Business Law Text and Exercises 8th

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 Answers to Issue Spotters,
Using Business Law,
Real-World Case Problems
& Ethical Questions

CHAPTER 8

CRIMINAL LAW AND CYBER CRIME

ANSWERS TO ISSUE SPOTTERS

1A. Without Jim’s permission, Lee signs Jim’s name to several checks that were issued
to Jim and then cashes them. Jim reports that the checks were stolen and receives
replacements. Has Lee committed forgery? Why or why not? Yes. Forgery is the fraudulent
making or altering of any writing that changes the legal liability of another. In some instances,
however, authorization to sign another’s name negates a charge of forgery.

2A. Carl appears on television talk shows touting a cure for AIDS that he knows is
fraudulent. He frequently mentions that he needs funds to make the cure widely available,
and donations pour into local television stations to be forwarded to Carl. Has Carl
committed a crime? If so, what? Yes. Federal law makes it a crime to use the mails, a
telegram, a telephone, radio, or television to defraud. Carl has committed a violation of federal
wire fraud statutes.

A-1

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A-2 APPENDIX A: ANSWERS TO END-OF-CHAPTER QUESTIONS

ANSWERS TO USING BUSINESS LAW

8–1A. Types of crimes
1. Carlos has suffered a form of larceny called picking pockets.
2. Carlos has committed larceny—the wrongful taking of another’s personal property
without breaking and entering another’s premises, and without the use, or threatened use, of
force.

8–2A. Theft
Roy has committed embezzlement. The crime of embezzlement is committed when a person
entrusted with another’s property or money fraudulently appropriates it. That Roy may have
intended to repay the “borrowed” funds is no defense (although an embezzler who returns what
has been taken may not be prosecuted because the owner may not wish to take the time to make
a complaint, give depositions, appear in court, and so on). Depending on how Roy engineered
the theft, he may have committed other crimes—forgery, larceny, or a computer crime, for
example.

ANSWERS TO REAL-WORLD CASE PROBLEMS

8–3A. White-collar crime
Yes. The acts committed by Matthew Simpson and the others, and described in this problem,
constitute wire and mail fraud. Federal law makes it a crime to devise any scheme that uses the
U.S. mail, commercial carriers (FedEx, UPS), or wire (telegraph, telephone, television, the
Internet, e-mail) with the intent to defraud the public.
Here, as stated in the facts, Simpson and his cohorts created and operated a series of
corporate entities to defraud telecommunications companies, creditors, credit reporting agencies,
and others. Through these entities, Simpson and the others used routing codes and spoofing
services to make long distance calls appear to be local. They stole other firms’ network capacity
and diverted payments to themselves. They leased goods and services without paying for them.
And they assumed false identities, addresses, and credit histories, and issued false bills, invoices,
financial statements, and credit references, in order to hide their association with their entities and
with each other. The “scheme” was to defraud telecommunications companies and other
members of the public to the perpetrators’ gain of a variety of goods and services. Wire services—
the Internet, and presumably phones and other qualifying services—were used to further the
scheme.
In the actual case on which this problem is based, a federal district court convicted
Simpson of participating in a wire and mail fraud conspiracy (and other crimes). On appeal, the
U.S. Court of Appeals for the Fifth Circuit affirmed the conviction.

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 CHAPTER 8: CRIMINAL LAW AND CYBER CRIME A-3

8–4A. Criminal liability

Yes. Green exhibited the required mental state to establish criminal liability. A wrongful mental
state (mens rea) is one of the elements typically required to establish criminal liability. The
required mental state, or intent, is indicated in an applicable statute or law. For example, for
murder, the required mental state is the intent to take another's life. A court can also find that the
required mental state is present when a defendant’s acts are reckless or criminally negligent. A
defendant is criminally reckless if he or she consciously disregards a substantial and unjustifiable
risk.
In this problem, Green was clearly aware of the danger to which he was exposing people
on the street below, but he did not indicate that he specifically intended to harm anyone. The risk
of death created by his conduct, however, was obvious. He must have known what was likely to
happen if a bottle or plate thrown from the height of twenty-six stories hit a pedestrian or the
windshield of an occupied motor vehicle on the street below. Despite his claim that he was
intoxicated, he was sufficiently aware to stop throwing things from the balcony when he saw police
in the area, and he later recalled what he had done and what had happened.
In the actual case on which this problem is based, after a jury trial, Green was convicted of
reckless endangerment. On appeal, a state intermediate appellate court affirmed the conviction,
based in part on the reasoning stated above.

8–5A. Search
Yes, a cross-gender strip search is unreasonable if there is no emergency—such as a riot or
natural disaster—to justify it. Whether a search is reasonable under the Fourth Amendment
requires balancing the need for the search against the invasion of personal rights that the search
entails.
Here, there was no emergency situation, and there was no apparent justification for
conducting a cross-gender strip search. In addition, the manner in which the search was
conducted seems unreasonable. A female officer performed the search while several male
officers watched, and one videotaped the search. There was no reason for the female officer to
conduct the search immediately rather than another officer whose gender was the same as
Byrd’s.
In the actual case on which this problem is based, the court held that the search performed
on Byrd was unreasonable and violated Byrd's rights under the Fourth Amendment to be free from
unreasonable searches.

8–6A. Embezzlement
Yes. When a person entrusted with another person’s money fraudulently appropriates it,
embezzlement occurs. Even if the money is not physically removed from the other’s possession
embezzlement occurs if a person has control over the other’s money and has the intent of
converting it to his or her own use.

