Esther Delisle, The Traitor and the Jew, (Toronto: Robert Davies, 1993). 118 Pierre Anctil, âInterlude of Hostility: Judeo-âChristian Relations in Quebec in.
“Our judges in Quebec will give us fair play”: Jews, Law, and Blood Libel In Canada, with some remarks on blood libel in the United States David Fraser1 1. Introduction: Saving the Juridical Structures of Argument in Blood Libel? In her important study, Hannah R. Johnson urges her readers to place the ethical at the methodological, substantive, and interpretive heart of the study of the blood libel accusation.2 A key obstacle to any attempt to understand the fully contextual background and normative implications of this “limit event” appears to be the persistence of the “juridical” in all discursive emplotments of the blood libel. Johnson persuasively sets out the historical narrative context of the accusation, beginning (at least) with the story of William of Norwich, as articulated by Thomas of Monmouth.3 For her, a persistent theme is ... a discourse that insists on adjudicating claims of guilt and innocence, crime and libel.4 The danger from the ethical perspective is a familiar one. The juridical process and its narrative components involve all participants in a search for “what really happened”. Either the claim that Jews kill Christian children as part of some secret religious ritual is true and they are therefore “guilty”, or the assertion of Jewish perfidy is false, a libel. But the most important ethical consequence of such a juridical discursive rendering of idea is that 1 School of Law, University of Nottingham. This is a draft of a paper presented at “A Thousand Years of Infamy: The History of Blood Libel”, Cardozo Law School, November 2103. In this, as in all matters relating to the study of Québec and Canadian Jewry, I am indebted to the kindness and invaluable assistance of Janice Rosen and Hélène Lavallée at the CJC Archives. 2 Blood Libel: The Ritual Murder Accusation at the Limit of Jewish History, (Ann Arbor: University of Michigan Press, 2012), 3, 5-‐18 3 For the ongoing interest in the “case”, see e.g., Gillian Bennett, “Towards a Revaluation of the Legend of “Saint” William of Norwich and its Place in the Blood Libel Legend”, 116 Folklore 119-‐39, (2005); John M. McCulloh, “Jewish Ritual Murder: William of Norwich, Thomas of Monmouth, and the Early Dissemination of the Myth”, 72 Speculum 698-‐740, (1997) 4 Johnson, op. cit., 32
Using the language of libel to counter the language of accusation re-‐ confirms the juridical discourse itself. Those who lodged libel cases hoped to establish Jewish innocence once and for all, just as their opponents hoped for some final proof of guilt.5 This is of course a familiar position, one that resonates, as Johnson indicates, with debates about the possibility of engaging with Holocaust Denial in some way which does not reductively present this modern embodiment of Jew hatred as one side of a valid historical debate.6 For Johnson, the inevitability of complicity with antisemitic discourse appears to be inherent in any juridical engagement with the blood libel.7 More usefully for lawyers, perhaps, this position about the ethical shortcomings of the juridical in confronting the ritual murder accusation is one which resonates most strongly with Richard Weisberg’s careful analysis of the dangers of engaging with anti-‐Jewish legal norms by way of technical legal arguments based on the facts of a particular case. Weisberg uses Vichy’s anti-‐Jewish laws as the concrete historical and jurisprudential example, for his analysis and critique of this “hermeneutic of acceptance”. 8 This argument reflects many of the concerns and dilemmas at the heart of Johnson’s ethical and methodological (if they can be momentarily separated) project. Too much is lost, both normatively and historically, because of the inherent limitative framing which occurs as a necessary result of the juridification of the ritual murder question. Weisberg’s apprehensions are equally normative and ethical, but his focus lies elsewhere, and his analytical frame is perhaps more fruitful for my focus. His denunciation of the “hermeneutic of acceptance” is counterbalanced by his proposition that a constitutional jugular argument that, in the context of Vichy’s anti-‐Jewish legislation, would have attacked the normative structure of the laws themselves as contrary to the basic republican constitutional principle of equality, was 5 Id., 48 6 Id., 50-‐53 7 Id., 46 and 52 8 Vichy Law and the Holocaust in France, (New York: New York University Press, 1996)
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available to jurists at the time. Johnson, the ethically aware historian, sees the juridical turn as … a kind of cul-‐de-‐sac of historical thought, where evidence is ambiguous, and interests often dominate interpretation. We must be aware of what the accusation stands for, and how it comes to function as a political tool in different environments, if we are to understand the entanglement of these issues.9 For her, the juridical frame always and inevitably appears to be one that “reifies ideological divisions” and serves as a deeply encoded articulation of the social and political dynamics relating to the position of “Jews” in western cultures.10 Weisberg, on the other hand, explores the broader and deeper discursive options which might occur within the juridical. Given the professional affiliations of the two authors, one a historian, the other a lawyer, the difference in perspective and in proposed hermeneutic strategies, is hardly surprising. Nor will it come as a shock that in what follows I prefer to focus on the “juridical” manifestations of the blood libel in the Canadian (and American) contexts from a lawyer’s perspective. I do so for inter-‐related reasons. As Johnson herself establishes, the juridical form is indeed the frame that dominated pre-‐World War Two, pre-‐ Holocaust, presentations and representations of the ritual murder accusation. The four examples with which I deal in the following sections all fall, more or less, under this dominant paradigm. But more fundamentally, I believe it is possible, with the proper degree of hermeneutic ethical awareness, as both Johnson and Weisberg signal, to construct an understanding, or a set of understandings, which seek to get beyond deeply encoded and reified ideologies of the juridical in the case of ritual murder accusations. I am not suggesting that these do not form part of legal and legalistic renderings of historical ritual murder accusations or blood libel litigations, but I would argue that what emerges from the four cases studied below is that other interstitial spaces for 9 Blood Libel, op. cit., 56 10 Ibid., 24
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interpretive maneuvers were and are always available in socio-‐legal accounts of the blood libel. The ethical, in the blood libel context particularly, as Johnson points out, always involves narratives of power and resistance. What is striking in the three Canadian examples, and for somewhat different reasons, the American case, that form the core of my presentation, is the degree of agency within the Jewish communities involved. In these cases, Canadian and American Jews, like their counterparts elsewhere “fought back against their tormentors and exercised power in ways that are little appreciated.”11 In particular, Canadian Jews turned to law as plaintiffs in order to articulate their political opposition to increasingly virulent and politically powerful articulations of antisemitism embodied in the blood libel accusation. In the broad political, sociological, and legal context of Canadian history in which, as Risk and Vipond have pointed out, the invocation of the juridical in the form of litigation was the exception, the Canadian blood libel cases, in which members of the Jewish community actively pursued perpetrators of the ritual murder accusation, are noteworthy.12 That Canadian Jews turned to law to combat these manifestations of antisemitism is, I believe, important. The traditional narrow discourses of the true/false dichotomy, as highlighted by Johnson, naturally always informed the litigation, with all of the ethical limitations and narrative limits inherent in the juridical move. But the study of Jewish agency in these cases also highlights that Jewish communities engaged with the dyad in order to transcend it. By invoking a set of rhetorical devices and tropes grounded in their understandings of British justice, Canadian Jews directly asserted claims to their status as fully equal British citizens. Likewise, the Jews of Massena, New York, in the American blood libel case, based their actions not just in the revulsion they felt at the reemergence of a medieval “libel”, but in their basic understandings of the American constitutional and 11 Albert S. Lindemann, The Jew Accused: Three Anti-‐Semitic Affairs Dreyfus, Beilis, Frank, 1894-‐1915, (Cambridge and New York: Cambridge University Press, 1991), 3 12 Richard Risk and Robert C. Vipond, ‘Rights Talk in Canada in the Late Nineteenth Century: “The Good Sense and Right Feeling of the People”’, 14 LHR 1-‐32, (1996)
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political promise of equality. In other words, their arguments against the blood libel were informed by jugular constitutional principles and foundational, constitutive norms of citizenship. I accept Johnson’s concern over the dangers of the juridical turn as an ethical matter, and I am in agreement with Weisberg’s warning about the inherent ethical and normative failure of the “hermeneutic of acceptance”. But I also believe, along lines similar to those asserted by Weisberg in his idea of the jugular constitutional position, that the juridical is not always, or only and inherently, a normative, ethical, or contextual cul-‐de sac. A careful socio-‐legal reading of the Canadian and American blood libel cases, the beginning of which I offer here, can and does open up historical and sociological investigations into the contexts in which the accusations manifested themselves and into the dynamics into which the Jewish communities entered to counter them. Legal discourse quite clearly has its rules and its limits, the result of which can often be the decontextualization of complex historical situations, and the narrowing of ethical focus to simplistic questions of guilt or innocence, libel or truth. I believe, however, that the four cases outlined in the following sections of this paper, demonstrate again that the “juridical” is not, or need not be an ethical, positivist dead end. When a proper place is made for historical and hermeneutic context, we might begin to recognize that in some instances the juridical can and did function to remove “ambiguity” from the blood libel, “ambiguity” which was and is little more than hatred disguised as scholarly historical inquiry. A nuanced, historically, and ethically aware socio-‐legal approach to the juridical in the four blood libel cases examined here aims precisely at uncovering the “interests” which dominated interpretation, to uncover and articulate the reified ideologies lurking in legal practice. Indeed, in what follows, I work on the assumption that interests always dominate interpretation in juridical practice. The four juridical instances of the blood libel in Canada and the United States simply serve to demonstrate the ways in which the legal can only ever be understood politically and socially.
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Again, I am a lawyer and I offer here a reading, an interpretation, no doubt dominated by interest, of four instances in which the legal hermeneutic, the dominant narrative structure of the blood libel, before the ethical and interpretive shadow of the other “limit event”, the Shoah, played itself out in different historical and geographical contexts. In each case, I seek to underscore the ways in which Jewish communities sought to express a degree of autonomy, or at least resistance, in relation to politically and socially dominant, majority discourses of antisemitism. They always did so by asserting not just arguments framed by the restricted hermeneutic and tropes of truth/libel or guilt/innocence, but more significantly by invoking constitutional and constitutive norms of citizenship and equality. There was always something more than ritual murder at stake in these cases, and the participants were acutely aware of the values that were being contested and invoked. Blood libel in these instances was always, as Johnson demonstrates in other contexts, about the complexities of constituting relationships between Christians and Jews, between the majority population and minority groups claiming representative status as citizens. The juridical is portrayed in what follows not as an inherently limited forum in which broader context or overarching ethical concerns are absent. Instead, law itself constituted a set of discursive practices subjected to external and internal hermeneutic limits, beyond the blood libel. The “limit event” of the blood libel legend found an articulation in the legal sphere in each of the four instances from Canada and the United States. That articulation or those articulations were always, inevitably political, always ethical, and always normative. All parties to these juridical instances were conscious of these non-‐juridical aspects of the juridical instances of the blood libel. Indeed, I believe that the four cases evoked here demonstrate that the encoded conversation about the place of Jews in the cultures of Quebec, Canada, and the United States was in fact not deeply encoded at all. “Jugular” constitutional invocations of equality and citizenship were at the core of these cases. In each, principled discourses about citizenship and equality competed with exclusionary narratives of juridical violence, deeply embedded in some majority understandings of the political and social norms of citizenship. “Truth”
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and “Guilt”, the traditional goals of the juridified instances of the blood libel so carefully and thoughtfully explored by Johnson, were, as I hope to demonstrate, secondary, or at least only partial, elements for all the parties in each of these cases. The parties themselves always put the limited and limiting frame of technical legal discourse aside as they invoked the trumps of competing understandings of identity, belonging, and citizenship. 2. The Plamondon Case i) Plamondon and the Jews of Quebec The 1901 Canadian Census reveals that almost 55, 000 French Canadian Roman Catholics, constituting over 84% of the total population, lived in Quebec City.13 At the same time, there were between 265 and 275 Jews living in the provincial capital.14 Most lived and worked in the contiguous wards, or parishes, of Jacques Cartier and St. Roch. The large majority of Quebec City’s Jews were recent arrivals, having come to Canada in the first large wave of European migration in the 1890s.15 They worked as peddlers, laborers, and shop assistants, although a few had managed to establish themselves as somewhat more prosperous shopkeepers. The Jewish population was concentrated in the Lower Town of Quebec City, in neighborhoods that were almost entirely working class. According to one analysis of the historical figures, St. Roch Parish made up nearly a third of the total population of the city and was more than 93% 13 Throughout, I use the historical English-‐language rendering of the provincial capital, Quebec City, without an acute accent. Likewise, when referring to the province, Quebec, and the city of Montreal, I do so again without the French accent because this is the way in which these geographical entities were described at the relevant time. 14 Glen Eker, Index of Jews Resident in the Province of Quebec According to the 1861 to 1901 Censuses of Canada, (Toronto: The Ontario Genealogical Society, 2004). While the official figure is 265, Eker has discovered an additional 10 Jews living in the provincial capital, as well as 25 individuals identified ethnically as Jews, but professing the Protestant religion. Id., 105 15 Gerald Tulchinsky, Canada’s Jews: A People’s Journey, (Toronto: University of Toronto Press, 2008), 93 et seq; Louis Rosenberg, Canada’s Jews: A Social and Economic Study of the Jews in Canada, (Montreal: Bureau of Social and Economic Research, Canadian Jewish Congress, 1939)
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Francophone Roman Catholic. Three–quarters of the city’s Jewish population lived in that same Parish.16 While they were therefore small in number, their concentration in an impoverished, traditionally French Canadian, Roman Catholic neighborhood meant that Quebec City’s Jews were a distinct and visible minority presence. On 30 March 1910, Jacques-‐Édouard Plamondon gave a public lecture at the Cercle Charest de l’Association Canadienne de la Jeunesse Catholique (Canadian Association of Catholic Youth) in the St Roch district.17 The topic of Plamondon’s speech was Le Juif (The Jew). The text was printed the next day in the local Roman Catholic newspaper, the Libre Parole18, and almost immediately thereafter the paper published the speech in pamphlet form and sold it throughout the St. Roch neighborhood.19 In the days that followed the speech and its dissemination, acts of physical violence and intimidation against Jews began to take place. Rocks were thrown through the windows of Jewish homes and businesses; the local synagogue was attacked by a gang of stone-‐ throwing youths. The blood libel, repeated by Plamondon during his speech, became part of the taunts hurled at Jewish passersby and shopkeepers by the local rabble. This “rabble” was made up of 12 and 13 year olds, most of whom attended school at the Séminaire de Québec.20 Seven of the young gang were arrested and five ultimately convicted for violating a municipal by-‐law dealing with breaches of the peace.21 16 Nicolas Lanouette, “Le Paysage Religieux de la Ville de Québec en 1901: Une expression de la ségrégation résidentielle?” Université Laval, mai 2002 17 For the background of the case, the best and most complete account remains, David Rome, The Plamondon Case and S.W. Jacobs, 2 vols., (Montreal: Canadian Jewish Congress National Archives, 1982) 18 La Libre Parole, 2 April 1910, 2 19 Le Juif, Conférence Donnée au Cercle Charest de l’A.C.J.C. par J. Ed. Plamondon, (Québec: La Libre Parole, 1910) 20 The Seminary was the oldest Roman Catholic school in Quebec and served as the training ground for the future priests and for the proper Roman Catholic education of the best and brightest of French Canadian boys destined to occupy leadership positions in the professions. 21 Testimony of Édouard Foley, Clerk of the Municipal Court, 19 May 1913, Quebec National Archives, Fonds des archives judiciaires de la Cour supérieure, district judiciaire de Québec TP11, S1, SS2, SSS1, art. 563
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Plamondon’s speech and its juridical aftermath would mark “a significant chapter in the history of the Canadian Jewish community”.22 Quebec’s tiny Jewish community would seek and find assistance from their more numerous counterparts in Montreal.23 Quebec’s Jews brought suit against Plamondon and the publisher of the Libre Parole, and aspirant to elected office, René Leduc. The blood libel and its refutation would figure prominently in the litigation, and on the surface, would be deployed by the lawyers and expert witnesses representing each side in the traditional legal mode of truth and falsity as invoked in “normal” libel cases. But, again, the case was more complex than the narrow legal categories of tort or delict, and the accompanying narratives were subtler and at the same time, more crude, more complex and simpler, and more deeply and broadly contextualized by all the parties, than any narrow technical argument or positivistic legal analysis would permit. In effect, Plamondon’s attack was the straw that broke the camel’s back. For several years, Quebec’s Jews had been subjected to increasingly vehement attacks from the ultramontane Francophone elite of the province. Again and again, prominent members of the Roman Catholic clergy and laity had singled out the province’s growing Jewish population with increasing vitriol.24 Plamondon’s speech and the ensuing violence against Jewish individuals and their property, and against the community’s synagogue, served for the Jews of Quebec City and their co-‐religionists in Montreal, as a clear indication of an ever-‐ worsening situation. Jews throughout Quebec found themselves historically and politically situated in an increasingly awkward position. An Anglophone Protestant minority constituted the industrial, commercial, and financial elite of the province. The majority of the province’s population, Francophone, Roman Catholic, was excluded from effective economic power. Education was divided along religious 22 Rome, op. cit., 1 23 The 1891 Census revealed that almost 2500 Jews lived in Montreal. By 1901, the number had increased to 6500. Eker, op. cit., 51 and 113 24 For a brief summary see, Rome, op. cit., 7-‐37
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lines, with Protestant and Roman Catholic schools and no common, public schools per se. The Church dominated life from cradle to grave for the majority. Jews were obviously neither Protestant nor Roman Catholic. They were, for the most part, with the influx of the 1890s and 1900s, neither Anglophone nor Francophone. While for a variety of reasons the vast majority of Quebec Jews chose to align themselves with the Anglophone Protestant minority for educational and economic purposes, they never really sat at all comfortably in a formal and informal constitutional matrix in which the dominant mythology of “Canada”, of being “Canadian”, or “Canadien”, existed as the key discursive matrix of national (and increasingly nationalist) ideologies centered in the ideals of two founding nations. Despite guarantees of formal legal equality which had existed since 1832, before the Jews of England gained similar status,25 Quebec’s Jews often found themselves between the rock of Anglophone Protestant antisemitism and Francophone Roman Catholic Jew-‐hatred.26 When Plamondon delivered his informative talk to the assembled Roman Catholic youth and the accompanying members of the clergy, his speech embodied the core elements of Roman Catholic ultramontane ideology, just as he personified that ideology. Plamondon himself was a well-‐respected member of the local legal community. He was a leading notary, and acted as an inspector within the profession.27 He had published several articles in the official journal of 25 An Act to declare persons professing the Jewish Religion entitled to all the rights and privileges of the other subjects of His Majesty in this Province, 1 Will IV, c 102, CAP LVII, 1832 26 David Rome & Jacques Langlais, Les Pierres qui Parlent: The Stones that Speak, (Sillery, PQ: Septentrion, 1992); Michael Brown, “From Stereotype to Scapegoat: Anti-‐Jewish Sentiment in French Canada from Confederation to World War 1”, in Alan Davies, ed., Antisemitism in Canada; History and Interpretation, (Waterloo, ON: Wilfred Laurier University Press, 1992), 39-‐66; Michael Brown, Jew or Juif ?: Jews, French Canadians, and Anglo-‐Canadians, 1759-‐1914, (Philadelphia, New York, Jerusalem: Jewish Publication Society, 1986) 27 The legal profession in Quebec is organized along similar lines to that of France. There is a division between lawyers (avocats) and notaries (notaires). The latter are charged primarily with assuring that documents, such as contracts for the sale of real estate and wills, are completed and registered according to law.
