slow process of transcribing, the press not being yet known. It is therefore no wonder that the Jews of Spain formed a liturgy of their own, retaining, however, all the prayers and scriptural selections which the ancient books, the Mishna and the Talmud, contained; that their poets should compose hymns and exhortations for their own immediate countrymen, and that these pieces should be adopted by their grateful neighbours, glad only to have these additional means of offering up their devotion to heaven; equally natural was it that the German and Polish Jews should do the same, and that the different Hazanim (the public ministers of the congregation, or readers) should be degrees compose and introduce a number of tunes, well fitted to the different hymns and poetical prayers, and peculiar chaunts suited to their various customs. There is in such a process nothing opposed to the laws, however the manner might differ; and thus originated, we have no doubt, although we have no historical data at hand to refer to, the different forms of the Spanish and Portuguese (Minhag Sephardim), and the German and Polish (Minhag Ashkenaz). Besides these there were some minor variations, as the Italian, Carpentras, Avignon, Polish proper, and other local variations; but there was no sect formed by all this, because Germans, Spanish, Italians, Polish, and Portuguese, all received and embodied the same doctrines and opinions in their prayers.