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accessible website, in whole or in part.
A-4 APPENDIX A: ANSWERS TO END-OF-CHAPTER QUESTIONS

In this problem, Sisuphan had the required intent at the time of taking the funds, In
determining whether Sisuphan’s intent was fraudulent at the time of the taking, the main issue
was not whether he intended to spend the cash that he had taken. Rather, the deciding factor was
whether Sisuphan intended to use the funds for a purpose other than that for which the dealership
entrusted it to him. Sisuphan’s stated purpose was to jeopardize the employment of his
subordinate. This purpose indicated his fraudulent intent.
In the actual case on which this problem is based, Sisuphan was convicted of
embezzlement.

ANSWERS TO ETHICAL QUESTIONS

8–7A. Informing suspects of their rights
When this rule was first imposed, some observers argued that it would hamper police efforts to
bring criminals to justice. Exceptions were made for the admission of some confessions that
occurred before suspects were advised of their rights. Now some observers argue that there are
too many exceptions, making the situation confusing for police and the courts. Alternatives include
enforcing the requirement in all cases or dropping the requirement and videotaping all
interrogations.

8–8A. Identity theft

Omole perpetrated a sophisticated scheme that involved planning, execution, and avoidance of
detection. He defrauded individuals out of $90,000—which could be described as their “hard-
earned money”—and would likely have cheated them and others out of more if he had not been
stopped. He expressed contempt towards his victims and the court.
Omole’s conduct can be perceived as arrogant—a display of a feeling of superiority—and
lacking empathy for others, particularly his victims. There is no indication that he had any sense of
what it takes to live in society without cheating, stealing from, and victimizing others. To behave
ethically requires at least a willingness to refrain from illegal conduct and a degree of empathy for
others. Omole’s conduct showed that his character lacked these qualities. In other words, he
seems to have had no ethical principles. It might be countered that he was twenty years old and
that his behavior reflected only the self-centeredness of youth.
It might be pointed out that if Omole had put the ingenuity and energy he expended on his
illegal scheme to legal, practical use, he might have engineered a successful business. Instead,
his lack of ethics robbed himself and others of money and property, as well as the opportunity to
trust and be trusted and to do business in good faith.
In the actual case on which this problem is based, Omole was convicted and given a
sentence that the government appealed as too lenient. The U.S. Court of Appeals for the Seventh
Circuit vacated the sentence and remanded the case for resentencing.