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the notariat.28 He was also one of the founders of the Libre Parole, and like many of his fellow legal professionals, active in ultramontane Roman Catholic circles.29 He was in effect a key actor in the provincial capital’s “clerical nationalist elite” (une certain élite clérico-‐nationaliste) for whom antisemitic propaganda played a central role.30 It is important to remember that the nationalist ideal of Quebec identity that circulated at the time was in fact heavily imbued with a French influence. The French Canadian elite was formed in Roman Catholic schools, the collèges classiques, which trained those who would become the province’s priests, doctors, lawyers, and notaries. The main Francophone university, Laval, was dominated by the Church. Most of the Roman Catholic hierarchy, and many of the province’s priests, had been trained in French Roman Catholic institutes in Rome and in France, or had been taught by French-‐educated seminarians. French ultramontanism, with its core antisemitism, was increasingly at the very heart of the Roman Catholic Church in Quebec, and therefore at the core of the majority population’s belief system. When Plamondon gave his speech to the assembled youth and clerics of Quebec City, in the early spring of 1910, French anti-‐Jewish literature had been circulating in the province for several years. Only twelve years earlier, France itself had experienced a dangerous and widespread wave of antisemitic violence, the echoes of which still informed antisemitic agitation there and in Quebec.31 Likewise, the Dreyfus affair still occupied the minds of French (and by extension French Canadian) antisemites. It was no coincidence 28 See generally, Sylvio Normand, “Plamondon, Jacques-‐Édouard” in Dictionnaire biographique du Canada, t. 15, (Québec: Presses de l’Université Laval, 2005), 926-‐28 (www.biographi.ca/FR/index.html) (17 October 2013) 29 For more detail on the case and its background than I can offer here, see Sylvio Normand, “L’affaire Plamondon: un cas d’antisémitisme à Québec au début du XXe siècle”, 48 C. de D. 477-‐ 504 (2007) and Constance Backhouse, “Anti-‐ Semitism and the Law in Québec City: The Plamondon Case, 1910-‐15”, in Daniel W. Hamilton and Alfred Brophy, (eds), Transformations in American Legal History: Law, Ideology, and Methods, Essays in Honor of Morton J. Horwitz, Volume Two, (Cambridge MA: Harvard Law School & Harvard University Press, 2010), 303-‐25 30 Normand, “L’affaire Plamondon”, op. cit., 479 31 Pierre Birnbaum, Le moment antisémite: Un tour de la France en 1898, (Paris: Fayard, 1998)
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that the paper published by Plamondon and Leduc, La Libre Parole, shared its title and its ideological approach with Drumont’s Parisian rag. ii) Plamondon’s Text and the Juridification of Antisemitic Discourse The French ultramontane influence on French Canadian nationalism, Plamondon and, on Quebec antisemitism in the early years of the 20th century, was clearly evidenced in the text of Plamondon’s lecture to the Roman Catholic youth of the provincial capital. For the notary and his audience, there could be no more interesting question than “the Jew” who “endangers our faith, our life, our honor and our property.”32 The “substance” of the speech repeated many of the well-‐ known canards about the “Talmud Jew”, who was permitted and encouraged to lie, cheat, and steal as part of the core elements of his existence. Indeed, what is most interesting and subsequently important about Plamondon’s text, especially in terms of the technical legal defense which he would mount when pursued by representatives of Quebec City’s Jewish community, is that few, if any, of the accusations and attacks that he mounts against the “Talmud Jew” actually came from him. His speech was little more than an agglomeration of antisemitic propaganda taken literally from the central writings of French, Roman Catholic Jew hatred. He quoted heavily from Lamarque’s translation of Rohling, Le Juif-‐ Talmudiste, and simply repeated various elements of that text for the delectation of his audience.33 When he came to the issue of ritual murder, Plamondon again relied on a third-‐ party text, this time Drumont’s La France Juive.34 He repeated the liturgy and litany of ritual murder accusations, beginning with William of Norwich, while at the same time pointing out that while ritual murder was “an essentially Jewish crime”, the “fear of our laws has almost completely suppressed it in Europe, but 32 “Or, à ce compte-‐là, jamais ne se peut trouver de plus intéressante que celle du Juif qui met en danger notre foi, notre vie, notre honneur et nos biens.” Le Juif , op. cit., 4 (All translations are mine) 33 (Brussels and Paris: A. Vromant, 1888) 34 (Paris: Marpon and Flammarion, 1885)
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it still occurs frequently in the East”.35 The Jew was quite simply “a thief of our property, a corrupter of our women, and the murderer of Christian children”.36 Plamondon also invoked a juridical argument in order to prove his ritual murder accusation. Again relying on the enumeration of the “facts” of ritual murder set out by Drumont, Plamondon asserted that the very fact that a number of these accusations had led to very important and highly publicized trials in Europe was proof of the “undeniable authenticity” (l’irrécusable authenticité) of the charge, even if for the most part, legal proceedings had not led to convictions. For him, legal smoke signified very clearly the existence of Jewish fire.37 His argument, presented to his audience like a case for the prosecution, was “grounded in absolutely reliable documents”,38 and if a notary like Plamondon knew anything, it was the faith and certainty one could place in verified, authentic documents. He finished his speech by telling his youthful audience “A worried Motherland awaits your reply”.39 Plamondon convinced his audience not just that Jew-‐hatred was a necessary requirement in the process of saving the nation, but more specifically that Jews did in fact kill Christian children. The ensuing acts of violence against Jewish individuals and property were almost invariably accompanied by verbal taunts repeating the blood libel, accusing Jews walking down the streets of St. Roch of “killing Christian children”. The Jewish community decided that while they might have tolerated the general atmosphere of Roman Catholic antisemitism that had always been present among the majority of their neighbors, they could not live with the agitation that had so easily led to outbreaks of violence against them. Benjamin Ortenberg, a Jewish merchant who had been subjected to attacks against his person and his property, first hired local counsel, the firm of 35 « Le meurtre lithurgique des tout jeunes enfants est aussi un crime essentiellement juif que la peur de nos lois a à peu près supprimé en Europe, amis qui est encore aujourd’hui d’occurrence fréquente en Orient. » Le Juif, op. cit., 21 36 “Voleur de nos biens, corrupteur de nos femmes, assassin d’enfants chrétiens…). Ibid., 22 37 Id., 21 38 “en me fondant sur des documents absolument sûrs”. Id., 25 39 “La patrie inquiète attend votre réponse”, Id., 31
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Taschereau, Roy, Cannon, Parent & Fitzpatrick. Lawrence Cannon, a future member of the Supreme Court of Canada, led the case at this stage, along with Louis Taschereau. The choice of this law firm was no accident. Its members were active politically in the Liberal Party, and were involved in other confrontations on the public stage with ultramontane elements in the city and the province.40 The lead partner was Louis Taschereau, who would become Prime Minister of Quebec, and whose efforts to reform the province would constantly confront ferocious opposition from the Roman Catholic episcopate.41 Louis Lazarovitz, the president of the local synagogue in St. Roch, which had been attacked and damaged by a gang of marauding youth following Plamondon’s speech, sought legal assistance elsewhere. In a decision which would forever change the nature of the case, and would come to embody the agency of Quebec Jewry in its struggle against the blood libel, Lazarovitz approached leading members of the Montreal Jewish community for help. Lazarovitz requested the assistance of the Baron de Hirsch Institute and its Legislative Committee. The Baron de Hirsch Institute had begun life in 1863, as the Young Men’s Hebrew Benevolent Society, the first non-‐synagogal body established by Canadian Jews.42 It later changed its name to honor the significant support given to its immigrant aid and educational activities by the Belgian philanthropist, Baron de Hirsch.43 By 1910, it was a body that was widely 40 For the background of Cannon, see Backhouse, op. cit. 41 Antonin Dupont, “Louis-‐Alexandre Taschereau et la législation sociale au Québec, 1920-‐1936”, 26 Revue d’histoire de l’Amérique française 397-‐426, (1972) 42 “The Young Men’s Hebrew Benevolent Society”, CJC, The David Ansell Collection. For the history of the YMHBS/Baron de Hirsch Institute and its role in the development of Montreal Jewry, see, Baron de Hirsch Institute 1863-‐1963, Centenary Book, (Montreal: Baron de Hirsch Institute, 1963). “Baron de Hirsch Institute, Montreal”, in Arthur Daniel Hart, (ed), The Jew in Canada, (Toronto and Montreal: Jewish Publications Limited, 1926), 201-‐05 43 “Baron de Hirsch Donates: Twenty Thousand Dollars to the Young Men’s Hebrew Benevolent Society”, American Israelite, 28 August 1890; An Act to change the name of the Young Men’s Hebrew Benevolent Society of Montreal to “Baron de Hirsch Institute and Hebrew Benevolent Society of Montreal” and to extend its powers, 63 Vict, c 106, (1900); Dominique Frischer, Le Moïse des Amériques: Vies et Oeuvres du Munificent Baron de Hirsch, (Paris: Bernard
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representative of the broad and increasingly complex structures of Montreal Jewry, and it was actively involved in all aspects of Jewish life in the city. Samuel W. (Sam) Jacobs was a leading member of the Montreal Bar and had long been active in the Baron de Hirsch Institute. A law graduate of both McGill and Laval, Jacobs had been made a King’s Counsel in 1906. He would later become the first Jewish member of the Canadian Parliament.44 In order to give his full attention to the Plamondon case, he moved his law practice from Montreal to Quebec City. In this move his junior, Louis Fitch, accompanied him.45 Fitch had come to Quebec City as a two-‐year old in 1891, and graduated in law from McGill University. He won the Gold Medal and was awarded a travelling scholarship to the Sorbonne. He would later be named as King’s Counsel and would serve as a Member of the Provincial Legislature in Quebec. The interests of the Jews of Quebec City Jews were in the hands of a leading member of the Montreal Bar, and his young associate, a fluent French-‐speaker, familiar with the local environment in which the Jewish community lived. A third actor who would play a key role in presenting “the Jewish case” against Plamondon and his publisher was the principal “expert witness” for the prosecution, Rabbi Herman Abramowitz of Montreal. Abramowitz was born in Russia and arrived in the United States as a ten year old in 1890. He attended public school in New York and graduated from City College. He became the first graduate of the Jewish Theological Seminary to receive the degree of Doctor of Hebrew Literature, and in 1903 he accepted an appointment as rabbi of Montreal’s second oldest synagogue, Shaar Hashomayim, the English, German, and Polish synagogue.46 Grasset, 2002); Samuel J. Lee, Moses of the New World: The Work of Baron de Hirsch, (New York and London: Thomas Yoseloff, 1970) 44 “S.W. Jacobs, K.C., M. P., Montreal”, The Jew in Canada, op. cit., 379; Bernard Figler, Biography of Sam Jacobs, (Gardenvale PQ: Harpell’s Press, 1959) 45 Bernard Figler, Louis Fitch Q.C., (Ottawa: Author, 1968) 46 “Reverend Dr. H. Abramowitz, Montreal”:, The Jew in Canada, op. cit., 92; Bernard Figler, Rabbi Dr. Herman Abramowitz, Lazarus Cohen, Lyon Cohen, (Gardenvale PQ: Harpell’s Press, 1968); Rabbi Wilfred Shuchat, The Gate of Heaven: The Story of Congregation Shaar Hashomayim of Montreal, 1846-‐1996, (Montreal and Kingston, London, Ithaca: McGill-‐Queen’s University Press, 2000); An Act to amend the charter of the Corporation of the German and Polish Jews of
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It is not my intention here to trace the history or to give a complete account of the trial itself. Rome, Normand, and Backhouse provide enough detail to allow the interested reader to grasp the most significant details of the case. Instead I want to focus on the treatment afforded to the blood libel in the case, which was, in my view, at the heart of the plaintiffs’ argument, and which certainly was at the core of Plamondon’s belief system. In doing so, I most obviously fall, on the surface at least, into the traps and pitfalls associated with the juridical turn in blood libel history. We have already seen that Plamondon in his speech focused not just on the content of the ritual murder accusation, but more importantly that he had asserted in no uncertain terms that the accusation was obviously, as a legal matter, true. The plaintiffs in their case, and the defendants in their rebuttal, each played out the traditional juridical narrative-‐one side attempting to establish, by way of Abramowitz’s expert testimony, that the accusation was untrue, and the other asserting both that it was true and secondarily, that all Plamondon had done was present other, more learned and academically sound views about the accusation.47 In other words, he offered a defense in the alternative. The blood libel was not a libel because it was true, or, if by some bizarre chance it were not true, he was covered by a form of privilege, because he had merely offered his audience a good faith and accurate account of scholarly writings on the subject. The arguments of both sides at this level adopt the true/false dichotomy inherent in the judicial turn in ritual murder accusations. But this reading is one that needs to be further contextualized and subjected to a deeper hermeneutic approach. Again, as Richard Weisberg reminds us, the hermeneutic of acceptance sits side by side with another juridical possibility, the constitutional jugular argument. While by its very nature, and the forum in which the argument was presented in the Plamondon case, the jugular argument is also a juridical one, it is also always one which articulates more deeply embedded values, Montreal, 2 Ed VII, c 95, (1902), “creating “ the Congregation of English, German and Polish Jews of Montreal”. 47 “The Quebec Libel Case: Startling Evidence Given of Mediaeval Prejudice”, The American Hebrew and Jewish Messenger, 11 July 1913
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constitutional and constitutive assertions of equality and belonging. This, I believe, makes it worth our while to explore the four juridical embodiments of the blood libel accusation outlined in this paper. It is evident that the parties articulated crucial and core constitutional values within the apparently limited and limiting context of litigation, a key component of which appeared to have been the true/false dichotomy of blood libel litigation. But beyond this restrictive narrative frame, it should become clear that both sides felt free and able to vent their competing constitutional visions, at the heart of each of which was a blatant and clearly articulated understanding of the place (or non-‐place) of Jews in Quebec society. There was no deeply or subtly encoded message on the issue in Plamondon’s speech, nor would there be in his defense arguments. Jews were thieves, violators of “our women”, and murderers of “Christian children”. They did not belong in Quebec; their presence was an insult and a real and present danger to “our” society. As is the case today with Holocaust Denial, there was no need for nuanced decoding, hermeneutic subtlety, or access to a specialized and obscure secret sub-‐cultural lexicon to understand what Plamondon meant.48 Likewise, the plaintiffs’ invocation of the guarantees of equality within the great traditions of British justice left little to the imagination. Ironically perhaps, in the Quebec City blood libel case, the political, social, and religious values of both sides, and the real stakes of the case for all parties, easily displaced the mere true/false dichotomy. Ortenberg’s statement of claim set out the principle “fault” alleged against Plamondon and his publisher. Notary Plamondon, on the said occasion, maliciously, for the express purpose of injuring plaintiff and his co-‐religionists and compatriots, sought to prove that each and every Jew, without exception, at Quebec as
48 See David Fraser, “’On the Internet, Nobody Knows You’re a Nazi’: Some Comparative Legal Aspects of Holocaust Denial on the WWW”, In Ivan Hare and James Weinstein, (eds), Extreme Speech and Democracy, (Oxford and New York: Oxford University Press, 2008), 511-‐37, at 529-‐33
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elsewhere, by their belief and by their acts, are the enemies of the Catholic faith, and of the lives, honor and well-‐being of Christians49 (§ 4) After repeating each of the claims about Jewish perfidy that Plamondon had unequivocally asserted were based in the Talmud, and refuting those claims, the Plaintiff stated The said Plamondon, on the said occasion, accused plaintiff and his co-‐ religionists of being thieves, corrupters of women, assassins of Christian children, instigators of revolutions, and after having related alleged crimes which have been committed by Jews in other countries, the said Plamondon took the trouble to say to his audience that they should not forget that the Jew, that is, the plaintiff and his co-‐religionists, is the same in all places, and that what he has done elsewhere, he will certainly do here, in Quebec, as soon as he thinks himself sufficiently powerful to dare do it (§ 11) The defendants’ answer could not, for its part, have been plainer. After issuing a blanket denial of the assertions contained in §§ 4 and 11, among others, and claiming that the text “speaks for itself”, Plamondon and his publisher set out their basic position. The establishment of Jews in Christian countries has always raised and still raises grave political, religious and social problems in view of the unconquerable antagonism that exists between the beliefs and mentalities of the Christians and the Jews, respectively…. Everywhere where they have gone, they remain isolated, form a colony apart, are always adorers of the golden calf, and have no other occupation than to drain money from Christians… (§10) 49 Province of Quebec, District of Quebec, No 784, Superior Court , Quebec National Archives, Fonds des archives judicaires de la Cour supérieure, district judiciaire de Québec TP11, S1, SS2, SSS1. The statement of claim and many of the other documents relating to the case are also available at Canadian Jewish Archives, File S.W. Jacobs, MC/6, Box 2, Folder 2/1
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… During many years, driven from Europe by the Christian governments and nations, the Jews have come in large numbers to Canada, and especially to the Province of Quebec, where they infest the suburbs of our cities and country places, and where they have become a social scourge, making a ruinous competition in business with Christians, and increasing their fortunes as above mentioned, the whole to the imminent danger of the Christian people, and of the Christian institutions of this province… (§ 12) Finally, the defendants claimed, the unjustly impugned address was based “in innumerable works published on the Jewish peril since at least fifty years” and, most significantly, “they are true”. (§ 13)50 Little was left to the hermeneutic imagination here. While there was a clear and stark presentation of the true/false dichotomy that forms the traditional constitutive framework for blood libel cases, the defendants simply could not be satisfied with a simple presentation of their truthfulness and academic fair comment defenses. What was really at stake, as Johnson argues, was indeed an ideological vision of the relationship between Christian (or at least the dominant Roman Catholic Christian group) and Jewish inhabitants of Quebec. But the ideology of the ultramontane ideal of French Canadian nationalism was not encoded or elided and obscured in technical legalism, or obscure theological semantic formulations. The defendants made it clear that the case was simply another example of the inherent danger posed to a Christian Canadien nation by the mere presence of Jews. It is perhaps worth underscoring the narrow positivistic frame of the legal context in which the case took place. This was not, strictly speaking, a “libel” case. Instead this was an action brought by Ortenberg and Lazarovitz and their attorneys under the general civil liability provision of the Quebec Civil Code. The private law system of Quebec is based in the civil law tradition, while the public 50 Ibid., 27 May 1910
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law of the province is fundamentally grounded in common law principles. Then Article 1053 of the Code provided that Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.51 This was an action in delict, where the key elements would be “fault”, “damage” and “causation” within a civil law narrative and normative system. Even the technical framing of the case by Ortenberg’s Quebec City attorneys in their written pleadings, however, revealed that this was not seen as an ordinary manifestation of a simple “delict” case. Taschereau’s firm limited the claim in damages against the defendants to $500, not because this expressed the amount of material and moral loss suffered by their clients. They did so because if they had claimed more than $500, the defendants could have chosen a trial by jury. In Roman Catholic Quebec City, a Jewish plaintiff confronting the antisemitic outbursts of a well-‐known and highly respected member of the Church and the legal profession “would not have had the ghost of a chance with a Jury”.52 $500 then was a code for Jewish claims to equality. The case was in a real sense a test case, a case meant to test the degree of tolerance and equality that Jews could expect in Canada, under the British justice system. While Louis Taschereau had no faith in the objectivity of a Quebec City jury, he assured Jacobs I have no reason to doubt however, that our judges in Quebec will give us fair play and if we can make a good case, I expect a favorable judgment.53
51 Toute personne capable de discerner le bien du mal, est responsable du dommage cause par sa faute à autrui soit par son fait, soit par l’imprudence, négligence, ou inhabilité. 52 Letter of 8 November 1910, from Louis Taschereau to Sam Jacobs, Canadian Jewish Archives, File S.W. Jacobs, MC16, Box 2, Folder 2/1A 53 Ibid.
