Jewish Rights in Palestine

Author(s): Solomon Zeitlin

Source: The Jewish Quarterly Review , Oct., 1947, Vol. 38, No. 2 (Oct., 1947), pp. 119-134
Published by: University of Pennsylvania Press

Stable URL: https://www.jstor.org/stable/1453037

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 JEWISH RIGHTS IN PALESTINE

By SOLOMON ZEITLIN, Dropsie College

THE critical position that Palestine occupies in the peace

of the Near East - possibly in the peace of the world
has turned the eyes of mankind towards that strife-ridden,
harassed, little land. The United Nations, through its
appointment of an investigating commission, has manifested
this universal concern over the fate and destiny of Pal-
estine.
In this essay our aim is to clarify on the basis of authentic
original sources what rights inhere in the Palestine situa-
tion for the Jews and other peoples from the standpoint
of religion, history, and law. Partisan literature on Pal-
estine has tended to confuse fundamental basic issues.
Extravagant claims and counter-claims are but poor count-
erfeit substitutes for the realities of history. At this crucial
historic moment, when the fate of Palestine is about to
be weighed in the councils of the United Nations, we pro-
pose to review the sources to be found in Jewish, Christian,
and Mohammedan literature which throw light upon the
religious, historic, and legal claims to Palestine.

1. RELIGIOUS CLAIMS

Palestine, as the land of Israel, has been religiously con-

nected with the Jews from their beginnings down to modern
days. In the Pentateuch God promised the patriarchs in
a covenant that their children would inherit this land pro-
vided they in return would accept Him as their God. The
God of Israel was regarded as the God of the land.
According to the prophets the Israelites were exiled
119

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120 THE JEWISH QUARTERLY REVIEW

from their land because they did not worship the God of
the land. Ezekiel in his vivid and memorable vision com-
pared the Israelites who had given up hope of ever return-
ing to the homeland to "dry bones." "Our bones are
dried up," they cried, "and our hope is lost; we are clean
cut off." But the prophet, to encourage them and to inject
new life in their "dried bones," in the name of God replied:
"I will put My spirit in you and ye shall live and I will
place you in your own land."',
After the return to the homeland, the people no longer
considered God to be connected with the land of Israel
only; He is the God of the universe.2 However, the land
of Israel remained the holy land for all the Jews of the
world. Jerusalem was the mother city, the Holy City, for
all the Jews; and it was so named by Philo.3 Josephus like-
wise called Jerusalem the Holy City,4 for it is the mother
city of all the Jews of the inhabitable globe.
During the time of the Second Commonwealth the Jews
of the entire Diaspora made pilgrimages to the Holy Land,
and sent sacrifices to the Temple. These pilgrimages never
ceased throughout the history of the Jewish people. The
ancient rabbis spoke of the Jews living there as assured
of a portion in the future world.5 According to them, the
precept to settle in Palestine was equal to the sum total
of all the other precepts of the Torah.6 Even a breach in
the observance of the strict laws of the Sabbath was some-
times overlooked, when it was done in the interest of ac-
quiring property in Palestine.7 Throughout the Middle
Ages the Jews and the land continued an integrated entity.
IEz. 37.
2 See my study, "Judaism as a Religion," JQR, 1943, pp. 327-43.
3 Legatio ad Gaium, 36.
4Jewish War, II, 16, 4, (397); VII, 8, 7 (379).
s Yer. Shek. 3, 3. min N.n Y low n *... *Mv y-ix 'Diwp' '.
6 Ket. 110b. riinrwv nixvn i: -i= nlipv xnmw r-im n:riz, i-mm.
7 B. K. 80b. new: im 1ims i' pby innl:) i ryix n'm nprim .

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 JEWISH RIGHTS IN PALESTINE-ZEITLIN 121

Judah ha-Levi, the celebrated poet and philosopher of

the 12th century, voiced the belief that God had selected
Israel as the Chosen People. He also selected Palestine
of all the countries of the earth as His favorite abode.
True, God was the Creator and Master of the entire universe
but the land of Israel was especially dedicated to Him.
While other countries were ruled by angels, God Himself
ruled the land of Israel, which He gave as an inheritance
to His people. The divine election of Israel was interwoven
with the selection of the land. Only through the land of
Israel, it was believed, could the Jews advance to per-
fection.8
Judah ha-Levi's passionate love for Palestine, so glow-
ingly revealed in his elegaic poems, immortalized his
peoples' love and longing for the Holy Land. His heart was
in the East even though his body was in the West. He left
his home for his beloved Palestine, braving the dangers and
hazards of the journey. A legend relates that when he
entered Jerusalem an Arab came galloping along and trod
him down. He died kissing the soil of Jerusalem, and the
last word he uttered was his Song of Zion.
Nachmanides, who was born shortly after the Latin
kingdom was destroyed by Saladin and who witnessed the
conquest of Palestine by the Mamelukes, said that since
the Jews left Palestine, no nation could or would hold Pal-
estine. The land belongs to the children of Israel. It was
the particular domain of God.9
This conception became a part of Jewish theology. Ac-
cording to the rabbis, only in Palestine could a prophet
arise, for only there could the Holy Spirit be found.
Of the three universal religions, Judaism, Christianity
and Islam, only Judaism is continuously interwoven with