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there was kindled an anti-Jewish feeling, warning those members of
the Conservative party who participated in this agitation that they
had raised a devil which they would find it very difficult to lay.
This statement, naturally enough, provoked many contradictions;
but the speaker, in reply, justly asserted that the fact was patent to all
readers of the newspapers which supported the Bill.
Other Liberal orators followed, some of whom described the Bill
as an example of panic legislation, and others as partly prompted by
an agitation directed against the Jews. Among the latter was Mr.
Trevelyan, who remarked that the measure aimed almost as much at
those who managed to prosper as at those who were poverty-
stricken, and that all the evidence went to prove that the great mass
of these aliens were sober and industrious people who in the long
run became good citizens. He maintained that among many people
outside the House there was a frankly anti-Semitic movement which
he dreaded and deplored, and that this petty and evil step was in
exactly the same direction as that in which the Governments of
Russia and Roumania had been going.
The long debate ended with a division, in which the amendment
was negatived by a Government majority of 124, and the Bill was
read a second time. But its triumph was far from being assured by
this victory. Outside the House there was as much divergence of
opinion on the merits of the measure, its scope, and its probable
effects as there was inside, and the rival parties spared no pains to
present the motives of their adversaries in the least flattering colours.
Thus, while the advocates of the Bill denounced the opposition to it
273
as “a net constructed with the primary purpose of catching votes,”
its opponents derided it as “an attempt on the part of the
Government to gratify a small but noisy section of their supporters,
and to purchase a little popularity in the constituencies by dealing
274
harshly with a number of unfortunate aliens who have no votes.”
The English Jews were not left unmoved by the fresh calamity
which threatened their suffering brethren. As early as May, 1903,
while the Royal Commission was still carrying on its investigations,
Mr. Israel Zangwill, at a mass meeting of Zionists, foretold the
recommendations of the Commission, and expressed the fear that
the exclusion of undesirable aliens might prove only the beginning of
worse things. “The Jews came over to England with the Conqueror,”
he said, “but all their services to him and his successors did not
prevent their expulsion two and a quarter centuries later. He did not
wish to be an alarmist, but nobody who had been caught in a crowd
of mafficking hooligans could doubt the possibility of anti-Jewish riots
275
even in London.” And when, a year later, the speaker’s prediction
as to the result of the Commission’s work was fulfilled, he again, at
another Zionist meeting, said that England “was catching the
276
epidemic which rages everywhere against the Jew.” This
statement was reported to Mr. Balfour, who replied that “he believed
it to be quite untrue,” declaring that “the Aliens Bill is designed to
protect the country, not against the Jew, but against the undesirable
alien, quite irrespective of his nationality or his creed. I should regard
the rise and growth of any anti-Semitic feeling in this country as a
277
most serious national misfortune.” In a letter to The Times Mr.
Zangwill reiterated his assertion, and, while absolving Mr. Balfour
himself from anti-Semitism, he insisted that the Aliens Bill was
inspired by anti-Semites—a statement which he once more repeated
emphatically in the course of an interview with a newspaper
278
representative.
Nor was the indignation confined to Jews only. Speaking at the
annual meeting of the British Jews’ Society in Exeter Hall the Rev.
Peter Thomson declared that the Jew had been rather a blessing to
the East-end than otherwise, and, as the best testimony of this, he
quoted the Chairman of the City of London Brewery Company, who
had lamented that the dividends had gone down because of the
immigration of the Jews into the district where their public houses
were situated, concluding that he himself had no blessing for the
279
Aliens Bill.
A few days later (May 19) a deputation of the Jewish community
sought an interview with the Parliamentary Under-Secretary for
Home Affairs and through Lord Rothschild, who introduced it, drew
attention to the clauses of the Bill which would press harshly and
unjustly on the numerous Jewish immigrants into this country,
pointing out that the investigations of the Royal Commission had
proved that the advent of the aliens was not a source of
disadvantage, but of benefit to England, that the increase of the alien
population was insignificant when compared with that of America,
and that the Bill provided no machinery for the exclusion of the really
undesirable, such as existed in America, but proposed to establish in
this country a loathsome system of Police interference and
espionage. The deputation further offered on behalf of the Jewish
community to enter into a bond that the Jewish immigrants admitted
should not become a public charge during the first two years of their
residence, and to assist the authorities in excluding criminals who
might be of the Jewish persuasion.
The Under-Secretary thanked the deputation for the very
moderate tone in which they had set forth their case, disavowed any
intention on the part of the Government to encourage anti-Semitic
feeling in England, said that all, from the Prime Minister downwards,
recognised the debt which England owed to the Jews, admitted that
those members of the race who came here were both healthy and
law-abiding, but, he maintained, the Bill sought to exclude the
diseased, bad characters, and the destitute.
These assurances, however, failed to reassure the Jews. Many
of them continued to apprehend danger; a few even began to regard
expulsion as not improbable in the future. This fear has found a
280
voice in literature. In a novel published while the fate of the Aliens
hung in the balance, the Jews are banished from England by a
wicked Home Secretary, and then are brought back again, because
“England can not get along without Jewish money and Jewish
brains.” The expulsion is, of course, hardly more convincing than the
reason given for the restoration. The authoress, herself, in the
preface, describes her book as “a story of the impossible,” but she
considers that “a warning—even in the form of fiction—may not be
out of place.” The danger may be imaginary and the warning rather