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The hermeneutic balance here was a fine one. British justice and fair play would only really be available in a substantive sense, if a good case could be made by the plaintiffs. The blood libel accusation needed to be met with solid technical legal argument about fault and damages, while at the same time, claims to “justice”, understood by the Jewish plaintiffs in terms of equality, had to be asserted in a jugular fashion if the failings and dangers of the juridical turn were to be avoided or minimized. iii) The Quebec Blood Libel Trial While the statement of claim and defense were filed in this case in May 1910, a little more than a month after Plamondon’s speech, the trial did not begin until three years later, in mid-‐May 1913. The delaying tactics of the defendants were finally exhausted, and proceedings began at about the same time as Mendel Beilis stood trial for murder thousands of miles away.54 After Ortenberg testified concerning the series of attacks on Jewish individuals and property following Plamondon’s public address, and the Clerk of the Court affirmed that several individuals had in fact been arrested and convicted for these offences, the plaintiffs’ attorneys summoned Rabbi Abramowitz to the stand. After establishing his academic and theological credentials, and his familiarity with the Talmud, and this then allowed the rabbi to carefully detail the significance and content of Talmudic teachings, Jacobs led him through testimony that demolished each of Plamondon’s assertions concerning Jewish perfidy. On the specifics of the blood libel in particular, Abramowitz stated without qualification or hesitation that there had never been a Jewish ritual calling for the spilling of the blood of Christians. He gave a lengthy statement about the history of the blood libel from the Middle Ages, and more significantly, he highlighted for the Court the number of Papal Bulls and episcopal statements, and declarations from 54 There is a vast and comprehensive literature on the Beilis case. See generally, Mendel Beilis, Blood Libel: The Life and Memory of Mendel Beilis, (Jay Beilis, Jeremy Simcha Garber, Mark S. Stein (eds), (Chicago: Beilis Publishing, 2011); Ezekiel Leikin, The Beilis Transcripts: The Anti-‐Semitic Trial that Shook the World, (Northvale NJ and London: Jason Aronson, 1993); Alexander B. Tager, The Decay of Czarism: The Beiliss Trial, (Philadelphia: The Jewish Publication Society of America, 1935). Others at the conference will address these issues.
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other prominent Roman Catholic theologians denouncing the ritual murder accusation.55 The attorneys for the defense continued to invoke a set of discourses which at the most fundamental level simply ignored what Abramowitz had said. Instead, the cross-‐examination focused on the Dreyfus case in France, the extensive literature cited by Plamondon, and the logical conclusion that such widespread antipathy towards Jews had to have a raison d’être grounded in fact, and not for some simple pleasure in mistreating Jews. Whatever ideology might have been present was not difficult to decode in the circumstances.56 The defendants from their written plea to their oral evidence, simply asserted over and over again the basic tenets of their ultramontane antisemitism, including their fundamental belief in the facticity of Jewish ritual murder practices. The plaintiffs called Canon F. G Scott, of the Anglican diocese of Quebec, to address the blood libel accusation in Plamondon’s speech. In a reply laced with sarcasm, Scott stated: I am an archaeologist and I like old-‐fashioned things, and I find more old-‐ fashioned things in Quebec than I do anywhere else; and this is an old-‐ fashioned idea that died out in the middle ages. We know of course that the idea of the blood libel/ritual murder did not “die out” in the Middle Ages as Scott asserted. That it had been rejected as “untrue” by elements within the hierarchy of the Roman Catholic and Anglican Churches was 55 Again, Rome, Normand and Backhouse all provide useful summaries of the entire proceedings. The transcripts and evidence can be found in the Archives nationales du Québec, “Preuve”, Ortenberg v. Plamondon, Cour supérieure, No. 778, T11-‐301, 3C08-‐4201A.ANQ, in the Archives nationales on the campus of Laval University. 56 The English-‐language press, and strong elements of the liberal Francophone press gave extensive coverage to the trial, and they did not fail to highlight the unsubtle approach of the defense. See Rome, The Plamondon Case and S.W. Jacobs and Joshua D. MacFadyen, ‘”Nip The Noxious Growth in the Bud”: Ortenberg v. Plamondon and the Roots of Canadian Anti-‐Hate Activism”, 12 Canadian Jewish Studies 73-‐96, (2004)
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no doubt true, but the case itself demonstrated that the blood libel was alive and kicking in Quebec in the first twenty years of the new century. Scott offered a robust defense of the Jewish community against Plamondon’s accusations and added under cross-‐examination that while nothing in Plamondon’s speech overtly counseled violence against Jews, had he believed what Plamondon had said about Jewish perfidy, he “would commence slaughtering Jews tomorrow”. As a pure matter of proof, Scott’s testimony was strong and unequivocal. He had strong academic and theological credentials and had confirmed Abramowitz’s rebuttal of the blood libel and stood shoulder with his Jewish fellow citizens against Plamondon’s attack. As a matter of the social and political semiotics of the case, however, Scott’s testimony was more complex and its effect more ambivalent. From the French Canadian Roman Catholic perspective, Scott’s sarcasm could only have been perceived as embodying yet again English Protestant attitudes of condescension towards the majority population of the province. Since the earliest days of the English conquest of Quebec, a strong undercurrent of popular, and indeed official, discourse within the minority Anglo-‐Protestant population had directly attacked the backwardness of the Church-‐ridden peasant population of the province. Lord Durham’s Report to London on the situation in the Canadian colonies, which would provoke the 1840 Act of Union, between Lower and Upper Canada, had (in)famously concluded There can hardly be conceived a nationality more destitute of all that can invigorate and elevate a people, than that which is exhibited by the descendants of the French in Lower Canada, owing to their retaining their peculiar language and manners. They are a people with no history, and no literature.57 That Scott, the Anglican Canon, would accuse Plamondon, and with him the entire majority population of the province, of living in the Middle Ages, while the more sophisticated Anglophone minority evidenced enlightened theological 57 Lord Durham’s Report: An Abridgement, (Ottawa: Carleton University Press, 1982). 150
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attitudes, simply confirmed the sense of superiority of les Anglais which French-‐ speaking Roman Catholics experienced on a daily basis. Moreover, for ultramontanist elements, Scott’s attitude and declarations confirmed their view of the dangers facing Quebec society. Modernity of the kind embodied in Scott’s attitude and testimony could only lead to the menacing dominance of secular liberalism, and the loss of power and influence for the Church. Already the combination of increased industrialization and the weaknesses of a rural economy were leading to mass migrations among French Canadian Roman Catholics, who were either leaving the country altogether to seek their fortunes in New England, or who were moving to Montreal in increasing numbers. There they faced poverty, under-‐employment, and most importantly the attractions of a secular big city existence in an economy and cultural environment dominated by the English elite. The dangers to the Roman Catholic, rural image of French Canadian national identity were real, and Scott, the English, and above all the Jews, were key actors in creating those perils. Finally, Scott’s solidarity with the Jews of Quebec would simply have given further confirmation to the dominant social, cultural, and political understandings abroad among the Roman Catholic majority. For them, while Jews posed a particular and independent menace because they were, after all, Jews, their presence in the province, meant a further strengthening of the Anglophone Protestant minority. Jews opted to learn English when they came to Quebec, because this was the language of commerce, and it was the language of North America, giving them greater opportunity to move to greener pastures in Canada or in the United States. Jews attended Protestant, English-‐language schools, not the Roman Catholic system.58 In addition to being “Jews”, Jews were also to a certain extent “honorary Protestants”. Either they did not fit within the dominant ideology of Quebec as a nation of two peoples, English and French, Protestant and Roman Catholic, but both Christian, or else if they did fit, they had 58 I explore these questions in more detail in my current project, “Honorary Protestants: The Montreal Jewish School Question”, (draft manuscript) See generally, Arlette Corcos, Montréal, les Juifs et l’École, (Sillery, PQ: Les Éditions du Septentrion, 1997) and David Rome, On the Jewish School Question In Montreal, 1903-‐1931, (Montreal: Canadian Jewish Congress National Archives, 1975)
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to be placed within the English/Protestant orbit, clearly outside dominant cultural tropes of an emerging Quebec identity as a French-‐Speaking, Roman Catholic “nation.” The defendants gave voice to all of these narratives of Quebec identity. Their cross-‐examination of Rabbi Abramowitz was anything but subtle, with continuing assertions of coded exclusions from the Talmud, so that only the inner circle of initiates would know of the instructions to kill Christian children. Reputable academic sources, such as Drumont, on which Plamondon had relied, offered ample confirmation of the truthfulness of everything he had said. Cross-‐ examined by Ortenberg’s lawyer, he simply and unproblematically rejected Abramowitz’s testimony, because Abramowitz “is a Jew” whose testimony against a Gentile, as the Talmud itself proved, would be a lie. Indeed and again, Plamondon urged the Court to reject Abramowitz’s testimony on the grounds that lying would be considered a duty for a Jew in such a case. “Academic” arguments that Jews would, could and should lie were translated into a legal argument that a Talmud Jew like Abramowitz could not be a credible witness. For the defendants, their evidence-‐in-‐ chief left little doubt as to where they stood, as a matter of law and politics. Plamondon testified that he stood by all of the claims contained in his speech, including the ritual murder accusation. Three Roman Catholic priests, Abbé D’Amours of St. Roch parish, Abbé Nadeau, a French-‐trained professor at the Collège de Lévis across the St. Lawrence from Quebec City, and Abbé Grandbois of Quebec City, each testified that Plamondon’s assertions, including the blood libel, were true and fully supported by a large body of Roman Catholic literature. Each admitted that they could not read Hebrew, and that their views on the content of the text were grounded solely in the same secondary Roman Catholic literature relied on by Plamondon. Of course, they insisted that such texts must be considered to be authoritative and that everyone knew about the Jewish menace. Throughout the trial, the defense
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relied clearly and without hesitation on the “truth” of their antisemitic utterances as evidenced by Roman Catholic authority from the Mother Country.59 At the end of the trial, it was clear that the parties had come to the juridical stage of their dispute with radically opposed intentions and goals. The plaintiffs had asserted at every stage the falsity of Plamondon’s statements about the malevolence of the Talmud Jew. They had placed a particular importance on disputing the veracity of the blood libel, and had used theological experts, Jewish and Christian, as well as devastating cross-‐examinations of the three Roman Catholic priests, to disprove the ritual murder accusation. On the other hand, the defendants refused to disguise their blatant antisemitism, which for them was a simple, logical, and truth-‐based position informed by the overarching transcendent proofs of Jewish perfidy found in authoritative texts. At this stage, and at this level of analysis, then, all of the dangers of the juridical approach to the blood libel appear to have been manifest. The statement of claim had put Plamondon to the test of proving the truth of his claims relating to the blood libel and other calumnies. … plaintiff has the right claim from defendant incalculable damages, which, as he wishes simply to vindicate his honor, and put defendant in default to prove the truth of the accusations contained in the pamphlet which he printed and published, he consents to reduce to the sum of $500 (§19) The case was presented and argued in terms of the true/false dichotomy by both sides. Yet more was clearly at stake. The Jews of Quebec City wanted not just to disprove the claims of ritual murder and other antisemitic myths in this particular case, but they sought to instrumentalize the juridical forum in order to put a halt to Plamondon’s and La Libre Parole’s anti-‐Jewish campaigns, which had 59 Normand, op. cit., 494; MacFadyen, op. cit.
