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בס"ד

The Appeal Case of the Charleston Congregation.

(Continued from p. 106.)

Suppose there were an insurance company instituted one hundred years ago under the laws of the then colony of South Carolina, the members of which at that time had made an agreement that they should take only such risks as arose from a loss by fire at a premium of two per cent., and that this agreement should stand firm and unaltered, until the same be abrogated by three-fourths of all the corporators, duly summoned together for that special purpose; would it then be lawful at the present time for a meeting of the stockholders to resolve to take marine risks likewise, if a minority of more than one-fourth of all the members were to vote in the negative? or could the rate of insurance be lowered to one per cent. under similar circumstances? and this at an ordinary meeting called together to transact the usual business of the company? Suppose such a case were brought before Judge Butler, would he then rule, that so contracted a view of mercantile affairs as a charge of two per cent. on insurance was so unreasonable as not to be borne by a large number of the stockholders, and that they need not regard the laws enacted by their ancestors of a hundred years’ standing? We imagine he would decide, that the remedy pointed out in the articles of agreement had not been applied, and that there was but one method of reaching the desired point, that is, to induce the constitutional minority to abate of their opposition; and that, until this be done, the premium and manner of insurance must remain as they were originally agreed upon.

Now the Jews in Charleston were, in the summer of 1840, in precisely a similar position, only that their charter is derived from the State of South Carolina. It is admitted, that long before then, the offerings formerly made in Spanish had been changed to the Hebrew, because the original Spanish and Portuguese emigrants were dead, and those who remained understood not the languages of the Peninsula. So also had the commentaries in Spanish to certain Haphtoroth, which were formerly recited alternately verse and verse with the Hebrew, been left out. This was done, however, by general consent; because there was no use in placing the Spanish upon the same level with the Hebrew, it being in itself nothing more than the English or any other non-Israelitish tongue; sanctity it never had; it was employed because it was the vernacular of the majority; and, hence, when this was no longer the case, it was replaced by the Hebrew, or the parts said therein were left out altogether. It is, by the by, singular that the Judge should have been so well­informed of this little matter, when he listened to no evidence on the merits of the case; the pleadings of the bar surely ought not to be taken as positive proof, and induce the court to allow it to give weight to their opinion. To say, however, that there was any analogy between the omission of the Spanish offerings and commentaries, because the generation had been American, and the introduction of radical changes which are not in accordance with the Minhag Sephardim as practised over all the countries where it prevails, and this when a large minority protests earnestly against such proceeding, is absolutely preposterous. Let it be recollected that when the meeting, we believe of July, 1840, which established the organ reform was convoked, the president, the late Nathan Hart, declared that the subject was a proposed amendment to the Constitution, which required a vote of three­fourths to legalize it. The majority, say of 50 to 40, resolved, that it was not a constitutional question, and thereupon it was resolved by a vote of 45 to 40 to introduce the organ, and thus the door was opened to several other changes, which, had they been proposed on that unfortunate occasion, could not have united twenty votes in their favour. Now we ask the honourable Judge and his colleagues (admitting that this has no bearing upon the question before the court, beyond which we repeat they had no right to look) whether the resolve of a majority less than three-fourths or two-thirds (if this be the proper one) could first legally determine that the question was not an alteration of the Constitution, if it be actually such, as we contend, and then enact it by a yet smaller vote, against the will of an almost equal division? Would Judge Butler have sustained such an assumption of power had this question been brought before him in its naked abstract proposition? We are certain he would have sustained Mr. Hart in his opinion, and decided that the vote as taken was inoperative, because the majority was not such a one as the laws of the corporation had contemplated. But it may be said, that the judges might have decided that the introduction of an organ was no change upon the Minhag Sephardim. Still, before they could have come to that decision, they would have been compelled to listen to evidence, something more to the point than the mere ingenious pleadings of learned lawyers, who understand mercantile and criminal matters better than religious questions. And there would have been no great difficulty either in deciding this point by a tribunal composed entirely of Christians. For we believe to be correct in saying, that usage is every thing in legal matters; we have in our day read a good many newspaper reports of legal decisions; and though we confess that we do not always comprehend the hard terms and the peculiar technical phraseology employed, still we have learned this much, that all agreements entered into between individuals and all transactions under them, have to be explained according to the meaning which is usually attached to the words employed by those familiar with them; and hence in the present case, the manner of worship in other congregations, professing the Minhag Sephardim, would have been the only evidence required to prove that the introduction of instrumental accompaniment of the hymns on the Sabbath and festivals was against the usages of these bodies, and hence an unauthorized deviation attempted on the part of the accidental majority at the above mentioned meeting; since the founders of the congregation could never have contemplated its introduction, and it must be considered as contravening their articles of agreement, to wit, their Constitution. The reasoning that the manner of employing music in worship is of no importance, is surely begging the question; it is not for the court any more than for individuals to decide what is reasonable or unreasonable in the premises, but what is or what is not according to the original agreement under which the parties act. We always thought that the private opinions of judges had nothing to do with their judgment; they are appointed to decide according to law and testimony: thence we contend, that be the matter great or small, wise or foolish in their estimation, they are bound to divest themselves of all such preconceived ideas, and decide between man and man as they may learn to be the case upon due inquiry and upon mature reflection.