premature; none the less, the book bears witness to a genuine
feeling of alarm. Such a book could not have been written a
generation ago.
Mr. Balfour was, no doubt, quite sincere in repudiating any anti-
Semitic bias on his own part and on the part of his immediate
followers. The idea of a cultured English gentleman of the present
day actuated by religious or racial rancour is too grotesque to be
seriously entertained for a moment, and it is further disproved, if
disproof were needed, by the attempt which, as will be narrated in
the sequel, the Conservative Government, in true Imperial spirit,
made to provide a home in a British possession for those Jews
whose presence it deemed undesirable in the United Kingdom.
Another proof that Jew-hatred is not yet sufficiently powerful in this
country to imperil the peace of the Jews was furnished, about the
same time, by one of our most distinguished prelates, Bishop
Welldon, who in a sermon preached at Westminster Abbey on Good
Friday, 1904, exhorted his hearers to an imitation of Christ’s
example, and to a practical demonstration of their faith by
contributing to the East London Jews’ Fund: “That was,” he said, “the
best return they could make for the crucifixion of their Lord and
Master. The Jews gave him strife, and encompassed his death; we
gave them sanctuary and kindness, and without one word of
reproach. They gratefully acknowledged the noble citizenship of
Jews in all parts of the world. In return they offered them on this
anniversary day of our Lord’s Passion what was to Christians the
holiest, dearest examples of the life and character of the Crucified
281
Redeemer.” In the following year the Bishop of Stepney issued an
appeal in connexion with Holy Week and Good Friday on behalf of
the East London Fund for the Jews. The thoughts of the season, he
said, would be incomplete unless they gave a place to those “whose
rejection of their own Messiah has been one of the great tragedies of
history.” There are more than 100,000 Jews in East London
parishes, and in some parishes they form the majority of the
population. Following the method suggested some time ago by the
Upper House of Convocation, the diocese of London treats the East-
end Jews as neighbours and parishioners, and by the tact and
patience of the fund’s workers “the barrier of prejudice, built up by
long years of persecution at the hands of Christians, is being rapidly
282
removed.” While such sentiments prevail in England, the Jews
need not fear for their liberties.
Yet, that the apprehensions of the Jews and of all friends of
freedom are not wholly unjustified, that Sir Charles Dilke and those
who agree with him in suspecting that anti-Semitic prejudice is not so
uncommon in the Kingdom at large as it is among the upper ranks,
are not the victims of a hypochondriacal dread of phantoms, was
demonstrated with deplorable opportuneness by an event which
even a temperate pessimist cannot but regard as a rude and
practical version of the creed which is elsewhere preached in a more
refined form. While Mr. Akers-Douglas at Westminster was giving the
finishing touches to his prescription for the Alien complaint, the
people of Limerick were actually trying remedies of a more drastic
and homely nature.
The Jews had hitherto been conspicuous in Ireland chiefly by
their absence. With the exception of Dublin and Belfast, the island
knew the Jew from hearsay only, and his name was to the ordinary
Irishman what it was to the Englishman in the days of Gower and
Chaucer—a symbol for a vile abstraction. In 1871 there were only six
Jews in Cork, two in Limerick and one in Waterford. But of late years
persecution on the Continent has forced some of its victims to seek
an asylum in Ireland as in England, though to a much smaller
degree. The increase in the Jews’ numbers, slight though it was,
proved sufficient to arouse a feeling of alarm and suspicion among
the ignorant masses both in the towns and in the open country.
Craftsmen, tradesmen, ploughmen, and clergymen, all began to look
with jealousy upon the clever, thrifty, and infidel new-comers from
beyond the sea. This was especially the case at Limerick, where
lately had sprung up a diminutive colony of thirty-five Jewish families,
which was by the Chief Secretary for Ireland described as a “well-
conducted section of the community, engaged for the most part in
small trades, and dependent for their livelihood on the goodwill of
283
their customers.”
 Yet, small as this colony was, it soon attracted attention. The
Catholic inhabitants of that great centre of picturesque and
somnolent decay were not pleased at the comparative success of
their wide-awake neighbours. The animosity spread from the town to
the adjacent villages. The Irish peasant, proverbially improvident and
free from any comprehension of the nature of a bargain, was ready
to buy from the Jewish peddler his goods, and strongly disinclined to
pay for them. The goods were usually sold on the instalment system,
and this, in an imaginative mind, created a pleasant illusion which,
however, was rudely shattered when the day of reckoning came.
Then the peasant realised that the goods were not a free gift, and
bitterly resented the hardship of being made to discharge his debt. It
has been stated by the Irish peasant’s advocate that over three-
quarters of the civil bill processes at quarter sessions in the island
were those of Jews against such unsophisticated debtors for arrears
284
of payments for goods purchased. The statement has been
shown to be a romantic exaggeration on an unusually ambitious
scale. In plain prose, among 1387 civil bills entered for the county
and city of Limerick during the year 1903 only 31 were issued by
Jews, while in the Easter sessions of 1904, out of a total number of
285
320 civil bills, eight only belonged to Jews. None the less, it is
quite conceivable that often the peddler’s anxiety to obtain his
money, brought into collision with the peasant’s unwillingness to part
with his, led to strained relations between the two parties. In the
circumstances it was perfectly natural that the Jew should be
denounced for “usury and extortion.” Irish patriots saw in this new
oppressor of their innocent fellow-countrymen a kind of camp-
follower of the foreign conquerors. Poor Ireland was described as a
carcase whose bones were picked by the Russian and Polish jackals
of what had been left on them by the Norman lion and the Anglo-
Saxon wolf, and Byron was quoted with considerable effect:
 So, when the lion quits his fell repast,
286
Next prowls the wolf, the filthy jackal last,