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already resulted in acts of violence and intimidation.60 Lacking the numbers, wealth, or access to political power in the overwhelmingly Roman Catholic city, they had turned to a forum, the courts, the juridical, in which the odds were, in theory at least, more favorable. Indeed, as we have seen, the reduction of incalculable monetary loss to $500 had for the lawyers in the case much less to do with “honor”, and more to do with ensuring that the forum in which they were making their claim within the apparent formal frame of the true/false dichotomy was one in which the case would be decided away from a jury. They had placed their faith in “our” judges. Likewise, for the defendants, from their pleadings to the evidence they had led in chief and in cross-‐examination, the centrality of their antisemitic beliefs, of their claims that Jews murdered Christian children, was always at the core of their legal and political, not to say theological, position. Again, there was no subtle ideological encoding here. The true/false binary of the juridical served their political purposes very well. At the same time, they did not hesitate to mount a technical legal defense beyond that true/false binary. The said address contained no accusation injurious to plaintiff personally being unknown to defendant. It incriminates only the Jewish race, its doctrines and religious and social practices, and points them out as dangerous for the Christian people of this Province… (§14) Even in presenting this technical legal defense, the defendants continued to assert their ideological position, that Jews were a foreign body, dangerous to a Christian (Roman Catholic) Quebec. But the narrow legal pleading was also clear. Nothing in what Plamondon said had identified Lazarovitz or Ortenberg. He had made claims that Jews murdered Christian children, not that Lazarovitz or Ortenberg had killed anyone. But even within the pleading, Plamondon’s true character was revealed. He claimed that the plaintiff was unknown to him. Yet Plamondon worked in St. Roch, where Ortenberg and his father kept a well-‐ known clothing store. Indeed, Plamondon’s notarial office had been next door to 60 Normand, op. cit., 495
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the Ortenberg store. It beggars belief that Plamondon did not know who Ortenberg was, just as it is beyond probability that Plamondon the antisemite did not know of Lazarovitz, the president of the St. Roch synagogue. These facts alone do not, however, negative the objective legal argument that because his speech did not identify Ortenberg or Lazarovitz either by name or by description, there was no fault, and certainly no causal link, between what Plamondon had said about “Jews”, and any loss suffered by the plaintiffs as a result of the actions of third parties. The summing up by Sam Jacobs embodied the dangers inherent in the juridical manifestation of blood libels, but more importantly it voiced, in clear and explicit terms, the jugular argument that had in reality always informed the apparently narrow factual and legal narratives of the trial itself.61 Jacobs highlighted the centrality of the blood libel to Plamondon’s address and insisted on the “legal” nature of the case itself. This was not, he insisted, a case between a Roman Catholic defendant and a Jewish plaintiff, but was an action under Article 1053 of the Civil Code by an injured party against the person who had caused the damage.62 Jacobs proceeded with a careful factual and legal attack on all the claims of truth asserted by the defendants and in particular with a sustained demolition of the “expert” Roman Catholic theologians.63
61 Jacobs’ argument is available in the ANQ court file. It is also found more conveniently in Rome, The Plamondon Case and S.W. Jacobs, vol. 2 and in The Quebec Jewish Libel Case: Address Delivered by S.W. Jacobs, K.C., Counsel for the Plaintiff Before the Superior Court, May 23, 1913, (Montreal: The Jewish Times Publishing Co., Ltd, 1913). The quotations come from this version of his plea. Jacobs, along with Lyon Cohen, had founded the Canadian Jewish Times, the first English-‐language Jewish newspaper in Canada, in 1897. Limits of time and space prevent me from offering a reading of the defense arguments in the case. In essence, they reasserted the truthfulness of the attacks against Jews, including the reality of ritual murder, and re-‐iterated the argument that Plamondon’s speech had not addressed the plaintiffs, but “Jews” in general. They also insisted on, and continued to invoke the theme of their evidence on the dangers of the Jewish presence in Quebec. 62 At 3 63 At 6-‐9
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Finally he returned to the blood libel. He insisted again that the plaintiffs had demanded that Plamondon prove the veracity of the claims of Jewish ritual murder, in terms that, on the surface at least, echoed all of the problematic issues arising out of the juridical true/false narrative structure of the libel trial. He also summarized in significant detail the existing documentary record of Roman Catholic sources denouncing the blood libel/ritual murder accusation and the complete absence of “legal” proof supporting Plamondon’s defense that the statements and documents enumerating Jewish ritual murder were true.64 Finally he added an explicit reference to the international campaign in support of Mendel Beilis by leading public figures, including a number of French intellectuals, in order to buttress the argument that such accusations were false. But he made this plea, particularly in relation to the blood libel, in terms that echoed the words of the original statement of claim when he stated But it is the good name, the fame and reputation of an entire community that is at stake and to vindicate which we are here to-‐day.65 This hinted at the overarching narrative frame of Jacobs’ argument. It was couched in terms of broader significance than a simple true/false dichotomy of a delict/libel case might suggest. Even the invocation of the Beilis case was meant to serve as an unfavorable point of comparison between the civilizing project of law embodied in the suit brought by Lazarovitz and Ortenberg, and the crude and medieval Russian criminal justice system. More crucially, it was deployed by Jacobs to point to the dangers of mob rule and outbreaks of pogromic violence that had traditionally accompanied such medieval claims in Europe, and the echoes of such mob violence evidenced by the attacks on Quebec City’s Jews that had followed Plamondon’s speech. Quebec’s legal system was specifically asked to become part of the international, civilized, and civilizing campaign against ritual murder accusations and mob attacks, and the Beilis case was invoked as the embodiment of all that uncivilized in the ritual murder accusation. 64 At 12-‐15 65 At 9
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Only recently, the modern world was stirred to its depths by a “ritual murder” accusation, identically similar to those of mediaeval days, made in Russia, against Jews, under circumstances which would go to show that the Russian peasant is being taught to believe Jews require the blood of infant Christian children for the Passover festival. The Russian people are very pious, and, perhaps, they differ in that respect from people of other countries, for they are both pious and bigoted, and when this trumped up charge of ritual murder was formally made by the Russian authorities, it was felt throughout the world that unless some campaign of education were made, to correct the impression gained, with regard to this outrageous charge, massacres of Jews would result, and thousands of innocent people either put to death or driven from their homes.66 At an important level for the plaintiffs, this was not just a simple delict case under the general civil responsibility provisions of Article 1053 of the Civil Code. The blood libel was an issue of international significance. With the parallels between the trial in Kiev and the litigation in Quebec City, there was more at stake in this juridical context than a narrowly conceived battle over the true/false question, or the causal connection between Plamondon’s attack and the mob violence which had ensued. The trial was for Jacobs a signifying instance in which the rejection of Plamondon’s claims about ritual murder would “do some good, if it will bring to the attention of the citizens of Quebec the knowledge that no person, outside people of the Plamondon and Leduc stripe, believe such nonsense.”67 Jacobs constructed his plea according to a broad vision of the nature of the conflict and the stakes of the struggle. While being confined to some extent by the demands of legal pleadings and positive norms of responsibility under Article 1053, he addressed the court as the institutional embodiment of rationality and good sense, and pursued the court of public opinion at the same time. 66 At 18 67 At 21
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Finally, Jacobs came to the jugular argument that took his plea and the case out of the narrow confines of the true/false semiotic trap of the juridical instance and legal narrative narrowly conceived. He made a clear reference to the 1832 statute that had emancipated Quebec’s Jews years before similar measures in Britain itself. After pointing out that the statute granting Jews full legal equality had been passed under the government of Louis-‐Joseph Papineau, a French Canadian nationalist hero, if not a friend of the Roman Catholic Church,68 Jacobs called the 1832 Act “our Magna Charta”.69 He went on That is the great charter of our rights in this country, and under that act we demand before the Courts of this Province, the very same rights as other people have. We have always received them, and I am sure we will continue to receive them. We want no more, but we certainly will be satisfied with no less.70 This was as far as a legal argument could get from one involving Article 1053, “fault”, “causation” and “damage”. Jacobs invoked the long-‐term historical reality of the presence of Jews in the Province, and the entrenched legal “constitutional”, or at least constitutive, equality that they had always enjoyed. The principle in play, the demand stemming from the plaintiffs, was nothing more and nothing less than a recognition in this context that a finding against Plamondon’s blood libel and other antisemitic declarations, was compelled by the ideals of equality embodied in Quebec law for nearly one hundred years. The Court had to find against Plamondon because to do otherwise would constitute a direct attack on the rights of Jews to exist in the Province of Quebec. It would be a judicial denial 68 Papineau, born in 1786, was the son of an established seigniorial family. Educated as a lawyer, he became a member of the Assembly and was a leader of the Parti Canadien, which later became the Parti des Patriotes. His political worldview was changeable, and labeling Papineau is fraught with difficulty, but he was an ardent supporter of French Canadian rights and an opponent of the executive branch under Governor Craig. At the time of the Jewish emancipation bill he had declared himself a republican. He died in 1871. Dictionary of Canadian Biography Online, http://www.biographi.ca/en/bio/papineau_louis_joseph_10E.html 69 At 26 70 At 26-‐27
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and rejection of the principles embodied in the Jewish Magna Carta of 1832. The Court could find for the Plaintiffs and give a firm and direct confirmation of the ideals of equality. Or the Court could find for Plamondon, thereby confirming that Jews were murderers of innocent Christian children. In doing so, the Court would renounce the guarantee of full equality embodied in the 1832 statute. Jacobs continued his presentation of the jugular constitutional argument grounded in assertions of full equality by offering a direct comparison with the Beilis case At this moment there are two cities in the world where charges of ritual murder against Jews are on the list of trials-‐ Kieff and Quebec. One in darkest Russia, the other in enlightened Canada… (in) Quebec, a British city, with British courts of justice… … and I know further that when judgment will be rendered in each case, the poor wretch who is on trial for his life in Kieff, will get Russian justice, and Plamondon and Leduc, the defendants in this case, will get British justice.71 Within the narrow frame offered by the provisions of Article 1053, and the discursive requirements imposed by legal procedure and principle on the plaintiffs to prove their case on the balance of probabilities, Jacobs managed to expand his plea to include the jugular assertion of full equality for Jewish citizens of Quebec. He invoked the legal and political history of Quebec as the first part of the British Empire to fully emancipate its Jewish inhabitants. He asserted foundational ideals of British justice before British courts, and contrasted them with the legal system of “darkest Russia”. Defense counsel also offered an international comparative legal perspective for the court to consider. In addition to invoking the arguments of the truthfulness of Plamondon’s claims, counsel for the notary asserted a jugular argument of his 71 At 30-‐31
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own, one founded in the right of all citizens to engage in arguments and debates on matters of public, political, and social import. This position was again calculated and articulated in the basic assumption that the presence of Jews in St. Roch was “a legitimate question” to be posed to, and discussed by, the predominantly French Canadian population, as a matter of public interest and national survival.72 The free speech principle was then supported by pointing out that French Canadian Roman Catholics had as much interest in, and right to, discuss the Jewish presence among them, as American newspapers had the right to describe “the Negro” as lazy and debauched, or Mormons as “immoral”. Each side argued not just about the “facts” of the case, or the proper analysis of those “facts” under Article 1053, or about the true/false dyad as it related to the ritual murder accusation. They engaged overtly and in a jugular manner in arguments about British justice, equality, and free speech. The Quebec City libel case demanded, in the opposing discourses offered by plaintiffs and defendants, British justice for Plamondon and Leduc. We know now that in fact Jacobs’ prognostication about the nature of Russian justice and the fate of Mendel Beilis, in the final outcome, proved to be inaccurate. His belief in the ideals of British justice, in a British court, was also belied by the result. iv) The Juridical Moment: Judgments The trial judge, Malouin J., took almost six months to deliver his decision. Finally, on 22 October 1913, 100 years and one month ago, British justice was rendered in Ortenberg v. Plamondon and Lazarovitz v. Plamondon. The decision was short and not so sweet. The defendant, in his lecture, incriminates only the Jewish race, its doctrines, and its religious and social practices without attacking the plaintiff in particular. 72 Rome, The Plamondon Case, v. 2, op. cit., 152-‐60
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I am of the opinion that the plaintiff, being neither named nor specifically identified, has no recourse civilly against the defendant, and in consequence, I dismiss the action, with costs. Having arrived at this conclusion, it is useless for me to study the other questions raised.73 Those other questions were of course all of those falling both within the narrow hermeneutic of the dual true/false paradigm, as well as the broader issues of “jugular” constitutional significance. This was not a free speech case, nor was it one about the deep norms of equality and citizenship. Instead the judge elided all of these issues because he had accepted the narrow, positivistic assertion put forward by the defendants, that Plamondon’s speech did not name or identify Plamondon or Lazarovitz. It targeted “the Jewish race”, and as such could not give rise to a legally cognizable claim by individual Jews. This would have been bad enough, from the plaintiffs’ perspective, but the judge did more than simply dismiss the action. On one reading of the reasons for judgment, he did give indirect confirmation to the idea that Plamondon’s lecture was, as matter of fact, and now of law, about “the Jewish race, its doctrines, and its religious and social practices”. Usury, fraud, rape, and ritual murder were for Plamondon among those “doctrines” or “religious and social practices”, and they now arguably constituted matters of faith and practice among Jews according to Plamondon and the judge. The court left unchallenged Plamondon’s accusations. Sam Jacobs still believed in British justice. He appealed. The Court of Appeal was more accommodating of the plaintiff’s claim, (Lazarovitz withdrew his appeal to simplify the argument), but perhaps in ways which were still unsatisfactory for Jacobs and those members of the larger Jewish community in Montreal who feared the spread of antisemitic activism and violence to that city. Cross JA found that Ortenberg did in fact have a legal claim because there were only 75 Jewish families in Quebec, and a smaller number of merchants of the Hebrew faith. When Plamondon urged his listeners and readers to display their loyalty to the French Canadian nation and their disregard for 73 1913 CarswellQue 377, 14 D.L.R. 549
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Jews by boycotting Jewish merchants, he had sufficiently identified the shopkeeper Ortenberg for the judge I cannot agree that the respondent’s utterances amount merely to a non-‐ actionable denunciation or controversion of a race, or religion at large. They were that and, as regards the appellant, they were more. They were an invitation and an incitement to a boycott of the handful of Jewish traders in the city of Quebec. The invitation to boycott was accepted and acted upon.74 Carroll JA, the only other appellate judge to offer a written opinion in the case, took a broader approach, outlining the various accusations levied by Plamondon against the Jews, including the ritual murder charge. While tempering his language, perhaps unfortunately from the appellant’s perspective, the judge did declare that the proof in the case clearly did not establish that the Talmud taught “murder, adultery, theft and other crimes, which, practiced against Christians, became virtues”.75 Absent such proof by the defendant, the declarations must be considered to be false, “for the purposes of this case”. Those statements incited others to act, causing damage to the appellant. The fact that there were only 75 Jewish families in Quebec, out of a total urban population approaching 80,000, was crucial here. This was not, the judge held, a defamatory statement that was “addressed to a group so numerous that it got lost in the number”.76 For Justice Carroll this meant that as a matter of law the attack was nothing more than an individual libel against all 75 Jewish heads of family in Quebec City at the time. The libel imputed to each member of the small community “the desire to commit
74 Ortenberg v. Plamondon, 1914 CarswellQue 71, 24 B.R. 385, para. 16; 35 CLT 262 (1915) 75 “Qu’il me suffise de dire, pour les fins de cette cause, qu’il n’a pas été prouvé que le “Talmud” enseignait que le meurtre, l’adultère, le vol et autres crimes, qui, pratiques contre les chrétiens, deviennent pour les juifs des vertus”. 1914 CarswellQue 40, 24 B.R. 69, para. 14 76 “Ce n’est pas le cas d’une injure adressée à une collectivité assez nombreuse pour qu’elle se perde dans le nombre”. Para 23
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abominable crimes of which their race is accused, when they become strong enough to commit them here.”77 While it was somewhat broader in its approach, addressing the “crimes”, including ritual murder, attributed by Plamondon to the Jews of Quebec City on this analysis, Carroll JA’s judgment is hardly satisfactory in asserting jugular arguments about equality. The Jews of Quebec City were defamed by the statements about ritual murder and other crimes, because the group was sufficiently small to be identified as “individualized” victims. But they were defamed, on Carroll JA’s own narrowing reading of the case, only because Plamondon had not offered sufficient proof of the veracity of his statements. Indeed Carroll ended his judgment by finding that Plamondon had acted in good faith, believing that he was fulfilling a public duty. The judge therefore reduced the damages to $50, but added all costs.78 Ortenberg “won” his case, but the invocation of the great and foundational principles of British justice fell on deaf ears, as they ran afoul of narrow positivism and judicial restraint. The limitations inherent in the juridical turn are evident here. Cross JA allowed the appeal because the boycott urged by Plamondon against Jewish merchants clearly targeted an identifiable small number of individuals of which the plaintiff/appellant was clearly one. For Carroll JA, the case was one in which the group was likewise discrete enough to permit legal success on the ground of defamatory accusations against those individuals. But the libelous statements themselves were not libelous at their core. They, like all other accusations of criminality, must be proved if the defense is to be successful. On the facts and evidence of this case, Plamondon simply did not discharge this evidentiary burden. Ritual murder accusations were not per se and inherently gross falsehoods. They were statements that could be placed before a court and contested or proved using the rules of evidence and the rhetorical devices of the law. 77 “… pour avoir attribué à tous et à chacun de ces derniers la volonté de commettre les crimes abominables dont on accuse leur race, quand ils seront assez forts pour les commettre ici.”. Para 29 78 Para 33
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v) Narrating the History, Ideology, and Politics of Ortenberg v. Plamondon and the Blood Libel in Québec The Jewish plaintiffs won their damages action against Plamondon and his publisher, Leduc. Sam Jacobs was able to articulate in his closing argument at trial the broad aspirational values of full equality under British justice which would inform a number of attempts by the Quebec Jewish communities to assert their basic rights within and against the dominant dualist national rhetoric of an English/Protestant-‐French/Roman Catholic narrative of identity and belonging.79 But the entire juridical process, in its most basic formal manifestations, trial and appellate judgments, ignored these “jugular” principles of full equality in favor of narrow legalistic conclusions. Despite the best efforts of Jacobs and his colleagues, the blood libel remained technically “unproven”, but still alive in the shadows of Jewish pleas for equality under British justice. Sylvio Normand in his study of the Plamondon case insists that the debates and pleadings throughout indicate that the essential conflict between the parties was never really a legal one. The social and political environment in which the Jews of Quebec City found themselves was one that could not be given a full and proper expression in the narrow language of legal evidence and argument.80 Likewise, for the ultramontane elements represented by Plamondon and Leduc, the peril of the Jewish presence in Quebec was never going to be solved by, or be reducible to, an action in delict. But Normand does seem to underplay the fact that each side, for better or for worse, did manage, both in the evidence it produced and in its oral arguments, at trial and on appeal, to articulate jugular, principled arguments which went to the heart of the blood libel by exposing the real meaning of the ritual murder accusation for a Jewish presence in the 79 See e.g., Hirsch and Another v. Protestant Board of School Commissioners et al, [1928] AC 200; Hirsch v Montreal Protestant School Board Commissioners, [1926] SCR 246; Hirsch and Cohen v Protestant Board of School Commissioners et al, 31 Revue de Jurisprudence 440, (1925) and Pinsler v The Protestant Board of School Commissioners, 23 CS 365, (1903) 80 “L’afffaire Plamondon”, op. cit., 495
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overwhelmingly Roman Catholic province. The failure here was not an inevitable result of the juridical turn stemming from the Jewish community’s reaction to Plamondon’s speech and the consequent violence. The weakness is to be found in the judicial responses to the arguments presented. None of the judges in the case decided to confront the ideological stakes of the case. Instead, whether because of a lack of judicial courage, a desire to seek a technical legal solution to the problem, or a more limited understanding of the judicial role than that proposed by the parties, they sought an answer in the law narrowly conceived. The parties themselves, as well as outside observers of the case, all understood the political and ideological, as well as the constitutional and constitutive stakes of the case. Only the courts, perhaps deliberately, missed the point. The Jewish community managed to highlight in the world of public opinion the absurdity of the blood libel and the danger inherent in giving voice to this manifestation of the ritual murder accusation.81 But the appeal to broader principles of equality and British justice could have no real effect in a province where the ultramontane element was asserting more and more influence over the church hierarchy, and then through the social and educational apparatus of the province. The understanding of the foundational principles of the province, its constitutive reality, and therefore its legal normative structure, was for these French Canadian intellectuals, one in which the entire societal, political, and legal structure of Quebec, was Roman Catholic.82 While the historical political and military reality of the British conquest on the Plains of Abraham forced them to find a modus vivendi with an economically dominant Protestant minority, co-‐ existence between Christians was never likely to be the same as accepting “Jews”. When Sam Jacobs, on behalf of the Jews of the province, pleaded for the fundamental values of British justice, for full equality for Jewish subjects, he was invoking foundational norms that were not accepted by the majority of the population as embodying the true values of national identity. The 1832 statute 81 See Rome, The Plamondon Case and S.W. Jacobs, op. cit., and MacFadyen, ‘”Nip The Noxious Growth in the Bud”, op. cit., 82 See e.g. Louis-‐Adolphe Paquet, Droit Public de l’Église, (Québec: Événement, 1909), cf., S. Pagnuelo, Études Historiques et Légales sur la Liberté Religieuse en Canada, (Montréal: Beauchemin & Valois, 1872)
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remained on the books, but Jewish emancipation and equality were not reflective of current, concrete, political, and social understandings of Quebec as a nation. In such circumstances, it might be argued, the juridical turn was doomed to fail because there was, in reality, no jugular constitutional argument which might have any carriage within, let alone beyond, the precincts of the Palais de Justice. In such an environment, the blood libel could not be defeated either legally or politically. In 1914, between the trial judgment exonerating Plamondon, and the appeal condemning him on narrow grounds, Abbé Antonio Huot delivered a public lecture to the assembled Young Catholics of St. Joseph in Montreal. Unsurprisingly, because as David Rome wrote, “Father Huot was one of the leading antisemites of his community”, 83 the priest’s chosen topic was “the Jewish Question”. More specifically, he offered “some observations on the question of ritual murder”.84 As in Plamondon’s case four years earlier, Huot’s speech was published and given broader circulation and purchase among the devout, this time by the presses of Catholic Social Action, (l’Action Sociale Catholique), a body dominated and controlled by the ultramontane elements of the clergy and the lay elite, and carrying the imprimatur of the Cardinal Archbishop.85 Because he could not specifically address the controversy in Ortenberg v. Plamondon under the laws of contempt relating to the ongoing appeal in that case, Huot placed his comments directly in the context of the Beilis trial, or as he put it “the Kiev trial” (le process de Kief). He informed his audience that they had been witnesses to yet another attempt, as had been the case during the Dreyfus affair, by “the Jews” to manipulate the world press. They should be warned, he said, that the press wanted them to believe that because the “Kiev trial” was now over and had ended in the acquittal of Mendel Beilis, the “Jewish Question” had disappeared as well. Huot’s purpose was to highlight the danger of such thinking 83 On the Jewish School Question in Montreal 1903-‐1931, (Montreal: Canadian Jewish Congress National Archives, 1975),100 84 La Question Juive: Quelques Observations sur la Question du Meurtre Rituel, (Québec: L’Action Sociale Catholique, 1914) 85 Richard Jones, L’Idéologie de l’ Action Catholique (1917-‐1939), (Québec: Les Presses de l’Université Laval, 1974)
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and to warn his audience of devout young Roman Catholics that the Jewish Question was more alive than ever, especially for them in Montreal where Jews continued to arrive on every new ship carrying European immigrants to Canada.86 Jews were everywhere he explained, the question so complex that he could offer only an overview, highlighting the real dangers facing Quebec society. Huot replicated the intellectual path followed by Plamondon in Quebec City four years earlier. His speech consisted essentially of lengthy quotations from various antisemitic texts produced in France in the previous decades, including the French translation of Rohling’s tract, The Talmud Jew. Modern principles and creeping liberalism, with their false idea of “religious freedom”, and the secret powers of Free Masonry, together simply served to promote Jewish dominance.87 After setting the stage by informing his audience of the context and reality of Jewish domination, Huot turned to his real focus, “ritual murder”. Huot insisted that the audience had to be aware that the acquittal of Mendel Beilis did not in any way settle the ritual murder issue. The Jewish question itself was still at the heart of all issues with which good Catholics should be concerned.88 For Huot the question was one not of religious doctrine per se, but one demanding an historical, factual inquiry. He asked his audience to consider the real motivations behind the Jewish campaign to influence and dominate public opinion throughout the Beilis case. Could it be, he asked, that all this publicity was sound and fury created by Jews to obscure both the fact-‐finding process of the trial in Kiev, and the broader and deeper historical inquiry into the facticity of ritual murder? What were the Jews so afraid of? For Huot, the Jews were afraid of the revelation that historical inquiry would uncover the entire sordid story of ritual murders of innocent Christian children 86 La Question Juive, 1 87 Ibid, at p. 13-‐16. See also Antonio Huot, Le Fléau Maçonnique, (Québec: Dussault & Proulx, 1906), published under the auspices of the Archbishop of Quebec. 88 La Question Juive, 17
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by Jews, as commanded by the Talmud. Simon of Trent was murdered by Jews in 1475.89 Brother Thomas, a French Capuchin monk, was killed by Jews in Damascus in February 1840.90 Huot left his audience with the assurance that ritual murder was “a fact, duly recorded by history”.91 Roman Catholics had a duty to be wary of Jews in order to protect the interests of their own faith. At the same time, Roman Catholics could do a great service to the Jews by praying for their conversion.92 Sam Jacobs’ plea for equality, his invocation of the emancipatory text of the 1832 statute in Quebec, fell on deaf ears before the courts of Quebec. The majority population of the province could not even begin to hear or understand them. There was no hidden or subtle hermeneutic of blood libel in Quebec, either in its juridical manifestation, or in its invocation in the political, social, and theological spheres of the majority population and its church leaders. The blood libel was part of a clearly articulated theocratic message about the nature of Quebec identity as a French-‐speaking Roman Catholic nation. Dreyfus, Beilis, and Ortenberg/Plamondon were simple manifestations of a Jewish plan to attack social order by spreading false information about the proven historical reality of the ritual murder practices commanded by the Talmud. Jews lied and manipulated public opinion through their control of the international press. Emancipation and equality served no function; only recognition of the one true faith could ever make “Jews” a part of Quebec society. In the meantime, Huot emphasized, Roman Catholics could only be truly warned about the Jewish menace if they accepted that Jews were, and had always been, murders of innocent Christian children. 89 Ibid., 29 et seq. 90 Id., 32 et seq.; See Ronald Florence, Blood Libel: The Damascus Affair of 1840, (New York: Other Press, 2006) and Jonathan Frankel, The Damascus Affair: ”Ritual Murder”, Politics and the Jews in 1840 (Cambridge and New York: Cambridge University Press, 1997) for different accounts. See also, Albert M. Hyamson. “The Damascus Affair”, 16 Transactions of the Jewish Historical Society, 47-‐71, (1952); Rina Cohen, “L’affaire de Damas et les prémices de l’antisémitisme modern”, 34 Archives Juives 114-‐24, (2001) 91 “… le meurtre rituel est un fait, dûment enregistré par l’histoire”. Id., 36 92 Id..