We think that we have amply proved, that the innovation of the introduction of the organ was a violation of the constitution, or the compact rather, under which the Israelites of Charleston had originally formed themselves into a congregation with the ritual of the Sephardim, which, reasonable or unreasonable, had been adopted after careful and due deliberation as the basis of their public worship. There is no record, that by any competent resolve of the corporators any thing had ever been done to set aside this important step; at least, if any such event has occurred, it is unknown to the writer of this; and hence, unless there had been some direct and striking proof to this effect exhibited to the honourable judges of the court of appeals, they had no right to travel out of the record and to tell us ex cathedra how Jews might reform their worship upon grounds of mere reason, which, however potent in determining the bearing of any proposition, cannot gainsay things legally enacted, whilst the execution of them is palpably within the range of possibility. There was not exhibited, as far as we have learned, any evidence on the first trial before Judge Wardlaw, nor after that before the full bench of judges, to prove that the corporation was unable to proceed with its rights and reach the object of its institution, by the absence of instrumental music; nor were the acts of the minority, legally empowered to control the hasty actions of a bare majority, (not lawfully authorized to upset the mutual articles of agreement,) of that nature as to deprive the others of all their corporate privileges its members, (yehidim) or worshippers in the Synagogue Beth Elohim, just then rebuilt by the united contributions of all parties. It must not be forgotten, that when the Synagogue had been destroyed by fire, and the proposal of its rebuilding was laid before the people, the contributions were handed in solely with the understanding that the worship was to be continued as in the former edifice; there was no talk of an organ, of no radical or even partial reform; no mention made of a remodelling of the articles of the Jewish faith as usually received among us; no thought even of a triennial cycle for the reading of the law; no allusion to the abolition of the second day of the holy days; no whisper about the discharge of the Shochet; no insinuation that the worship should by degrees be so constituted that the congregation should thereby be prevented from joining together in praise to the Most High. We are so much used to the freedom of worship, oddly as it may sound to non-Israelites, that but few, indeed, could have been found to sanction the latter innovation especially, trifling as it may appear in comparison with the others just enumerated. The very person who is now the President of the Congregation with whom the writer of this conversed when in Charleston, when it was urged by him, that the introduction of the organ would necessarily lead to the shutting up the mouths of the people and require an abridgment of the service, affirmed solemnly, that that was not contemplated, and that he would never consent to such unwarranted changes,—pretty much in the style of the ancient Syrian: “Is thy servant a dog that he should do such a thing?” Well, time has proved the fear expressed to have been verified by the fact, and the very person who was then a member of the board, but not the president, has since then been elevated to that post, and has, by his very action, caused the suit to be instituted, which has resulted in the division of the Israelites of Charleston into two dissimilar bodies; we use the word dissimilar advisedly; for, however desirable the union of the Jews living in one town may be, the march of change has been so rapid on the part of the reformer, that the others can in no wise make a compromise with them upon a middle course. And in passing, we will also remark, that hasty reforms and violent changes, such as we have witnessed in Charleston and elsewhere, place the real, because cautious friends of progress, in an unnatural light; they have to oppose reform which is destructive, and hence they are falsely represented as filling behind the light of the age. They understand their position just as well as those who only see folly in Jewish customs, and they are perfectly willing, and we among them for one, to abide the issue, which will at length prove who were the true friends of light, of progress, of truth, of religion, and who were those who, in their eagerness to assimilate Judaism to gentile worship, madly strove to pull down the pillars of our faith and convert the sacred temple to one shapeless mass of ruins. Yes, had the opponents of the organ only taken a bold stand at once, and brought the matter before the proper tribunals, and offered thereupon such evidence as had a bearing upon the question, our friends could have proved that they were united under such an agreement as prohibited its introduction; that under the persuasion that the worship was to be continued as before had they contributed their means to renew the edifice destroyed by fire; that they, the actual majority, embracing the greater portion of those who actually voted among the forty-five for the change, had never contemplated it when the rebuilding was first spoken of; and finally, that the question had been carried in contravention, (admitting that the property of the corporation could be diverted to uses other than the intention of its original grantors, even with the vote of three-fourths of the members) of the compact by the terms of which alone the meeting had any rights in the premises. Would Judge Butler, with his fine-spun philosophical views, have told the complainants “that they could hardly recognise or understand the worship as practised by their remote ancestors who founded the Synagogue?” We imagine, that as an honest man and an upright judge, he would have spoken to the reformers unequivocally, perhaps after this fashion: “The court earnestly sympathizes with the defendants in their endeavour to remove the unsightliness of the Jewish customs, which, having their origin in dark antiquity, are no longer necessary, so far as the Christian public understands the subject; but from the nature of the question, and the testimony brought before it, the court is compelled to give judgment for the plaintiffs, and the defendants are thereby prohibited from erecting the organ and abridging the worship to prevent the service from becoming unduly and tediously long, because the constitution and by-laws of the congregation can be carried out in their true signification and object, although the contemplated reforms be not permitted.”