The hatred for the creditor was soon extended to his creed.
Milesian patriots, indeed, vigorously repudiated the charge of
religious intolerance, protesting, as the Russians did before them,
that the animosity against the Jew was “merely financial and not
287
religious,” and there seems no reason to doubt that economic
distress in Ireland, as in Russia and elsewhere, had contributed its
usual share to a hostility which springs from many sources. But the
assertion that the prejudice was due “merely” to financial causes is
amply disproved by facts. These show that the Catholic clergy was
sorely scandalised at the humble prosperity of the unbelievers, and
thus there was laid up a quantity of combustible material which only
awaited a spark for explosion. This spark was supplied at the
beginning of 1904 by Father Creagh, a holy monk of the
Redemptorist Order, inspired by a religious fervour and a credulity
rare in these days and gifted with great eloquence of the kind which
once incited the mobs of Europe to outrages. Like many another
mediaeval saint, this priest was impelled by the purest of motives—
piety and patriotism—to preach a crusade against those whom his
untutored conscience taught him to regard as the enemies of his
people and of his God: “It would be madness for a man to nourish in
his own breast a viper that might at any moment slay its benefactor
with a poisonous bite. So it is madness for a people to allow an evil
to grow in their midst that will eventually cause them ruin.” Thus
began the preacher, and then proceeded to anathematise the Jews
as usurers who enslaved the people, as sinners who rejected Jesus,
as the secular persecutors of Christianity, as the monsters who “slew
St. Stephen, the first martyr, and St. James the Apostle, and ever
since, as often as opportunity offered, did not hesitate to shed
Christian blood, and that even in the meanest and most cruel
manner, as in the case of the holy martyr, St. Simon, who, though a
mere child, they took and crucified out of hatred and derision
towards our Lord Jesus Christ. Nowadays they dare not kidnap and
slay Christian children, but they will not hesitate to expose them to a
longer and even more cruel martyrdom by taking the clothes off their
288
back and the bite out of their mouth.”
Having endowed the Jew with the most diabolical character
imaginable and traced to him the woes of the Catholic Church in
France, the preacher concluded by exhorting his congregation to
have no dealings with the people whom God had cursed. As a result
of this atrocious sermon, no Jew or Jewess could stir abroad without
being insulted or assaulted, and, when the priest’s exhortations
reached the open country, there also, as in the city of Limerick, the
Jews fell a prey to a series of brutal attacks, until the preacher,
alarmed at his own success, urged his flock to desist from stoning
the unbelievers but try to starve them. The good people readily
obeyed. They not only ceased to deal with the Jewish peddlers, but,
improving on their pastor’s precepts, refused even to pay what they
owed to them for goods purchased in the past. And while Catholic
customers shunned the Jewish tradesmen, Catholic tradesmen in
some cases refused to sell to the Jews the necessaries of life. With
the exception of two or three families, the small Jewish colony of
Limerick was reduced to utter penury. People hitherto in comfortable
circumstances were forced to sell the very furniture of their houses in
order to buy food, while the majority of them were saved from
starvation only by the charity of some Protestant gentlemen, who,
however, were obliged to observe the utmost secrecy in rendering
assistance for fear of drawing down upon themselves the pious
wrath of the Redemptorist monks and of the six thousand brethren of
the Confraternity of the Holy Family, whose fanaticism the prophet
continued to inflame with his historic fictions. This state of things did
not end until, public opinion being roused in England, the
Government was induced to take adequate measures for the
protection of the Jews against violence, and philanthropists hastened
to their relief. Such was the position of the Jews in a part of Ireland in
the year of grace 1904.
Meanwhile the unblessed Bill, after having been safely piloted
through the stormy debate on the second reading, suffered
shipwreck in the relatively calm harbour of Grand Committee. Every
one of its clauses was subjected to severe criticism, until nothing
was left of the essay in legislation so carefully elaborated by the
Home Secretary. This catastrophe was by the advocates of the
measure attributed to “the obstructive tactics to which its opponents
289
resorted.” A more philosophical explanation of the failure of the
Bill, and one probably as remote from the truth, would be that the
Government, yielding to the importunity of some of its followers,
promised a measure which it had no power to pass and no great
desire to see passed. Be that as it may, few perhaps regretted the
failure of an attempt to shut out from this country all strangers
indiscriminately, for no better reason than that they are poor and
persecuted, thus conspiring with the very Governments whose
conduct we condemn and gratuitously forswearing those traditions of
freedom, tolerance, and hospitality which will probably in the
estimation of future ages stand much higher than a great many
things which we now value as our chief titles to the world’s respect.
These sentiments will naturally be received with derision by
persons who, fortified by copious draughts of statistics, boast a
healthy immunity from “sentimentality,” profess a truly primitive
contempt for abstract ideas, and glory in their emancipation from “the
capacity for being fascinated by magic words—such as the word
290
‘free.’” Strong-minded persons of this type confess that “they
cannot see what benefit accrues to the community by the advent of
such immigrants that can possibly compensate the injury to our own
291
people of a hard-working class.” Robust thinkers of this school
consider obstruction with a barrow of fruit by a poor lad an offence
sufficiently serious to justify exclusion, and this, too, while they
denounce the Roumanian Government’s policy as “directed to the
292
suppression, expulsion, and political extermination of the Jews.”
The statistical mind has its own way of looking at things, and it is
able to discern a difference in principle between “expulsion” and
“exclusion” which is too subtle for the mere layman’s eye. It is,
therefore, not surprising that statisticians should have continued their
self-appointed mission of enlightening the world on the enormities of
the foreign immigrant. The Immigration Reform Association,
immediately on the defeat of the Bill, announced its determination “to
continue, and, if possible, to extend its work,” and made an appeal to
293
the public for funds. The magazines continued to be filled with
articles on the same melancholy topic, and a daily newspaper
carefully chronicled under the standing heading “Our Foreigners Day
by Day” all cases, however frivolous, which tended to bring into
strong relief the foreigner’s criminality. Members of Parliament felt it
to be their duty to denounce to their constituencies the Radical Party,
which, by its “most persistent obstruction,” had obliged the
Government to withdraw the Bill, and to ask them to demand its
294