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3. “The Incident At Massena”: The New York State Blood Libel Affair i) The Context and the Story of the Massena Blood Libel The small town of Massena sits in upstate New York, near the St. Lawrence River and the Canadian border. Like many other New York and New England towns, Massena flourished for a few years in the early part of the 20th century due to its access to natural resources such as timber and hydroelectric power. During the period of economic growth, Massena became an attractive destination for impoverished French Canadians from nearby Quebec, and for European immigrants. Among the latter, was a small group of Jews who settled in the town.93 This influx of “foreigners”, especially Jewish and Roman Catholic foreigners, did not sit well with the nativist element of American politics. The 1920s were just a few years removed from the lynching of Leo Frank. More recently, Henry Ford’s campaign in the Dearborn Independent, in which the Protocols of the Elders of Zion featured so prominently, figured in the lives of American Jewry, and in the imaginations of a Protestant Americanism so dear to their racist opponents.94 The Ku Klux Klan had left its southern birthplace and had spread to the far corners of the United States, (and into Canada), including upstate New York and Massena.95 Antisemitism had more than a foothold in the American mind.96
93 For the best, but still problematic, background of the Massena Blood Libel, see, Saul S. Friedman, The Incident at Massena, (New York: Stein and Day, 1978). A brief history can be found at Harry Schneiderman, “Review of the Year 5689”, American Jewish Yearbook 1929, 21-‐23 94 Victoria Saker Woeste, Henry Ford’s War on Jews and the Legal Battle Against Hate Speech, Stanford: Stanford University Press, 2012) 95 The key work remains, David M. Chalmers, Hooded Americanism: The History of the Ku Klux Klan, (3rd revised ed), (Duke: Duke University Press, 1987). See also, Kelly J. Baker, Gospel According to the Klan: The KKKs Appeal to Protestant America, (Lawrence: University Press of Kansas 2011) 96 Richard Frankel, “One Crisis Behind?: Rethinking Antisemitic Exceptionalism in the United States and Germany”, 97 American Jewish History 235-‐58, (2013)
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While the details of what happened in Massena in the series of events known as the only case of the blood libel in the United States are unclear,97 most accounts share certain points.98 22 September 1928 was Babe Ruth Day in Massena, but it was also the eve of Kol Nidre and two days before Yom Kippur. That afternoon a four year-‐old local girl, Barbara Griffiths, went into the woods near her home on the outskirts of Massena in search of her brother. When she did not return, her parents called upon their neighbors to help locate her, and before too long the village’s emergency warning siren had sounded. A large-‐scale search was organized by the mayor, Gilbert Hawes, and led by the town’s fire department, an apparent hotbed of KKK membership. Because the woods where young Barbara had gone missing were outside the village boundaries, technical responsibility for the search fell to the New York State Police. ii) The Emergence of an Official Blood Libel In New York State At some point while the search for Barbara was ongoing, the police questioned Willie Shulkin, the son of Jacob Shulkin, a well-‐known local merchant, and prominent member of the Jewish community, about the disappearance. Willie suffered from some form of mental illness, sometimes referred to as bipolar disease, sometimes as retardation, and while it became apparent to the police upon questioning him that he could be of no help, his detention was enough to cause concern among Massena’s Jews.
97 Woeste mentions in passing that “six cases (of ritual murder accusations) that amounted to little more than rumor occurred in the United States, mostly in the northeast, between 1913 and 1928”. Henry Ford’s War on Jews, op. cit., 311. Abraham Duker offers five other instances, from Clayton, Pennsylvania (1913), New York (1913), Fall River, Massachusetts (1919), Chicago (1919) and Pittsfield, Massachusetts (1919). Their story awaits further study, although none seems to rise to the status of an “affair” or a “case”. “Twentieth Century Blood Libels in the United States”, in Leo Landman (ed), Rabbi Joseph H. Lookstein Memorial Volume, (New York KTAV, 1980), 85-‐109 98 For an account from a member of the local Jewish community, disputing some of Friedman’s details, see Samuel J. Jacobs, “The Blood Libel Case at Massena-‐ A Reminiscence and a Review”, 28 Judaism 465-‐74, (1979)
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Meanwhile, the blood libel rumor had been born. Again accounts are unclear and contradictory, but the most likely story is that the Greek owner of a local restaurant where the state troopers ate, had passed along to them the “information” that in the old country, it was a well-‐known fact that Jews killed Christian children to use their blood during high holy days.99 The troopers then questioned Morris Goldberg, an employee of the local Alcoa plant. Goldberg had been raised in a Christian orphanage in New York, where he had been informed of his Jewish origins, but inculcated with the institution’s religious beliefs and practices. While he associated with the Jewish community in Massena, he was considered as an outsider, almost as shabbas goy, who displayed his ignorance of the faith during his stumbling performances at synagogue services. When questioned by the police about the possibility that young Barbara Griffiths had been taken by local Jews to be sacrificed, he apparently responded that while there may have been such ritual murders in Europe, he could not say that he had seen or heard of such practices in the United States. This ambiguous response was enough for the police to summon the local rabbi, Berel Brennglass, to be questioned. When the Mayor and state trooper Corporal H. M. McCann put the ritual murder accusation to him, Brennglass turned his fury at being forced to leave his home and abandon his preparations, on the eve of an important holiday, on his interrogators. He demanded to know who had begum such an outrageous libel against the Jews of Massena, and informed them in no uncertain terms that such defamatory and ignorant statements and beliefs had no place the 20th century United States, coming out of the mouths of police officers and elected officials. The next day, Barbara Griffiths emerged unharmed from the woods, less than half a mile from her home. The search was called off, and by the 6 pm Kol Nidre service, Massena’s Jews knew that the crisis caused by the blood libel rumor was over. But of course, it was not over. 99 Sakis Gecas, “The Port Jews of Corfu and the ‘Blood Libel’ of 1891: A Tale of Many Centuries and of One Event”, 7 Jewish Culture and History 171-‐96, (2012); On the Rhodes blood libel, see Jonathan Frankel, The Damascus Affair, op. cit., 69-‐ 72 and 156-‐63
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As soon as Jacob Shulkin had spoken to his son Willie about his time in police custody, he had telephoned the home of Louis Marshall in New York to inform him of the looming crisis for Massena’s Jewish community.100 A reporter from the JTA was dispatched to the small upstate community, and the blood libel crisis in Massena entered its more public phase. Accounts of the search for Barbara Griffiths contain rumors and counter-‐rumors. According to some, Jewish homes were searched, as were the basements of businesses belonging to Jews. Others assert that Willie Shulkin, Morris Goldberg, and Rabbi Brennglass were the only Jews involved in the inquiry into the possibility of a ritual murder and no premises were searched. The rumor that the Jews of Massena had kidnapped Barbara Griffiths to kill her for ritual purposes had been shown to have been ill founded when she emerged from the woods. Rabbi Brennglass had excoriated the police and the town’s mayor in no uncertain terms about the idiocy of the ritual murder accusation. But as it stood, the Massena blood libel still apparently circulated in public discourse, although how deeply or broadly it had penetrated public awareness, is a matter of some debate. Nonetheless, it is clear that “fact” that it had been possible that local Jews had taken Barbara to kidnap and murder a Christian child had informed, however briefly, the official narrative of the “criminal” disappearance articulated by the Mayor and the State Police. They had interrogated Morris Goldberg and Rabbi Brennglass on the assumption that the ritual murder accusation could have been true. At this point, the true/false juridical discursive economy of the ritual murder accusation was in play, and had received official, state-‐based sanction. The local Jewish community now sought to invoke a counter-‐narrative about the dangers of antisemitism, and about the ritual murder accusation in particular. They deployed publicity in the form of calling upon a journalist from the Jewish news agency to report on the “affair”, and they also demanded a public apology from the police and from the Mayor. From a strictly and narrowly conceived juridical space, the narrative of the blood 100 On Marshall’s life generally, see M.M. Silver, Louis Marshall and the Rise of Jewish Ethnicity in America, (Syracuse: Syracuse University Press 2013) and Herbert Alpert, Louis Marshall 1856-‐1929: A Life Devoted to Justice and Judaism, (New York: iUniverse, 2008). Alpert makes no mention of the Massena case, while Silver treats the Massena case in an epilogue, 526-‐31. For Marshall and the juridical turn more generally, see Woeste, Henry Ford’s War on Jews, and for the Massena case and Marshall, Woeste, 310 et seq.
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libel in Massena would take a turn to what Woeste characterizes as “enforcement without law”.101 iii) Juridifying and Politicizing the Blood Libel Accusation in New York: Jews and Roman Catholics While Mayor Hawes apparently made a vague and half-‐hearted attempt to apologize, the case was now, temporarily at least, in the hands of Marshall and the American Jewish Committee. The Massena Blood Libel was no longer a simple local affair. It had now taken on a “national” character. The blood libel legend which had caused so much trouble for Jews in the “benighted lands of Europe” had no place in the United States, which, according to the record of Rabbi Brennglass’s response to the trooper’s question, the Rabbi had described as “the most enlightened and civilized country in the world”.102 Marshall demanded, as he had in the Henry Ford case,103 a public apology, “couched in such terms as will meet with my approval” or failing which, the resignation of Mayor Hawes, who was “an active participant in the outrage perpetrated” in spreading and acting upon the ritual murder accusation to question local Jews about the blood libel as it related to Barbara Griffith’s disappearance.104 But Marshall and the American Jewish Committee were soon faced with the involvement of Rabbi Stephen Wise and the American Jewish Congress, their great rivals for representative status among American Jewry.105 Wise immediately made use of his personal relationship with powerful New York politicians, especially Governor Al Smith. Smith, a Roman Catholic, was no stranger to the rhetorical power of nativist groups, including the Klan, and was
101 Woeste, op. cit., chapter 9, 288 et seq. 102 “Jews in Upstate Town Resent Attempt to Concoct Ritual Murder Accusation”, Jewish Daily Bulletin, 2 October 1928 103 Woeste, op. cit. 104 “Marshall Demands of Massena Mayor Public Apology or Resignation for Encouraging Ritual Murder Tale”, JTA, 3 October 1928 105 Woeste, op. cit., 310 et seq.
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happy to intervene in the case.106 Because the State Police in the person of Trooper McCann had been at the heart of the blood libel accusation in Massena, it was open to the Governor to use police disciplinary proceedings as the forum in which the charge of ritual murder could be aired and countered. He ordered an investigation into Rabbi Wise’s complaint of official misbehavior by the State Police during the Massena incident.107 On 5 October 1928, following an investigation which confirmed Rabbi Brennglass’s account of the interview with the mayor and Trooper where the ritual murder accusation was put to him, a formal disciplinary hearing took place in Albany against McCann. Stephen Wise was present and the Congress made official arguments to the head of the State Police, Major John A. Warner. Warner was himself a Roman Catholic and the son-‐ in-‐law of the Governor. Mayor Hawes also testified. As a result, McCann was severely reprimanded for having revived the “ancient slander” against Jews and was indefinitely suspended by the head of the state law enforcement agency.108 Mayor Hawes issued a formal apology to the Jewish community at the end of the McCann hearing for what he “ought to have known to be a cruel libel imputing human sacrifice as a practice now or at any time in the history of the Jewish people”.109 Brennglass and Shulkin on behalf of the Jewish congregation in Massena wrote to Marshall informing him that they were now entirely satisfied and that they considered the matter closed.110 The Permanent Commission on Better Understanding Between Christians and Jews in America issued a statement condemning the ritual murder accusation as a “barbarous charge” which would not have ben worthy of public comment had it not been for the active involvement of the police and the elected mayor of a New York municipality in spreading such rumors, and the resurgence of the blood 106 It is perhaps worth noting here that Trooper McCann himself was an Irish Catholic. 107 “Apologies Offered, Massena Incident Closed, Police Investigator Reports”, JTA, 4 October 1928; “Governor Smith Promises State Investigation of Massena Incident”, JTA, 5 October 1928 108 ‘Corporal H. M. McCann Suspended, Major Warner Reports to Governor Smith”, JTA, 6 October 1928 109 ‘Massena Mayor Apologizes Following Formal hearing Before New York State Police Superintendent”, JTA, 7 October 1928 110 ‘Corporal H. M. McCann Suspended”, op. cit.