8 Comp. Kuzari, II, 11-24.

9 Comp. Nabmanides, Lev. 18.25.

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 122 THE JEWISH QUARTERLY REVIEW

Palestine. The Christians did not consider Judaea, now

known as Palestine, of any great importance in connection
with their religion. When Jerusalem was besieged by the
Romans the Christians did not defend the city, as did
their Jewish brethren, but left for Pella.Io For them Judaea
was not a Holy Land. Only the places of Jesus's birth and
burial were considered loca sancta."l For the Jews, however,
the entire country of Palestine was considered a Holy Land.
Other cities and places were regarded as holy in the eyes
of the Christians. Indeed, St. Jerome wrote in one of his
letters: "The court of heaven is equally open from Jeru-
salem and Britain.9 12

Eusebius, The Church History, IV, 5.

"1 The earth where Jesus was buried was considered holy and was
used as a means of exorcism of evil spirits. Acceperat autem ab amico
suo terram sanctam de Hierosolymis adlatam, ubi sepultus Christus die
tertio resurrexit. "Now he (Hesperius) had received from a friend of
his own some holy earth brought from Jerusalem, where Christ, having
been buried, rose again the third day." De Civitate Dei, XXII, 8. In
the early centuries of Christianity devout Christians used to go to
Jerusalem to visit the holy places. We are told that Arculfus, a bishop
of Gaul, went to Jerusalem for the sake of the holy places.
The first to call Palestine the Holy Land, Terra Sancta, was Pope
Urban 11, who, in addressing the Council of Clermont (in the year
1095), said: "Quam terram merito Sanctam diximus, in qua non est etiam
passus pedis quem non illustraverit et sanctificaverit vel corpus vel umbra
Salvatoris, vel gloriosa praesentia Sanctae Dei genitricis, vel amplectendus
Apostolorum commeatus, vel martyrum ebibendus sanguis effusus. The
name, Holy Land, applied to Palestine, thus was for the first time
emphasized by Pope Urban II and has been frequently used down to
our own time. However, neither in the New Testament nor in the
writings of the Church Fathers, was the term Holy Land ever applied
to Palestine.
12 et de Hierosolymis et de Britannia aequaliter patet aula caelestis;
... Antonius et cuncta Aegypti et Mesopotamiae, Ponti, Cappadociae
et Armeniae examina monachorum non uidere Hierosolyman, et patet
illis absque hac urbe paradisi ianua. beatus Hilarion, cum Palaestinus
esset, in Palaestina uiueret, uno tantum die uidit Hierosolymam, ut nec
contemneret sancta loca propter uiciniam nec rursus deum loco cludere
uideretur.
"Anthony, and all the swarms of monks of Egypt and Mesopotamia,
of Pontus, Cappadocia, and Armenia, saw not Jerusalem; and the gate
of Paradise is open to them without (a knowledge of) this city. The

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 JEWISH RIGHTS IN PALESTINE-ZEITLIN 123

Christianity, in truth, arose in Jerusalem; but the early

Christians gave up the earthly Jerusalem and spoke only
of the Heavenly Jerusalem. "But Jerusalem which is above
is free, which is the mother of us all,"I3 wrote Paul to the
Galatians. St. Augustine also spoke of a heavenly Jeru-
salem but not of the Jerusalem on earth. For him the true
Jerusalem, the eternal one, was in heaven, "Whose children
are all those who live according to God on the earth."I4
Judaism, on the other hand, while also speaking of a heavenly
Jerusalem always emphasized the earthly Jerusalem. The
heavenly Jerusalem, moreover, could only be realized after
the earthly Jerusalem has been re-established. This is well
expressed in the Talmud. God said: "I will not enter the
heavenly Jerusalem until I reenter the earthly Jerusalem."I's
Rome, the city where Peter and Paul were executed,
became the center of Christianity and its symbol. For
the Christians Rome became the Eternal City. James
Bryce well characterized this fact when he said: "To be
a Roman was to be a Christian, and this idea soon passed
into the converse. To be a Christian was to be a Roman."'6
Judaism, on the other hand, recognized no holy places
outside Palestine. The Jews who lived in the Diaspora
were always connected spiritually with the Holy Land.
They never ceased to pray for the coming of the Messiah,
when Palestine would be the center of the religion of the
entire world, when the prophecy of Isaiah about the uni-

blessed Hilarion, though he was a native of Palestine, and lived in

Palestine, only saw Jerusalem on a single day; that he might not appear
to despise the holy places on account of their nearness, nor, on the
other hand, to confine God to place." Epistula, LVIII, 3. Comp. also
CVIII.
I134.26.
I Id est ueram Hierusalem aeternam in caelis, cuius filii homines sec-
undum Deum uiuentes peregrinantur in terris. De civitate Dei, XVII, 3.
IS Tan. 5a. wta -y rlon m'iw 1?z mam mt? mp -,Pn 1mnl' ', -,o

i6 The Holy Roman Empire, chs. 5-9.