reintroduction. In brief, no efforts were spared to influence that
powerful assemblage of thoughtless dogmatists known as the
reading public, and to guide that monstrous machine which,
propelled by prejudice and fed by newspaper paragraphs,
constitutes what we cynically call public opinion.
The Government also benevolently promised, both through its
members and in the Speech from the Throne, that the Opposition
would be given an early opportunity of reforming their manners with
regard to the question. Naturally. For, according to the Board of
Trade alien immigration returns, the number of foreigners who
arrived in the United Kingdom during the twelve months which ended
on December 31st, 1904, showed few signs of decline. It was,
therefore, plain that the Aliens Bill was not dead; but that the same
measure, or a measure conceived in the same spirit, would, unless
some power hitherto undiscovered removed the grievance, be again
submitted to Parliament at some future date. And this is what
actually happened. On April 18, 1905, the Home Secretary brought
in a new Bill which differed from its predecessor chiefly in being
better adapted to the purpose for which it was intended. And yet,
though the arguments by which it was supported and the object at
which it aimed remained the same, it met with an entirely different
reception. The public had, in the meantime, been so successfully
“educated,” and the feeling in favour of legislation for the restriction
of the entrance of aliens had grown so strong, that the Opposition,
mindful of its party interests, refrained from opposing the measure
with the vigour which it had displayed in the previous year, and the
Bill, a few months afterwards, became law. That being
1905 Aug. 11
the case, it is well to form a clear idea as to the merits
and the meaning of the measure.
The Aliens Act is avowedly levelled only at the criminal, the
pauper, the diseased, and the prostitute. So far it is a measure
unobjectionable in theory, however impracticable it may prove in
application. Those charged with the execution of its provisions may,
if they can, prevent the arrival of these truly undesirable immigrants.
No one desires them. But this only touches the fringe of the matter.
The exclusion of such immigrants affords no remedy for the
congestion and competition which form the principal grounds of
complaint against the alien immigrants. The bulk of these are
Russian and Polish Jews and, as a class, are, by the late
Government’s own admission, neither criminal, nor destitute, nor
diseased, nor immoral. They are not a burden on the British tax-
payer. They crowd neither the British workhouses nor the British
hospitals. The evils complained of can, therefore, be remedied not
by the exclusion of the few bad characters, but only by refusing an
asylum on British soil to the industrious and temperate victim of
Russian or Roumanian tyranny, who, when allowed the opportunity,
is, in the vast majority of cases, transformed, within a few years, into
a valuable British citizen. And the Act, accordingly, while professing
to be directed against undesirable characters, makes no distinction
whatever between the undesirable and the merely unhappy. It
provides nominal protection for political refugees, it is true, but the
subordinate officials, to whose discretion the matter is practically left,
are empowered to prohibit from landing men and women whose sole
crime is that, accustomed to a frugal life, they are willing to accept a
wage which the English working man and woman refuse. Is this a
cause sufficient to justify exclusion? That is the real question at
issue, honestly put. The talk about criminals, paupers and prostitutes
is only a disingenuous effort to clothe a selfish economic matter with
a semblance of morality. It is not their vices but their virtues that
render Jewish immigrants really undesirable. Is that right? The
answer to this question would have been easy enough a few years
ago. But now, when the whole principle of free competition is under
reconsideration, the answer which the majority of Englishmen will be
disposed to make to it must ultimately depend on their decision
concerning that principle.
How far can the Act be fairly regarded as a symptom of anti-
Semitic feeling? There can be no doubt that its authors and many of
its supporters, entirely free from religious or racial prejudice
themselves, intended it simply as a remedy for an economic
complaint. But whatever the late Government’s intentions may have
been, and whether in this matter it acted as a leader or a follower, it
has in effect provided anti-aliens and anti-Semites, avowed or
secret, with the very weapon which they wanted, as they showed by
their eager participation in the movement which, if it did not dictate
the measure, certainly assisted in its production. Again, it would be
unfair and untrue to charge all, or even the bulk, of the anti-alien
agitators with anti-Semitism. The great majority of them were and
are animated by no special prejudice against the Jews as such, and,
if they teach the masses any lesson, it is to hate and to despise all
foreigners impartially. But as by far most of these foreigners who
come to England happen to be Jews, it is impossible to dissociate
the anti-alien from the anti-Jewish campaign. On the Continent the
haters of the Jew on racial or religious grounds are few in
comparison with those who persecute him from enlightened motives,
economic and social. Yet we brand them all as anti-Semites, justly in
the main, if somewhat loosely; for differences in motive are of little
practical importance when they lead to agreement in action. In
England also the few enemies of the Jew have recognised in the
enemies of the undesirable alien natural allies, and the two forces,
however widely they may differ in their origin, coalesce into practical
anti-Semitism—a coalition which has found, as we have seen, a
common vehicle of expression in the provincial patriot’s pamphlet.
Other signs of anti-Semitism, in the strict sense of the term, are not
wanting; the most sinister of them hitherto being the Limerick affair. It
is, of course, easy to overrate the significance of these cases. It is
not so easy to overlook them.
Even more ominous than these specific cases is the slow
formation in the British Isles of an atmosphere favourable to the
dissemination of any illiberal epidemic whose germs may chance to
grow at home or to be imported from abroad. Narrow nationalism is
daily becoming more aggressive, more unscrupulous, and more
unashamed of itself. Public opinion is daily showing a more ready
acquiescence in the sacrifice of the claims of man to the claims of
the Englishman—this is called patriotism—and of the claims of right
to the claims of policy—this is called Imperialism. Patriotism is a
noble sentiment, and the imperial is a noble ideal. But nobler than
either patriotism or Imperialism are justice and freedom. With these
the love of country and the love of Empire are things for which one
may well be content to live and happy to die. Without them they are
merely fair masks for things whose real names are worship of self,
worship of pelf, the deification of brute force, low lust of conquest
abroad, which sooner or later leads to slavery at home; substitution
of the little and the local for the great and the eternal. It is a gradual
approximation towards that standard of conduct which has turned