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libel in Europe.111 The New York Times covered Marshall’s demand for an apology, the disciplinary hearing in Albany, and the Permanent Commission’s denunciation of the blood libel.112 It gave particular prominence to the Permanent Commission’s evisceration of the ritual murder accusation and to the danger posed by such discourse to the public order of the country. Meanwhile, as the Jewish community of Massena returned to normalcy, the New York Jewish press urged the drawing of a line through the upstate antisemitic drama. They deplored the ongoing conflict between the American Jewish Committee and the American Jewish Congress. The rivalry between Marshall and Wise was “abnormal and unhealthy for the entire body of American Jewry”.113 Shulkin and Brennglass had to impress upon Marshall that his continued demands for an apology dictated in terms of which he would approve were useless. Any ongoing campaign against Hawes would only prolong the agony of the Massena community. The Massena case was one in which the true/false dyad played itself out in a number of contexts, and in which law and legal discourses were prominent. There had been a formal investigation led by the Mayor and the State Police into the possible criminal kidnapping of young Barbara Griffiths by Massena’s Jews. The official approval given to the discourse of ritual murder spread throughout the town and according to some accounts, gained purchase in the broader social narrative, driven by the Klan members among the residents of Massena. The Jewish community itself refuted the charges, beginning with Rabbi Brennglass’s outraged response to his interrogation. Organized Jewry soon publicized the affair with the involvement of the press and the competing organizational structures headed by Louis Marshall and Stephen Wise. The Roman Catholic governor of the state and the head of his police force intervened with alacrity. Official investigative documents emanating from the New York State Police and the findings of the disciplinary hearing against Trooper McCann all voiced repugnance not just at the idea of the ritual murder accusation itself, but perhaps 111 “Better Understanding Commission Issues Statement on Massena Tale”, JTA, 7 October 1928 112 “Trooper Punished for Massena Action, 6 October 1928 113 JTA, “Deplores Dual Action in Massena Incident”, 9 October 1928
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more vitally, that the accusation had been given some imprimatur of acceptability by the Mayor and the trooper. In circumstances such as these, as in other similar cases, it is impossible to avoid the originating hermeneutic frame of the truth/false argument. But it was possible to add to that interpretative and narrative apparatus clear and unequivocal declarations that the libel was not only false, but that it had no place in the public life of “the most civilized country in the world”. Once again, the Massena case embodies the idea that it is possible, and indeed that it is ethically required, to assert broader, deeper, constitutive jugular arguments. The blood libel, the ritual murder accusation against the Jews of a small town in upstate New York, began a brief public and national dialog about identity and equality, about the removal of such discourse from civilized public communication, and most certainly from the apparatus of elected government and law enforcement. As had been and would again soon be the case in Quebec, and in the Manitoba blood libel cases that follow, the ideological stakes of the apparently simple true/false mapping of such “libels” were apparent to all involved. Jews in these cases would and did invoke principled rhetoric about the ideals of equality that were foundational norms of Quebec, Canada, and in Massena, the United States. Proponents of the “truth” of the ritual murder of Christian children by Jews put forward a different normative idea of the “nation”, one in which Jews had no place. By taking as much control of the situations as they could, legally and politically, Jews in all these instances sought to win the rhetorical battle for formal equality and the struggle to concretize constitutional citizenship within that frame. 4. More Jews, More Blood Libel: The Second Blood Libel and Quebec Law i) Jews and Roman Catholics: Mainstream Antisemitism and the Blood Libel in Montreal It will come as no surprise that Huot’s blood libel public address in 1914 moved the debate from the small Jewish population of Quebec City, to the larger and
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more important urban center of Montreal.114 In the years following the ritual murder accusations of Plamondon and Huot, the Jewish population of Montreal had continued to rise, although, as a result of the arrival of other immigrant groups, and influx of rural French Canadians into the metropolitan area in search of economic betterment, the percentage of Jews within the city’s population actually fell during the next outbursts of the blood libel in Quebec legal and political discourse and practice. In 1921, there were 45,802 Jews in greater Montreal, 6.1 % of the population. Ten years later, the number had risen to 57, 997, but had declined in relative terms to constitute 5.8% of the citizenry of the province’s largest city.115 For French Canadian ultramontanists, the Jewish pest was ever more present. Poor Jews competed with ill-‐educated French Canadians for the lowest paying jobs in Montreal’s burgeoning industrial economy. Socialist and Communist organizers, many of whom were Jews, brought the menace of Bolshevism to Montreal. Jewish peddlers dominated low-‐level commerce in the city’s east end, where the Jewish population settled, next to traditionally French Canadian areas. Jewish students attended Protestant schools, giving further proof of their “alien” status. Jews spoke Yiddish among themselves and English as the language of business. Their growing numbers, their demographic reality, their rejection of the language of the majority population, and the simple fact that they were “Jews”, all fed into a growing antisemitic feeling among the population, an antisemitism which was fed from the pulpit of every Roman Catholic Church in the city. Of course, the resurgent antisemitism of the 1920s and early 1930s in Montreal was not limited to Francophone Roman Catholics. This period also would be characterized by a series of crises, informed by antisemitic belief and rhetoric, involving the issues surrounding the rights of Jewish children in the city’s Protestant school system.116 McGill University imposed quotas on the number of 114 See discussion above 2 v) 115 Rosenberg, Canada’s Jews, op. cit., 31 116 Corcos, op. cit.
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Jews allowed to enroll in certain departments. But Protestant antisemitism was, by dint of demographic reality, a minority phenomenon, both in terms of the relative number of Protestants in Montreal, but more particularly because among Protestants, blatant expressions of antisemitic bias were always countered within Protestant communities themselves by voices, if not imbued with philosemitism, at least preaching Christian love and accommodation for the people of the book. There is no evidence to indicate that the blood libel ever surfaced among Protestant Montrealers, even at the height of tensions and conflicts with the Jewish communities on the “School Question”. Among Roman Catholics, the dominance of ultramontanism and an emerging nationalist rhetoric, moving ever more certainly towards the embrace of fascism and Nazi ideologies of antisemitism, was still omnipresent.117 Few moderating voices were being heard.118 Given the history of ritual murder accusations within the discursive arsenal of Roman Catholic antisemitism, it is hardly surprising that the blood libel would again enter the public debates about the place of Jews in Montreal in the 1920s and early 1930s. Throughout the 1920s, official voices in Roman Catholic Quebec had mounted a series of antisemitic attacks. The focus at this time was two-‐fold. The evolving “Jewish School Question” meant that the Church was at the forefront of political and legal efforts to maintain and re-‐assert the fundamentally “Christian” character of “public” education in the province, and to ensure, as a consequence, that the creation of a third Jewish school system in Montreal was avoided at all costs.119 The second focus of anti-‐Jewish agitation was economic and commercial, with continuing campaigns urging the boycott of Jewish businesses by French Canadians, embodied in the creation of the “Achat Chez Nous” 117 Susan Mann Trofimenkoff, Action Française: French Canadian Nationalism in the Twenties, (Toronto and Buffalo: University of Toronto Press, 1975) and Esther Delisle, The Traitor and the Jew, (Toronto: Robert Davies, 1993) 118 Pierre Anctil, “Interlude of Hostility: Judeo-‐Christian Relations in Quebec in the Interwar Period, 1919-‐39”, in Alan Davies (ed), Antisemitism in Canada, op. cit., 135-‐65; For a more complete study from a different perspective on the next period, David Rome, Clouds in the Thirties: On Antisemitism in Canada, 1929-‐1939, (Montreal; Canadian Jewish Congress national Archives 1977 and 1978) 119 Corcos, Montréal, les Juifs et l’École, op. cit.
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program. But new actors were entering the debate and soon the blood libel would again feature prominently in this iteration of the dominant narrative of Quebec antisemitism. 120 As had been the case in the Quebec City blood libel, the Montreal scene was a two-‐handed affair. In the 1910s, Plamondon had been the “brains” behind the promotion of the blood libel, and Leduc had published and propagated the myth more broadly. In Montreal, Adrien Arcand, a “journalist”, was the intellectual instigator of broad antisemitic attacks and of the re-‐emergence of the ritual murder accusation. Arcand had come to public prominence when he had been named chief spokesperson and press representative by the Archbishop of Montreal during the “Jewish School Question”.121 In mid-‐1929, Arcand and his co-‐conspirator and publisher, Joseph Ménard, founded two newspapers, le Miroir and le Goglu, (later to be briefly joined by a third, le Chameau), the main purpose of which seemed to have been to voice Jew hatred in as many forms as possible. But their hatred of the Jews, consistent with their broader ultramontane politics and nationalist ideologies, also caused them to target the Liberal government of Louis Taschereau, who had been one of the plaintiffs’ lawyers in the Plamondon case. The 30 April 1930 edition of le Goglu for example began with the headline, “Canada is the country of Canadians (Canadiens) and not of Jews”.122 It then showed a cartoon of the two Liberal government officials charged with the solution of the “Jewish School Question”, Prime Minister Taschereau and Provincial Secretary Athanase David, kneeling before Peter Bercovitch and Joseph Cohen, the two Jewish members of the National Assembly. The accompanying text by Arcand explained that the Liberals had “delivered Quebec to the Jews”. 123 It was a short step from there to the repetition of the blood libel. Montreal Jewry regularly approached the provincial government with pleas to end the 120 Michael Oliver, The Passionate Debate: The Social and Political ideas of Quebec Nationalism 1920-‐1945), (Montreal: Véhicule Press, 1991), 180-‐95 121 Rome, Clouds in the Thirties, vol. 2, op. cit., 38 et seq. 122 “Le Canada est le pays des Canadiens et non des Juifs”, 123 “Québec livré aux Juifs”
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antisemitic outrages contained on a weekly basis in the Arcand/Ménard press. While they received assurances from Taschereau that the government had the matter in hand, Arcand continued to attack. Some members of the Jewish community began to consider a repeat of the earlier Quebec City experience and contemplated legal action to end the hate campaign.124 While the Jewish communities waited patiently for government intervention on their behalf, le Goglu and le Miroir began to up the stakes by combining their calls for a boycott of all Jewish businesses with headlines throughout the early part of 1932 in particular indicating to their readers that “Jews Are Murderers”.125 These stark declarations of ritual murder were accompanied by textual support “proving” Jewish killing of Christian children, and cartoons featuring a caricature of a “rabbi” slitting the throat of Simon of Trent. In its edition of 22 July 1932, le Goglu personalized the accusation, attacking Montreal Alderman Joseph Schubert. Schubert, a leading proponent of a separate Jewish school system in the city, whom the newspaper continued to refer to as “Schwartz”, was alleged to have lost his head during a confrontation with Arcand at City Hall. He was “blood thirsty, like his blood-‐drinking brothers in Russia”.126 According to Arcand, Schwartz threatened
We will have his blood for Jewish Easter!127
ii) Juridical Defenses: Organized Jewish Attempts to Counter the Blood Libel Faced with such attacks, the powerful and influential Member of the National Assembly, Peter Bercovitch,128 together with the other Jewish member of the 124 “Montreal Jews Consider Court Action Against Anti-‐Semites”, JTA, 18 April 1930; Abraham M. Klein, “The Holy See versus Armand Lavergne”, Canadian Jewish Chronicle, 12 August 1932 125 “Les Juifs Sont des Assassins” 126 “Il était sanguinaire, comme ses frères les buveurs de sang de Russie”. 127 “Nous aurons son sang pour la Pâque juive!” 128 Peter Bercovitch, the son of Romanian immigrant parents, was born in Montreal in 1879. He graduated in law with degrees from McGill and Laval
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legislature, Joseph Cohen,129 attempted to introduce a bill which would have granted the province’s courts the power to issue injunctions to prevent the press publishing scurrilous and defamatory attacks against identifiable groups.130 Bercovitch insisted that the bill sought to introduce only injunctive relief in such cases and no award of damages would be possible under the statute.131 § 2 provided The repeated publication of a defamatory libel, without legal justification or excuse, against any nationality, race, or creed, likely to expose persons belonging to such nationality or race or professing such creed, to hatred, Universities. He was thus at home in both of Montreal’s and Quebec’s linguistic worlds. He was named King’s Counsel in 1911, and at the time he was the youngest lawyer in Canada to gain that title. Most significantly, he became the first Jew to be elected to, and take his seat in, the Quebec Legislative Assembly in 1916. In 1923 he was the only Liberal to maintain his seat on the Island of Montreal. Throughout his career, he represented the interests of Montreal’s Jewish communities, ensuring the passage of legislation to validate Jewish marriages and to permit all rabbis in the Jewish communities to maintain registers of civil status, a right already granted to other denominations in the province, but only to some Jewish congregations and to rabbis who were British subjects. “Peter Bercovitch”, in Arthur Daniel Hart, op. cit., The Jew in Canada, 381. See generally the excellent study by Geneviève Richer, under the direction of Pierre Anctil, “Intervenir en faveur de la justice sociale et des droits de la minorité juive: La carrière politique de Peter Bercovitch à l’assemblée legislative du Québec, 1916-‐1938”, MA Thesis, Université d’Ottawa, 2007; Jean-‐Jacques Lefebvre and Louis-‐Philippe Gagnon, “Nos Disparus-‐ Peter Bercovitch”, 3 Revue du Barreau 101-‐02, (1943) 129 Joseph Cohen (1891-‐1973) was born in Russia but moved to Montreal as a young child. A graduate of Dufferin School and McGill and Laval Universities in law, he clerked with S.W. (Sam) Jacobs and was admitted to the Bar in 1913 and named King’s Counsel in 1926. He was defeated as a Liberal candidate for St. Laurent in 1923, but won the seat in that riding in 1927, and was re-‐elected in 1931 and 1935. He was therefore the second Jewish member in 1930 and 1931 when this part of the “Jewish School Question” reached its climax. He was a noted criminal lawyer and taught criminal law at McGill from 1952 to 1961. He was president of the Quebec Criminology Society from 1965-‐1969 http://www.assnat.qc.ca/fr/deputes/cohen-‐joseph-‐2617/biographie.html 130 The full story of attempts to combat “group defamation” in Quebec and elsewhere in Canada through legislative action, see David Rome, Clouds in the Thirties, vol. 2, op. cit., 39 et seq. 131 Les débats de l’Assemblée legislative, 18e legislature 1re session, 29 January 1932
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contempt or ridicule, shall give rise, without prejudice to any other recourse, in favour of any person belonging to such nationality or race or professing such creed, to the remedies hereinafter provided.132 § 3 provided for injunctive relief, both temporary and permanent, and offered amendments to the relevant articles of the Code of Civil Procedure to permit the remedy. Original support came from Prime Minister Taschereau, who had personal experience of the difficulties facing plaintiffs under Quebec law in such cases. In his speech urging passage of the bill, Joseph Cohen, echoing Sam Jacobs plea to the Court 20 years earlier, repeated to his French Canadian colleagues in the National Assembly the history of Quebec as the seat of Jewish emancipation and equality in the British Empire with the Papineau statute of 1832. One hundred years later, he said, the “inherent sense of justice and fair play” of the French-‐Canadian people was being put to the test by the antisemitic ravings of a minority who pretended to speak for the nation. The blood libel had no place in Quebec, because it was the home of Jewish freedom in the British Empire. The proposed measure was not an attack on liberty, or on press freedom, it was a precise and surgical strike aimed at those who besmirched the nation and betrayed its best principles under the color of “free speech”.133 Without doubt, it is possible to criticize the Bercovitch Bill in terms of its juridification of the issues at hand in the ritual murder accusation and other antisemitic propaganda. The Bill by necessity is highly legalistic, offering defenses of “legal justification” and “excuse”, opening the door for substantive argument about, for example, the “truth” of the blood libel. But more important I believe is the fact that Quebec Jews continued to turn both to law and to broader political fora and constitutive discourses in their struggle against the hate-‐ mongering Arcand/Ménard press. As Cohen’s speech demonstrates, they did so with full awareness of the hermeneutic and narrative demands of asserting a 132 An Act respecting the publication of defamatory libel, 1st session, 18th Legislature, 22 Geo. V, 1931-‐31 133 “Complete Text of Speech Delivered by Joseph Cohen, K.C. M.L.A. in the Quebec Legislature on the Bercovitch Bill”, Canadian Jewish Chronicle, 26 February 1932
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jugular, foundational, constitutional argument about emancipation and equality within the Quebec polity. Indeed, the Bill, although clearly informed by the blood libel and other attacks against Jews from Arcand and Ménard, was written in broad terms, applying to all races, nationalities, and creeds equally. At the level of signifying its content, the Bill was situated as one that was meant to address issues of general, national interest. Of course, everyone was fully aware of the “Jewish” background of the proposal and this was enough to sink it. Powerful attacks from the “liberal” and from the Roman Catholic press, which forewarned of both financial disaster from any injunction preventing publication, and a more principled support for the essential value of freedom of speech, meant that the Bercovitch Bill was doomed.134 Taschereau saw the writing on the wall and withdrew the proposed legislation. For the first time in public debate in Quebec, mainstream politicians, including many within the ruling Liberal Party, had directly and overtly aligned themselves with the ultramontane press, as embodied in Le Goglu and Le Miroir, and had begun to give voice to antisemitism in the legislative precinct.135 This attempt to gain popular, legislatively mandated support for the Jewish struggle against the blood libel and other manifestations of antisemitic hatred, fell to the more powerful discursive synergies of press freedom and a virulent anti-‐Jewish Roman Catholic press.136 Indeed, Lita-‐Rose Betcherman in her study of fascism in Canada argues that the Bercovitch Bill and the alliances that were formed in opposition thereto altered public discourse in Quebec. She records a distinct antisemitic turn even in the “mainstream” press after the defeat of the group defamation bill.137 iii) The (Re)Turn to Litigation: The Blood Libel and the Quebec Courts Part Deux 134 For a more detailed discussion, see Rome, Clouds in the Thirties, vol. 2, op. cit., 42 et seq. 135 “Editorial Comment-‐ The Deputy Speaker: Full of Sound and Fury”, Canadian Jewish Chronicle, 29 July 1932 136 “Move Against Quebec’s Anti-‐Semitic Journals Withdrawn by Premier”, JTA, 1933 137 The Swastika and the Maple Leaf: Fascist Movements in Canada in the Thirties, (Toronto: Fitzhenry & Whiteside, 1975), 13 et seq.
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The Jews of Montreal had come to the end of their tether. The provincial government, always seeking ways of compromise with the still powerful Roman Catholic Church, would not aid the Jewish communities of the city. Some elements among the Jewish population thought that the most effective, or least dangerous, course of action was inaction and silence. By simply ignoring the antisemites, they felt, they would be denied any broader purchase for their narrative. Engaging with them, or bringing a court action against Arcand and Ménard, might give rise to the propagandists being able to cloak themselves in martyrs’ clothes and to buttress their claims of a Jewish conspiracy against right-‐ thinking Quebecers. Others objected to any legal engagement not on principled terms, but for the deeply pragmatic reason, again echoing concerns voiced in the Quebec City case, that it would be impossible to find a Quebec judge, let alone a jury, who would find against Arcand and Ménard. Finally, a significant group refused to be cowed into silence in the face of accusations of murderous ritual practices. They opted, as had their co-‐religionists in Quebec City twenty years earlier, to test Arcand and Ménard’s ritual murder accusations and other calumnies before the courts. The story of the ritual murder accusation in Quebec would once more take a juridical turn. Mr. E. Abugov, a fruit seller from suburban Lachine, who claimed that his business had been forced to close after a gang of antisemites had thrown stones through his windows, as a result of what had been published in le Miroir and le Goglu, sought damages and injunctive relief against the newspapers.138 Once again, the Jewish citizens of Quebec who sought redress before the courts of the province were fully aware of the dangers and limitations inherent in adopting the juridical approach in the struggle against antisemitic propaganda and the ritual murder accusation. They obviously remembered the history and the “failure” of the pursuit of Plamondon. But despite the enormous progress that the Jewish communities of Montreal had achieved in socio-‐economic terms, and despite the presence of Peter Bercovitch and Joseph Cohen at heart of the 138 Israel Medres, Between the Wars: Canadian Jews in Transition, (Vivian Felsen trans), (Montreal: Véhicule Press, 2003), 73 et seq.
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governing Liberal Party in the National Assembly, they could not concretize politically their aim of containing the virulent antisemitism that was taking center stage in Quebec public and political discourse. They turned to Joseph Cohen, not as an elected Member of the Assembly, but as a leading member of the city’s Bar to take Abugov’s case. On 13 September 1932, Desaulniers J. of the Superior Court rendered his judgment in the case of Abugov v. Ménard.139 The judge began his reasons with an explicit frontal attack on the attitude and actions of the defendant. The Court had requested that Ménard stop publishing anti-‐Jewish material during the hearing and in the period before the decision was rendered, but the publisher had ignored the Court’s instructions. The Court then proceeded to assail the declarations and writings published in the newspapers. Most significantly, and in distinct contrast with the approaches of narrow legalism adopted by both the trial judge and appellate justices in the Plamondon litigation, Desaulniers went to the heart of the socio-‐political narrative in his condemnation of the accusations published by Arcand and Ménard. Accusing Jews of being thieves and murderers was “contrary to common sense”.140 Moreover, in a direct attack on what the defendants asserted, the judge stated that such accusations could never be aired for the benefit of French Canadian society. French Canadians were themselves a minority in the country as a whole, and the peaceable enjoyment of their own rights and freedoms was dependent on both the good will of the majority population and on the fundamental protections offered under the rule of law. Arcand and Ménard endangered the best of French Canadian culture and tradition by giving voice to irrational and unsupported hatred of the Jewish minority.141
139 Cour Supérieure, Montréal, No. 106465 140 “…au mépris du bon sens”. 141 Typescript Judgment, 2
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The Jews are murderers writes le Miroir. Jews, under the requirements of their religious practices are murderers to the full reality and all the brutality of the term.142 For Desaulniers J., a jurist could only have one reaction to such vitriol. “Simply repeating such words causes one to shudder”.143 Yet he went on, recounting claims and statements in the newspapers to the effect that the historical truth of ritual murder had to cause readers to be on the watch for such killings during “the Jewish Easter”. Surely, the judge added, plaintiff Abugov was fully justified in such circumstances to fear the imminent outbreak of mob violence following Ménard’s persistence in publishing these ritual murder accusations.144 This was the clearest statement in the entire history of Quebec antisemitism from a court denouncing antisemitic agitation among ultramontane elements. Desaulniers J. condemned in no uncertain terms the invocation of the ritual murder accusation and underscored the real danger to Jews that could clearly result from such attacks. He did so in terms of broad, and “jugular”, in Weisberg’s sense, assertions about rights of minority groups to full equality in Canada. He also did so by offering a liberal Roman Catholic, Canadien counter-‐narrative of the Church’s true theological position, and added a new interpretive frame for the proper egalitarian understanding of the history of the identity of the people of Quebec. Quebec and French-‐Canadian national identity were grounded in, and dependent upon, a broad understanding of inclusive equality, not the hate-‐filled ideology of the increasingly fascisant discourse being articulated by Arcand.145 A Roman Catholic Francophone judge was the first real judicial voice among the elite of the majority population to refute ritual murder accusations in terms of a constitutional, or better still, a constitutive narrative of national identity and belonging. 142 “Les juifs sont des assassins écrit le Miroir. Les juifs en ce qui concerne la nécessité de leurs pratiques religieuses sont des assassins dans toute la vérité et toute la brutalité du mot”. 143 “On frémit rien qu’à répéter les pareils mots” 144 Ibid., 3 145 See Hugues Théorêt, Les Chemises Bleues: Adrien Arcand, journaliste antisémite canadien-‐français, (Sillery PQ: Septentrion, 2012)
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But before one praises the juridical turn as evidencing a progressive, liberal death knell for the blood libel in Quebec, the final sections of Desaulniers’ decision are key. He highlighted here that he had shown so much care and attention to denouncing Ménard and the blood libel because he wanted to underscore and “deplore” (déplorer) the fact that Quebec law did not provide him as a judge with the tools necessary to restrain such hateful discourse. The provincial legislature had refused to adopt statutory measures permitting interim injunctive in cases such as this. Nothing else could be found in the province’s Code of Civil Procedure that would permit the judge to grant the relief being sought. If the legislature did not deem it wise to provide such a remedy, and had specifically refused to do so recently, the judge was powerless to act.146 We are confronted once more with a situation in which the juridical turn showed itself to be more than open to the sociological and political exploration of the unmasked ideologies behind the ritual murder accusation. At the same time, the ultimate “victory” of the aggrieved party was denied because, at the final juridical hurdle, the court felt that, for all its repugnance of the defendant’s writings, it was incompetent in the technical sense. It could not offer the relief sought. Instead it had to resort to a kind of Calabresian dialog between court and legislature.147 Finally it was left with no other solution, which was no solution at all, than to insist that the jugular narrative of true Canadien identity might prove persuasive. But I hope, because reflection will lead him surely to more Christian feelings, that the defendant will understand for himself the irreparable harm that he is causing to his race before public opinion on this continent.148 146 Typescript Judgment, 4 147 Guido Calabresi, A Common Law for the Age of Statutes, (Cambridge MA: Harvard University Press, 1985) 148 Ibid. “Mais j’espère, car la réflexion l’amènera sûrement à des sentiments plus chrétiens, que l’intimé comprendra de lui-‐même le tort irréparable qu’il cause à sa race devant l’opinion publique de ce continent.”
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Desaulniers J.’s heartfelt wish for a Habermasian moment of communicative rationality was as ineffective and futile as the juridical turn itself had been in putting an end to ritual murder accusations by the right-‐wing Roman Catholic press in Quebec. Blood libels continued to excite the passions of Arcand and his acolytes. Students from the Church-‐dominated Université de Montréal paraded through city streets, carrying signs urging “Death to the Jews” (Mort aux Juifs).149 Throughout the 1930s, in Montreal in particular, ultramontane Roman Catholic antisemitism became more and more Nazified as Arcand was himself increasingly radicalized. Public debate often degenerated into diatribes between supporters of the populist mayor of Montreal, Camillien Houde, who called for increasing vigilance against the Jewish menace, and Arcand’s devotees who attacked Houde for being soft on the Jewish question.150 These crude and violent embodiments of antisemitism, including occasional passing references to ritual murder, would only come to an end in Quebec with the outbreak of war. Arcand, after he had waged a clandestine propaganda campaign for some months, was finally arrested and interned under federal emergency legislation in May 1940.151 Camillien Houde was also arrested and held without trial until 1944 as a result of his continuing public campaign against conscription. This was the only juridical turn which could put an end to the blood libel in Quebec. 5. The Blood Libel on the Canadian Prairies: A Successful Juridical Turn? As early as 1924, Sam Jacobs had lobbied his federal Parliamentary colleagues to take steps to combat antisemitic propaganda by prohibiting several Montreal 149 Documents and correspondence relating to these and other manifestations of a murderous rhetoric within Quebec antisemitism can be found at CJC Archives, ZA 1933 32/23 and ZA 1934; For an intriguing case of Arcand’s influence among certain elements within the Francophone Roman Catholic community across the Gatineau River in the national capital Ottawa, and another prosecution for libel (not involving ritual murder accusations) brought by a Jewish plaintiff, see Raymond Ouimet, L’affaire Tissot: Campagne antisémite en Outaouais, (Montpellier PQ: Écrits des Hautes-‐Terres, 2006) 150 See Rome, Clouds in the Thirties and Théorêt, Les Chemises Bleues, op.cit. 151 Théorêt, Les Chemises Bleues, 233 et seq..
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publications from being sent through the mails. His efforts were unsuccessful.152 Following the failures of the Bercovitch Bill in the Quebec National Assembly and the negative outcome in Abugov’s suit against Ménard, leading legal lights in the Canadian Jewish Congress in Montreal again sought help at the federal level. Some thought was given to pursuing criminal actions against Arcand and Ménard under the seditious libel provisions (§132) of the Criminal Code, but such ideas were soon abandoned.153 Nathan Gordon K. C., a leading member of the Montreal Bar,154 drafted proposed amendments to the federal Criminal Code sections dealing with blasphemous libel, which would have criminalized …any matter… which subject or expose any person of group of persons to prejudice, shame, hatred, ridicule, injury, insults or obloquy by reason of the fact that such person or group of persons belong to or purport to be of any particular race, color, or religion.155 Once more, “this proved a futile exercise.”156 Similar efforts by Jewish groups and legislators in Ontario likewise met with rejection from both government and opposition benches and were ended without further ado.157 In Britain, the Board of Deputies commissioned a lengthy study of the possibility of bringing successful legal actions to stop the spread of fascist antisemitism.158 Efforts to 152 National Archives of Canada, MG26-‐G, MG 31-‐E46, Samuel W. Jacobs Papers, 14 April 1924 153 CJC, ZA 1933 154 Nathan Gordon (1882-‐1938) came to Montreal in 1906 as Rabbi of the Reform Congregation, Temple Emanu-‐El. In 1916 he left his position to take up the practice of law. He was originally associated with the firm of Peter Bercovitch but left to become a Prosecutor for the City of Montreal. He succeeded Maxwell Goldstein as President of Temple Emanu-‐el, a post he held until his death. He was active in various charities and became involved in the school question. “Nathan Gordon, M.A., B.C.L., Montreal” in Arthur Daniel Hart, The Jew in Canada, op. cit., 125 155 CJC, ZA 1934 5/37, Letter of 3 May 1934 and attached text, from Nathan Gordon to Sam Jacobs 156 Rome, Clouds in the Thirties, op. cit., 59-‐60 157 Ibid., 52-‐53; Stephen Speisman, “Antisemitism in Ontario: The Twentieth Century”, in Alan Davies (ed), Antisemitism in Canada, op. cit., 113-‐33 158 George J. Webber, “Memorandum on the Law of Libel Against Communities”, CJC, ZA 1934 4/26
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stop the publication of the blood libel accusation would only succeed in England when the state brought actions against prominent British leader of the Imperial Fascist League, Arnold Leese, under public order legislation. 159 But there is one Canadian example of successful legislative and judicial intervention in the battle against antisemitic propaganda and the blood libel in particular. Throughout the late 1920s and early 1930s, in western Canada, populist, fascistic groups began to emerge on the political scene with an increasing public presence.160 Significant, well-‐attended demonstrations and a certain degree of electoral success in some parts of the Prairies alerted local Jewish communities to an imminent threat. In Manitoba, with its significant Jewish population, especially in the capital Winnipeg, local groups sprang into action.161 In 1934, Marcus Hyman, a lawyer, the first Jew appointed to the faculty of the University of Manitoba School of Law, and member of the provincial legislature, introduced legislation similar to that presented to the Quebec Legislative Assembly by Peter Bercovitch. He was, as Bercovitch had been, deliberately careful to limit the available remedy to injunctive relief on order to highlight that he “was not out to obtain any monetary advantage to any individual through a libel against the race.”162 An Act to amend “The Libel Act” provided 159 National Archives, Arnold Leese File, KV 2/1365; My Irrelevant Defense: Being Meditations Inside Gaol and Out on Jewish Ritual Murder, (London: I.F.L. Publishing, 1938); For an historical precedent, The King v Osborne, 25 ER 584; (1732) 25 Kel. W. 230 160 See generally, Janine Stingel, Social Discredit: Anti-‐Semitism, Social Credit and
the Jewish Response, (Montreal & Kingston, London, Ithaca: McGill-‐Queen’s University Press, 2000); Martin Robin, Shades of Right: Nativist and Fascist Politics in Canada 1920-‐1940, (Toronto and Buffalo: University of Toronto Press, 1992) and Betcherman, The Swastika and the Maple Leaf, op. cit. 161 See Allan Levine, Coming of Age: A History of the Jewish People of Manitoba, (Winnipeg: Heartland, 2009). The Jewish population of Winnipeg had grown from 14, 449 (8% of the total municipal population) out of 16.669 Jews in the province in 1921 to 17, 236 (7.9% of the city’s total) out of Manitoba’s 19,341 Jews. Rosenberg, Canada’s Jews, op. cit., 20, Table 10 and 34, Table 21 162 CJC ZA 1934, 5/37 Letter from Marcus Hyman to H. M. Caiserman, Canadian Jewish Congress, 1934
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The publication of a libel against a race or creed likely to expose persons belonging to the race or professing the creed to hatred, contempt or ridicule, and tending to raise unrest or disorder among the people, shall entitle a person belonging to the race or creed to sue for an injunction…163 Unlike the action instituted by Ortenberg and Lazarovitz in Quebec City 24 years earlier, and unlike the Bercovitch Bill itself, the Manitoba Act was deliberately drafted and conceived in collective and public terms. Article 1053 of the Civil Code was about negligence/fault and damage caused to another. The Quebec Courts had struggled to narrow the discursive horizon of the facts that emerged from Plamondon’s speech and pamphlet into the individualizing language of delict. They were able to do so only by offering a limited reading of the “damage” caused to the Jewish merchants of Quebec, or by drawing restrictively on existing jurisprudence about groups small enough to be identified “individually”. In collective, community terms outside the particular environment of the few Jews in Quebec City, the Quebec Courts had virtually removed any recourse under civil law, droit commun principles. With the holding in Abugov v. Ménard, and the rejection of the Bercovitch Bill, injunctive relief was also reduced to a virtual impossibility when the narrative of ultramontane and fascist antisemitism was rendered in general terms about “the Jews”. Hyman’s statutory language arguably took a different turn. In addition to ensuring that only injunctive relief was available, the statute, like the Bercovitch Bill, addressed race or creed as matters of collective identity. But it made a significant addition in terms of the language used, and therefore of the public political narrative informing the legislation. It added the idea that the speech targeted by the law was that which might be seen to be “tending to raise unrest or disorder among the people”. It was in fact not merely the harm caused to the individual or group by race or creed that was discursively deployed in the Manitoba law. Instead, the harm was also harm to Manitoba society more broadly understood. Public “unrest or disorder” was deployed as the likely 163 §1, Acts of the Legislature of the Province of Manitoba, 1934, c. 23
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consequence of unrestrained antisemitic attacks, including accusations of ritual murder. While this was in its most narrow reading another instantiation of the juridical, with its concern over true/false questions of “libel”, more broadly understood, it was the concretization of the constitutive position that antisemitic attacks were in fact an injury to the society as a whole. The danger to Jews was invoked here as but one embodiment of a more general threat to public peace and the security of all Manitobans. Indeed, Hyman’s bill received the full support of the government, the main opposition party, and the mainstream Manitoba press. There seems to be little doubt that the support for such a measure was in no small part due to concerns about public safety which had arisen in the province following several large scale demonstrations organized by local fascist groups and consequent violent altercations with anti-‐fascist groups.164 ii) The Manitoba Courts, the Jew and the Fascist: Legal Success? As far as I have been able to determine, the provisions of Hyman’s statute were invoked on only one occasion. In October 1934, William Tobias, a lawyer, a former member of the provincial legislature, a decorated war hero from Winnipeg, and a Jew, sought an injunction against the author and the publishers of various antisemitic ravings.165 William Whittaker, a British-‐born former colonial police officer, was the editor of, and chief propagandist for, The Canadian Nationalist.166 Volume 2, number 6, of that newspaper, it was alleged in the statement of claim, contained an article entitled “The Murdering Jew: Jewish Ritual Murder”. The article was written in support of accounts of Jews killing Christian children published in Der Stürmer, and contained all of the traditional elements of the ritual murder accusation. This was combined with attacks on the all-‐powerful Jewish international conspiracy which controlled efforts to deflect attention from the historical reality of the murder of Christian children by Jews. 164 Robin, Shades of Right, op. cit., 197 et seq. 165 William Tobias v Herman H. Neufeld and Anna K. Neufeld, carrying on business under the firm name and style of Rundschau Publishing and William Whittaker, Court of King’s Bench, 535/34, Winnipeg, 30 October 1934, Statement of Claim 166 For more detail of Whittaker’s political career, see Robin, Shades of Right, op. cit., 199 et seq. and Betcherman, The Swastika and the Maple Leaf, op. cit., 65 et seq.