Germany from a high school of humanistic culture into a barrack,
and which threatens to turn England from a school of political liberty
into a shop. A ledger is a respectable book enough, but an indifferent
substitute for a moral code. And we seem to take pride in quoting the
ledger and in ridiculing the moral code.
The whole controversy in Parliament and in the press on the
Alien question is an illustration of this attitude. In vain you will seek
amid the conflicting arguments for any clear apprehension of the
principle involved. The same politicians and publicists who
denounced the late Government for endeavouring to exclude the
undesired alien from England, denounced it also for not excluding
the undesired alien from South Africa. The same calumnies from
which they defended the Jew they themselves would level at the
Chinaman, and while they appealed to the ideal of freedom in order
to stigmatise the Government’s attempts to protect the native of
England against competition, they anathematised that Government
for not protecting the native of South Africa against similar
competition; objecting not so much to the conditions under which the
yellow man was imported as to the colour of his skin. Even the most
liberal of our public men are apt to use the terms “white man” or
“alien” in a manner which shows that they are far from being proof
against the prejudices which they condemn in others. At no other
time, perhaps, has more painfully been demonstrated the ominous
absence of consistent principle from British statesmanship. The two
political parties, devoid of any sincere faith in the maxims which they
profess, are ready to deny one day what they may defend the next,
and to exchange creeds at a moment’s notice for a moment’s gain.
In such a state of the national temper and of political morality anti-
Semitism would find only too congenial a soil. The present writer,
after a careful study of the whole history of the modern movement
against the Jews, cannot but concur with those who maintain that the
seeds of anti-Semitism are already amongst us. These seeds may
still lie too deep for germination, but there are sufficient reasons to
fear that in England, as on the Continent, any accident may, sooner
or later, bring them near the surface and aërate them into life. The
day on which this may happen will be a black day not for the Jews
only.
The meaning of anti-Semitism, as it prevails abroad, can be read
by the light of its results. By their actions thou shalt know them. But
the actions of the anti-Semites, deplorable as they are, are less
deplorable than the social conditions which they illustrate. Anti-
Semitism is a movement retrogressive in a twofold sense.
Retrogressive inasmuch as it shows that the current of European
humanism is flowing backwards, and retrogressive inasmuch as it
has actually checked the gradual and voluntary assimilation of the
Jew. It is a resurrection of the mediaeval monster of intolerance with
a fresh face, and its effects are those which attended mediaeval
persecution.
Among the worst Jews it has brought back to life the class of
vulgar apostates which had vanished with the emancipation of the
race—lineal descendants of those renegades who in the Dark Ages
poisoned the shafts of persecution, who slandered their own race,
befouled the nest in which they had been nursed, reviled their own
God, and treated their own brethren with a contempt which none
deserved more richly than themselves. Such a specimen of
reversion to a type which one had fondly imagined to be extinct is
the editor of a well-known French journal, than whom no one
distinguished himself more unenviably in the anti-Dreyfus campaign.
He was only one of many Jews who, ashamed of their despised
race, strive to conceal the guilt of their origin by joining the ranks of
its most rabid foes, and who, by their excessive zeal, betray what
they would fain disguise. Readers of M. Anatole France’s Histoire
Contemporaine will remember the exquisite portraits of Hebrew anti-
Semites, such as Madame de Bonmont—“une dame catholique,
mais d’origine juive”—her brother Wallstein, M. Worms-Clavelin, the
prefect, and, above all, the prefect’s wife, who educated her
daughter in a Catholic convent, and who “a garni avec les chapes
magnifiques et vénérables de Saint-Porchaire ces sortes de meubles
appelés vulgairement poufs.”
Among the best Jews it has brought about a reaction against the
ideals established by Mendelssohn’s teaching. It has originated a
call back to orthodoxy, to narrowness, to exclusiveness. Israel at the
present day is essentially a religious brotherhood; anti-Semitism
forces it to become once more a nation. Even those Jews who in
time of prosperity might feel inclined to quit the Synagogue, are in
the day of adversity driven back to it from a sense of chivalry.
Persecution strengthens the feeling of fraternity, and the liberal
instincts of the individual are sacrificed for the sake of the
community, as in the days of old. But, if separatism is fatal to the
Jews themselves, it is hardly a blessing to humanity at large. From
the other point of view, the Gentile, anti-Semitism is not less an evil.
Disraeli once said that “Providence would deal good or ill fortune to
295
nations according as they dealt well or ill by the Jews.” The
saying, when stripped of its quasi-apocalyptic garb, will be found to
conceal a great truth in it. Hatred towards the Jew has always
abounded whenever and wherever barbarism has abounded. The
amount of anti-Semitism in a country has generally been
proportionate to the amount of bigotry, mental depravity, and moral
callousness it contained. That so many now are willing to advocate
anti-Semitism marks the precarious and superficial character of our
civilisation.
I have already said that I consider anti-Semitism as a proof and
an illustration of a tendency to turn back the hand on the dial. It is a
coincidence, not perhaps wholly devoid of significance, that the age
which has witnessed the revival of Jew-hatred is also the age of
revived mediaevalism under other aspects—art, literature, and
religion. The step from Romanticism to Romanism is a very short
one. Indeed, the two things may be regarded as only two different
manifestations of one mental disposition: the disposition to a
mediaeval interpretation of life and its problems. More significant still
are the attempts made in these days to whitewash the great tyrants
of the past whose principles reason and experience have taught us
to abhor. Most significant circumstance of all, the apologists of the
Inquisition, whom the sarcasms of the eighteenth century had
shamed into silence, and Napoleon’s cannon cowed into feigned
toleration, have, within the last thirty years, taken heart again, and
ventured to abuse that liberty of speech which they owe to the
triumph of Rationalism by preaching the cause of Obscurantism.
Learned Jesuits and Benedictines in many parts of Europe have,
since 1875, not only publicly acknowledged and defended the
abominations of the Holy Office, but actually expressed an
undisguised longing for its restoration to the power of roasting every
296
one who dares to think for himself. That they may succeed is a
fear which even the most fantastic of pessimists would feel unable to
cherish. But their mere existence forms in itself a considerable check
on too sanguine optimism.
 CHAPTER XXIV