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The same issue of The Canadian Nationalist contained another article entitled ‘The Night of Murder. The Secret of the Jewish Purim Festival is Revealed”. According to the plaintiff’s statement of claim, Whittaker wrote there that Many a murder that could not be solved is nothing but a victim murdered for the Purim festival. … There are Jews today who butcher their victims in identically the same manner in which their ancestors did, in the night of Purim.167 Whittaker’s political appeal to, and his invocation of, ritual murder accusations carried an intriguing conflict at the heart of his fascist and increasingly Nazi ideology. Like most other Canadian far right groups of the time, and as evidenced in the chosen signifier, The Canadian Nationalist, his primary ideology was nativist and informed by an idealization of Canada as a part of the white British Empire. Additionally, however, his early admiration of fascism led him to create an Italian branch of his party, aimed at capturing the support of Italian immigrant communities, many of whom supported the Mussolini regime.168 Unlike the Ku Klux Klan and a nativism in America that was dependent on a vision of the country as “Protestant”, Canadian fascism at the time welcomed and encouraged Roman Catholic participation. At the same time, his appeal to the blood libel was most clearly targeted at other European immigrant communities in Manitoba, German Mennonites in particular, among whom his party had some early success, and Poles and Ukrainians, who had come from cultures in which the ritual murder accusation had a certain historical purchase. The Manitoba blood libel sought to combine nativist antisemitic feeling with the cultural biases of parts of the European immigrant communities. On 30 November, one of the defendants, Anna Neufeld, wrote to Tobias apologizing for the publication of “a libel on the Jewish race”. These statements 167 Ibid., 4 and 5 168 Filippo Salvatore, Fascism and the Italians of Montreal: An Oral History 1922-‐ 1945, (Toronto: Guernica, 1998)
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were contrary to the teachings of the Mennonite Church of which she was an active member. She informed Tobias that she had instructed her lawyer to appear before the Court and to offer her unreserved apology, along with her undertaking and assurance that the Rundschau Publishing concern would never have anything to do with the publication of such libels.169 Given the clear history of Mennonite complicity with Whittaker’s party, and the publishing company’s early and vocal support of the changes being wrought by Hitler in the German homeland, one might meet the fulsome apology from the Rundschau representative with some skepticism. Whittaker the Nazi was unsurprisingly not so accommodating. His statement of defense was a simple denial of the plaintiff’s accusations, including that he had anything at all to do with The Canadian Nationalist. (§2) He further denied that the Neufelds even carried on printing business or had ever printed the newspaper. (§3) He also denied that Tobias was a Jew. (§ 4) He refused to recognize that he had written either of the two articles repeating the ritual murder accusation. (§§ 5 and 6), but also asserted in the alternative that … if he did write, or cause to be written or published any of the words complained of, which the defendant Whittaker does not admit but deny (sic), the same were privileged and of great public interest and that the same are true. (§ 5)170 The record of the examination on discovery of Whittaker is equally (un)enlightening.171 He refused, on advice of counsel, to answer questions about his occupation as publisher or his connection with The Canadian Nationalist.172 When shown a copy of the newspaper, he baldly asserted that he had never seen a newspaper like that.173 When pressed to explain his claim of privilege, 169 CJC, Tobias vs Neufeld File, 1934 170 Statement of Defence, 21 November 1934 171 Examination of William Whittaker, 30 December 1934 172 Questions 3, 4, 5 and 6 173 Questions 13, 14, 15, 16
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including the assertion that the statements about Jewish ritual murder were true, he again refused to answer on advice of counsel.174 Whittaker’s refusals did not, however, allow him to prevail. On 13 February 1935, Mr. Justice Montague of the Manitoba Court of King’s Bench ordered that Whittaker and his servants and agents … be perpetually restrained from further continuing writing, printing or causing to be printed, circulating, distributing or otherwise causing to be printed, circulating, distributing or otherwise publishing the libel on the Jewish race and those professing the Jewish creed contained in the issue of The Canadian Nationalist, volume 2, Number 6 referred to in the Statement of Claim or any similar libels injuriously effecting those belonging to the race or professing the Jewish creed. Whittaker battled on. At the time, Fascist circles in Canada and in Manitoba were riven with internal battles and divisions. Whittaker reluctantly agreed to join with Arcand’s National Unity Party, although he continued to express doubts and concerns about Arcand’s Quebec-‐centric policies and the effects such a focus was having on efforts to build a pan-‐Canadian Fascist organization.175 He died of a stroke in 1938. While fascist and Nazi groups continued to be active for another year on the prairies, their membership suffered a rapid decline. As the clouds of war grew over Europe, it became clear to many Canadians that the visions of “nation” and “Empire” offered by the various far right groups, whose points of reference were Mussolini and Hitler, did not reflect mainstream ideas of loyalty to the British Crown or to embody some acceptable ideal of “Canada”. Opposition in legislatures, in the press, and on the streets grew whenever any fascist political group raised its head. The outbreak of war in 1939 and the introduction of emergency internment powers spelled the end of the already weakened Canadian Nationalists. 174 Questions 50-‐55. 175 Théorêt, Les Chemises Bleues, op. cit.
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6. Conclusion It is perhaps difficult to offer any kind of synthetic overview of the cases examined in this paper. All four instances deal with ritual murder allegations levied against Jews. Each evidences what Albert S. Lindemann again describes as Jews who “fought back against their tormentors and exercised power in ways that are little appreciated”.176 In the four cases, Jews invoked legal discourse and in three relied upon the courts for relief against the libelous attacks of antisemites. In the fourth, the Massena incident, they were able to muster both public opinion and the political and quasi-‐judicial powers of the Governor and the State Police disciplinary apparatus to combat the ritual murder accusation. The Canadian cases each involved broad attacks against Jewish communities with the dissemination and repetition of traditional charges of Jewish murders of Christian children. There was one isolated accusation against Alderman Schubert in Montreal where he was alleged to have threatened Arcand with ritual murder, but generally speaking the Canadian cases, unlike their European counterparts, did not involve any contemporaneous disappearances of a Christian child. The Massena case was marked by an “actual” disappearance as the immediate causal event that gave birth to the evocation of the blood libel, but as we know, that “disappearance” was short-‐lived. At the same time, the four instances also evidence important and relevant contextual differences. The Quebec City and Montreal accusations and affairs took place in the context of Quebec Roman Catholic nationalism, informed by a significant and powerful ultramontane ideology. The Arcand/Ménard case twenty years after the Plamondon affair in Quebec City also incorporated a nascent fascisant ideology, which blended European political antisemitism with the extant French Canadian variant. The Manitoba case of The Canadian Nationalist grew out of the powerful rhetoric of fascism, National Socialism, and some pre-‐existing nativist ideology. The Massena incident in its first manifestation, at a Greek restaurant in the town, had its “origins” in Greek Orthodox national mythologies of the mysterious and dangerous foreign Jew, 176 The Jew Accused, op. cit., 3
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which owed much to historic collective narratives of Jewish influence and agency on behalf of the hated Ottomans. It then fell into the fertile soil of ignorant officials and Klan antisemitism. In New York State at the time, Al Smith’s liberal Catholicism, and the powerful interventions of Louis Marshall and Stephen Wise, countered the nativist element. I am however not suggesting that the cases have nothing in common, or even that these distinguishing elements are in any way decisive to an overview. Studies of “modern” European outbreaks of the ritual murder accusation will also reveal difficult and complex circumstances of national identity, of the place of “Jews” in those discursive constructions of the “nation”.177 Such complex historical analyses, which are necessary for a deep and thorough ethical understanding of the local manifestations of the blood libel, are not, and could never be, capable of overriding the dominant commonality of the ritual murder accusation. The four cases outlined in this paper merely examine different examples of the fertile North American soil for antisemitism in the first 40 years of the 20th century. For law and lawyers, the cases are perhaps instructive in a more restricted sense. In Quebec for example, Ortenberg v. Plamondon has served both a a narrow, positivist precedent, and as an irony-‐filled touchstone for Québécois national legal identity. Recent case in law in Quebec has not only confirmed the continuing relevance of Ortenberg v. Plamondon as a matter of substantive law, but on a procedural level, the Quebec City case has meant that it is possible to pursue a class action for defamation in Quebec. A Montreal talkback radio host unleashed a series of vicious attacks on Arab and Creole-‐speaking (Haitian) taxi drivers in the city. The Quebec courts, over the objections of the defendant, permitted the filing of a class action lawsuit by the taxi drivers, who constituted,
177 By way of example, see Robert Nemes, “Hungary’s Antisemitic Provinces: Violence and Ritual Murder in the 1880s”, 66 Slavic Review 20-‐44 (2007); Andrea Petö, “About the Narratives of a Blood Libel Case in Post-‐Shoah Hungary”, in Louise O. Vasvári and Steven Tötösy de Zepetnek, eds), Comparative Central European Holocaust Studies, (West Lafayette, IN: Purdue University Press, 2009), 40-‐52; Hillel J. Kieval, “ Death and the Nation: Ritual Murder as Political Discourse in Czech Lands”, 10 Jewish History 75-‐91, (1996)
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like the Jews of Quebec City in 1910, a limited and identifiable group among all licensed taxi drivers in the city.178 Ortenberg v. Plamondon is also cited in support of a broader assertion that the province’s civil law system is more flexible and more open to constitutionalized discourses about religious freedom that can emerge in the area of delict, than the remedial conservatism of common law tort. Mr. Justice Louis Lebel, of the Supreme Court of Canada, has invoked precisely this idea, with the Quebec City case as support and as an “eloquent example… of the imaginative use of the private law civil responsibility rules to ensure the juridical usefulness of fundamental freedoms”.179 What is interesting here, I would argue, is not the substantive and procedural heritage of Ortenberg v. Plamondon. It should be obvious that the limits of applicability in such a narrowly drawn decision will also always be strict. Instead, I note that the invocation of Quebec difference of which Mr. Justice Lebel writes in circumstances in which the “Jewish” case is invoked as a distinctly “national” sign of judicial distinctiveness in the protection of civil liberties is either an intriguing indication of the evolution of French Canadian, Canadien identity from the days of Notary Plamondon, or else it is a blissfully ironic embodiment of the lack of a careful historically informed juridical hermeneutic about the ability of Quebec’s Civil Code to offer adequate protection to the province’s Jewish populations. More broadly and in a comparative context, the Canadian cases do perhaps give an early indication that the law of that country on group defamation, or the 178 Malhab v. Métromédia CMR Montréal Inc. 2003 CarswellQue 14918; 226 D.L.R. (4th) 722; REJB 2003-‐3077; Société Radio-‐Canada et al c. Jean Djoufo, 2006 QCCA 130. For Ontario, see Elliott v Canadian Broadcasting Corp. 1995 CarswellOnt 360; 25 O.R. (3d) 302; in the UK, Knupffer v. London Express Newspapers, [1944 AC 116 179 “La protection des droits fondamentaux et la responsabilité civile”, 49 McGill LJ 231, (2004), 237. “… exemples éloquents de cet emploi imaginatif des règles du droit privé de la responsabilité pour assurer l’efficacité juridique des libertés fondamentaux”. Cf., Joseph Kary, “The Constitutionalization of Quebec Libel Law, 1848-‐2004”, 42 Osgoode Hall LJ 229-‐70, (2004) and Denis Buron, « Liberté d’expression et diffamation de collectivités: quand le droit à l’égalité s’exprime », 29 C. de D. 491-‐534, (1998)
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balance to be struck between free speech and the regulation of what we now call hate speech, would be dramatically different from the United States’ approach.180 At the time of course, the jurisprudence of the First Amendment was not as unequivocal as it now is,181 but the two countries have gone down distinctly different paths in invoking legal restrictions on speech aimed at identifiable ethnic, racial, or religious groups. In terms of legal, political, and social memory, in Canada at least, it would appear that the three blood libel cases have been largely forgotten. They may well form part of the background noise of vague institutional recall that informed historical Jewish communal involvement in the struggle for civil rights and civil liberties in Canada after World War Two, but is more likely that these battles were directly informed by the Holocaust as “limit event”. It is certainly the case that these struggles are today constructed and remembered with reference the aftermath of the Shoah.182 The Jewish community in Massena, like many similar communities throughout the United States and Canada, is in a state of significant and rapid decline. Nevertheless, the blood libel has more recently (re-‐)emerged as a site of local collective memory. A member of the “second generation” of the Massena Jewish community has published a novel fictionalizing the events of September 1928.183 The appearance of the book began a period of reckoning and of public memory of the blood libel.184 Despite the new wave of publicity that has surrounded the 180 MacFadyen, ‘”Nip The Noxious Growth in the Bud”, op. cit. 181 See e.g. David Reisman, ‘Democracy and Defamation-‐Control of Group Libel”, 42 Col L Rev 727-‐80, (1942) 182 See e.g., Carmela Patrias, “Socialists, Jews, and the 1947 Saskatchewan Bill of Rights”, 87 Canadian Historical Review 265-‐92, (2006); James W. St. G. Walker, “The “Jewish Phase” in the Movement for Racial Equality in Canada”, 34 Canadian Ethnic Studies 1-‐ 29, (2002); Irving Abella, “Jews, Human Rights, and the Making of a New Canada”, 11 Journal of the Canadian Historical Association 3-‐15 (2000) 183 Shirley Reva Vernick, The Blood Lie, (El Paso: Cinco Punto Press, 2011) 184 Julie Grant, “Massena’s history still tied to 1928 “blood libel” incident”, http://www.northcountrypublicradio.org/news/story/19305/20120214/mass ena-‐s-‐history-‐still-‐tied-‐to-‐1928-‐blood-‐libel-‐incident; Bob Beckstead, “SLU professor talks about 1928 Blood Libel incident in Massena”, 6 October 2012, http://www.watertowndailytimes.com/article/20121006/DCO01/710069976
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publication of the Vernick teen novel, and the efforts of the remaining Jews of Massena, together with local historians, the discourse around the New York state blood libel is clearly one that is merely corrective in its approach and aims. In other words, it seeks to place the ritual murder accusation back into the town’s and the region’s history. It is retrospective in tone and in content, as it seeks to fill in the historical silence with a recitation of a forgotten episode from the town’s past. There is little or any historical context, for example about the brief and powerful appearance of the Ku Klux Klan in the upstate region, let alone any attempt to explore any wider implications of the blood libel, or antisemitism, in current political and social discourse. Perhaps the Massena case is truly reflective of the current state of investigations into, and narratives about, the ritual murder/blood libel in its North American manifestations. Current attention on the broad question of the ritual murder accusation has clearly shifted to the Middle East, where blood libel has reemerged as part of the propaganda campaign targeting Israel, “Zionism”, and Jews. The libel reemerges occasionally in the west, as it did this year in the UK with debate over a cartoon appearing in the Sunday Times, in which Benjamin Netanyahu was pictured building a brick wall made up of the blood and limbs of Palestinians. But again it is the “Zionist” context which informs the issue and in which the accusation arises.185 It appears in a signifying chain of Israel/Zionism/Jews that may be slightly more complex as an ideological narrative than the rantings of Notary Plamondon, Adrien Arcand, or a Greek diner owner in 1928 Massena. Still, the fact that the cartoon appeared in the mainstream British newspaper on Holocaust Memorial Day raises deep and intriguing questions about the juxtaposition of the two “limit events” in the minds of the British elite,186 and, as Louis Marshall might have noted, about the
185 Jennifer Lipman, “Sunday Times editor explains ‘blood libel’ cartoon publication”, Jewish Chronicle, 28 January 2103; Josh Halliday, “Sunday Times denies antisemitism in Israeli election cartoon”, The Guardian, 28 January 2013; 186 Jennifer Lipman, “Sunday Times criticized for Israel Cartoon on Holocaust Memorial Day”, Jewish Chronicle, 27 January 2103; “Scarfe “regrets timing” of Sunday Times Netanyahu cartoon”, ibid., 28 January 2103
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idea of an appropriate apology in such circumstances.187 The “new antisemitism” is in fact the same old anti-‐Semitism, but the discursive matrix in which it appears as the “blood libel” is made more complex, or at least it manifests a different complexity, in the face of the actuality of Zionism. Hannah Johnson concludes her impressive study by reminding us that Ethical debates about justice and responsibility matter on their own, philosophical terms in this conversation.188 The debates that have been briefly highlighted in this paper underscore the centrality of “justice” and “responsibility” in these instances of the ritual murder accusation in North America, in all their contextual and historical commonalities and differences. They also signal the ways in which the juridical turn has both inherent strengths and weaknesses. What emerges from the four cases, in the not yet final analysis, is that the Jewish communities directly implicated in the libels turned to official, state institutions, both political and juridical, in their search not just for practical relief from the attacks to which they were being subjected, but for the reaffirmation of foundational, constitutional values of equality and belonging, which they sensed were at the heart of Jewish life in Canada and the United States. They confronted narrow, legal positivism, as well as social and political bias, manifested all too often in overt ideological discourses which sought to deny them full citizenship. What unites these apparently disparate instances of the blood libel in North America is this common recourse by the Jewish officials, lawyers, and representatives in all four cases, to the constitutional “jugular” arguments about equality, identity, and belonging. While the four cases offer mixed “results” in the narrow juridical sense of the positivist legal outcome, especially in the instances of Ortenberg v. Plamondon and Abugov v. Ménard, they all embodied and gave a concrete voice to a constitutive ideal of citizenship. I am not suggesting that the historical context in which these ideals 187 Lisa O’Carroll, “Sunday Times editor apologises over Benjamin Netanyahu cartoon”, The Guardian, 29 January 2013 188 Blood Libel, op. cit., 164
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were articulated gave rise even to univocal assertions of Jewish identity. Events in Massena belie any notion that even small Jewish communities, let alone those in the United States, were unified.189 The history of conflicts in Montreal between the assimilated and Anglophone Uptown group, and the Yiddish-‐speaking Downtowners, which were articulated throughout the 1920s and 1930s, including in debates over the Bercovitch Bill and the Abugov case, also offer sufficient evidence of the complexities of identity and citizenship even when “jugular” constitutional arguments were being presented against ritual murder accusations. We should recall both that the two Quebec cases ended in “defeat” for the Jewish plaintiffs, and that the Massena and Manitoba instances of the blood libel featured Jewish “victories”. The result of confronting ritual murder accusations by appealing to broad normative “jugular” values was not predetermined. While such assertions of equality took place judicial or quasi-‐judicial surroundings, they were, and they must always be, constitutive in the broader political and social sense. Vivian Curran, in her study of democracy’s self-‐destruction in Vichy France, reminds us that … the most important of all constitutions, the one written in the citizens’ minds, is ever renewable and ever destructible, recreated continuously, invested with inevitably transitory meanings that fluctuate with time and history, through the perpetual vagaries of individual and collective perception and sentiment.190 The four cases outlined here demonstrate, I believe, not just the contingency of constitutional values, their politically and socially dependent content at any given time and place, but also the consistent faith in the political, social, legal, and constitutive realities of life in the New World which Jewish immigrant communities in these different contexts demonstrated when faced with 189 Jonathan D. Sarna, “America Is Different?”, Midstream, February 1982, 63-‐64 190 “The Legalization of Racism in a Constitutional State: Democracy’s Suicide in Vichy France”, 50 Hastings LJ 1-‐96, (1998), 95
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narratives of ignorance and hatred. Their jugular oppositional rhetoric embodied a degree of agency and self-‐constitution that we forget at our own ethical peril when dealing with these examples of ritual murder accusations and blood libels. Quebec City, Montreal, Massena, and Winnipeg remind us of the historical complications and specificities of context, narrative complexities, and ethical dilemmas, that arise when the juridical turn occurs. We must also read these instances within a frame that takes account of the fact that (b)oth the constitutional subject and its identity are elusive and problematic as uncontroverted foundations and guideposts…191 Nonetheless, we might do well to heed in our confrontations with antisemitic discursive practices and ideologies, the constitutive ideals of equality articulated by Sam Jacobs, Joseph Cohen, Berel Brennglass, and William Tobias in their juridical confrontations with the ritual murder accusation.
191 Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community, (London and New York: Routledge, 2010), 17
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