ZIONISM

The persecution of the Jews in Russia, their oppression in Roumania

and the revival of the old prejudice against them in Western Europe
during the last quarter of the nineteenth century have, as has been
pointed out, arrested the gradual denationalisation of Judaism, which
had commenced in the latter part of the eighteenth under
Mendelssohn’s impulse, and, in proportion as they have widened the
hostility between Jew and Gentile, they have tended to tighten the
links of sympathy between the Jews scattered in various parts of the
world. Under the benign influence of persecution Jewish patriotism
has again blazed up into flame. This sentiment has found a practical
expression in many movements set on foot for the relief and rescue
of the suffering race. One movement of the kind, prompted by the
anti-Jewish agitation in Russia and the resuscitation of the blood
accusation against the Jews of the Near East in the ’fifties, resulted
in the birth of a society the object of which it is to watch over the
interests of the Jews in the countries where they are exposed to
danger, to protect them against persecution, to promote their
material welfare, and to encourage their intellectual development.
This is the Alliance Israélite Universelle, founded in Paris, in 1860.
Its funds are derived from thousands of subscribers all over the
world, and its work is carried on by branch establishments in many
countries. The educational activity of the Alliance is especially
directed to the Near East and the coast of North Africa—Bulgaria,
Turkey in Europe and Asia, Persia, Egypt, Tripoli, Tunis, Algeria,
Morocco. In all these countries it maintains numerous schools at an
annual expense which in 1903 amounted to 1,200,000 francs. In
connection with the Alliance there was established, in 1871, in
London the Anglo-Jewish Association, and in Vienna the Israelitische
Allianz, whose principal aim is the elevation of the Jews of Galicia. It
was mainly through these societies that the cause of the Roumanian
Jews was advocated in 1872 and that the members of the Congress
of Berlin, in 1878, were induced to take the ineffectual steps already
described for the improvement of the condition of the Jews in
Roumania and Servia. Foremost among these, and many other
organisations for the succour of Jewish victims of persecution,
stands Baron Hirsch’s gigantic fund of £9,000,000 for the settlement
of emigrants in new countries.
But all these efforts can only be described as palliatives. They
aim simply at a temporary alleviation of the sufferings of Israel; they
do not attempt to provide a radical remedy for the evil. The only
remedies that history points out as worthy of the name are either
assimilation of the Jews in various countries to the Gentiles among
whom they dwell, or separation from the latter, geographical as well
as political. The first alternative, as we have seen, has from time to
time appeared within a certain distance of partial realisation,
reaching its nearest approach in the years following on the
emancipation of the race under the influence of the broad principles
of humanitarianism which reigned during the latter half of the
eighteenth and the beginning of the nineteenth century. Whether this
approach would ever have developed into a general absorption of
the Jews is a speculative question which admits of more answers
than one. The fact that is of greater value to the historian is that such
a development was checked by the reaction already described under
the name of anti-Semitism. Hence the other remedy has come more
and more to the front under the name of Zionism.
The movement combines in itself two aims, a practical and a
sentimental one. Its practical aim is to provide a solution of the
Jewish problem by bringing about the geographical and political
separation of the Jews from the Gentiles. Its sentimental aim is to
satisfy the traditional attachment of the Jews to the land of their
origin. In neither of its two aims can the movement, under its modern
aspect, claim to be original. Attempts to restore the Jewish State, in
some form or other, have repeatedly been made in the past. In the
middle of the sixteenth century—the age of the Ghetto—Tiberias was
proposed by a Jew as the seat of a new Jewish State. In the middle
of the seventeenth—the age of Sabbataï Zebi—three more schemes
of the kind were advocated: one for a settlement of the Jews in the
Dutch West Indies, another for their emigration to Dutch Guiana, and
a third recommended French Guiana. In the middle of the eighteenth
century South America was again proposed, and North America in
the middle of the nineteenth. But none of these proposals succeeded
in evoking any enthusiasm among the Jews. On the contrary, the
orthodox Jews—and such are the majority of Eastern European
Jews—led by their Rabbis, strenuously opposed the last suggestion
of emigration to America which was made by their more advanced
brethren of the West; and the plan perished still-born.
The Zionist movement, on the other hand, differs from all former
movements, except the first, inasmuch as it strives to enlist in its
favour the heart as well as the head of Israel. In selecting Palestine
as the future home of the race, the leaders of the movement have
endeavoured to gratify a craving, the force of which it is easy to
exaggerate, but impossible to ignore. If there is in Jewish history one
event that has exercised a lasting influence over the fortunes of the
nation, it is the destruction of Jerusalem and the consequent
dispersion. If there is one sentiment that has bound the branches of
the Jewish family together through the ages, more strongly than any
other, it is the hope of ultimate rehabilitation. For eighteen hundred
years the children of Israel have wandered over the earth, insulted,
oppressed, persecuted, without a country, without a home, with
scarcely a resting place, strangers in every realm in which they
pitched their tent. But, though banished from the land of their birth
and far from the tombs of their forefathers, the vast majority of them
have preserved, amidst all trials and temptations, their traditions,
their usages and their faith unimpaired. Without the hope of
restoration such constancy would have been impossible and
meaningless.
The destruction of Zion cast its shadow over the soul of the
Jewish people throughout the Middle Ages, and the mourning for it is
the most picturesque, the most pathetic, and the most prominent
feature of their public and domestic life. In the synagogues, as well
as in many private houses, a space on the wall was always left
unpainted to recall the national humiliation. The Jews of every
country in token of grief wore black, whence they were called
“Mourners of Zion.” In memory of the same calamity gold and silver
ornaments were banished from the bridal wreath, and ashes were
strewn over the heads of the bride and the bridegroom at weddings.
In Germany the bridegroom wore a cowl of mourning and the bride a
white shroud. A mediaeval table-hymn, sung after the meal on Friday
evenings, or Saturday mornings, ran as follows:

“Build, O rebuild Thou, Thy temple,

Fill again Zion, Thy city,
Clad with delight will we go there,
Other and new songs to sing there,
Merciful One and All-holy,
Praisèd for ever and ever.”

Similar examples might be cited from every side—all showing

that the sad memories of the past and the belief in ultimate triumph
were the two poles between which revolved the spiritual life of the
nation. The Prophets who had predicted the dispersion and the
captivity of the children of Israel had also predicted their repatriation.
“Behold, I will gather them out of all countries whither I have driven
them in mine anger, and in my fury, and in great wrath; and I will
bring them again unto this place, and I will cause them to dwell
297
safely.” This hope was the life-belt which enabled the Jew to float
amidst the wrecks of so many storms during eighteen centuries. In
the night of their darkest desolation the Jews kept their eyes fixed to
the East, and said to themselves and to one another, “Courage, the
day is at hand.” Attachment to Faith and Fatherland—the religious
and the national ideals—are the two strands, indissolubly entwined,
of that great Messianic dream which runs like a golden thread
through the black web of Jewish history. The Holy Land never
ceased to be regarded as the true home of the race. Benjamin of