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 124 THE JEWISH QUARTERLY REVIEW

versal fellowship of man would be fulfilled. In a word,

in Christianity only those places connected with Jesus's
birth, his sojournings and the holy sepulcher were par-
ticularly sacred, not Palestine as a whole. For Judaism
Palestine is central to the most important aspects of Jewish
theology.

As to Islam, Palestine can hardly be said to have played

an important part in Islamic thought. While the roots of
Christianity stem from Palestine, Islam flowered in the
desert of Arabia. The Koran does not make mention of
Palestine; its religion is focused on Mecca.16a It is true
that the Koran (Sura 17) relates that Mohammed was
transported at night from the sacred Temple of Mecca to
the Temple of Jerusalem, and, according to tradition, was
carried through the seven heavens to the presence of God
and was brought back to Mecca the same night. But,
apart from this, Palestine never became an integral part
of the religion of Islam.

Mohammed, in order to break with Judaism and Chris-

tianity, particularly the former, substituted Friday for
the Sabbath; Ramadan was established as a month of

i6a In Koran, Sura 21, Mohammed is reported as saying: "We

delivered him (Abraham) and Lot by bringing them into the land
wherein we have blest all creatures." According to some commentators,
this land is Palestine. Baidawi, however, takes the meaning to be that
God brought Abraham and Lot from Iraq to Syria, }.11 {_. ,$1
lt.J1 53l.
Again, in Koran, Sura 5, Moses implores the Jews to "enter the Holy
Land (4.38 Ai2l ) which God hath decreed you." Here, too, most
commentators refer the expression to Palestine. Baid.awi, however
records an opinion that it denotes the Mountain (of Sinai) and its
environs. "There is an opinion that it means the Mountain (Sinai)
and its surroundings." (Baidawi 5.24) In any event, Palestine did not
figure to any appreciable extent as a Holy Land in Islamic thought and
was not so considered by the True Believers, whereas to the Jews it
always possessed a sacred character. The author of II Maccabees,
which dates as early as c. 125 B. C. E., (Chapter 1, 7) designates
Palestine as a"ya 'y (Holy Land).

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 JEWISH RIGHTS IN PALESTINE-ZEITLIN 125

fasting; and qiblah -the direction to be observed during

prayers - even was changed from Jerusalem to Mecca. Pil-
grimage likewise was directed to Mecca, which was made
a holy city instead of Jerusalem.
From time to time the Moslems do go on pilgrimages
to such places as the Temple area, Hebron and the Nebi
Muisa, but these are only places of local pilgrimages. The
Koran commanded all believers to make pilgrimages to
Mecca (Sura 3). There is a tradition that if a Moslem
has not made at least one pilgrimage to Mecca he might
just as well have died a Jew or a Christian. On the other
hand, according to Jewish tradition, any Jew who lives
in Palestine is assured of a part in the future world.
To summarize: there are places in Palestine which be-
came holy to Christianity and to Islam, but the land as
a whole was not considered holy by these two religions.
Palestine as a Holy Land is connected with Judaism only.

2. HISTORICAL CLAIMS

One may argue that while it is true that Palestine is

considered the Holy Land for the Jews, historically it is
not their land since they lived there but a short time and
legally they lost title to it, when Palestine was conquered
by the Romans. What are the historical facts? The follow-
ing is a brief resume.
The land of Canaan, later known as Judaea and Palestine,
was conquered by the Hebrews under the leadership of
Joshua approximately two thousand years befQre the pres-
ent era. In the early days, there was no union among the
Hebrews: they were divided into tribes. They were subju-
gated for a time by different neighboring nations. Subse-
quently, some of the tribes united. The first real union
among the Jews came about when Saul was elected king.
This was some time at the end of the second millennium

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126 THE JEWISH QUARTERLY REVIEW

before the Common Era. After him David ruled over all
Israel, and was succeeded by his son, Solomon. On Solo-
mon's death the United Kingdom was divided.
The Northern Kingdom was conquered by the Assyrians
and later, in 587-6 B. C. E., Judaea was captured by the
Babylonians. Not all the Jews, however, were exiled from
the land. According to the II Book of Kings the poorest
people were left in Judaea. In 538 B. C. E., Cyrus, the
king of Persia, gave the Jews permission to return to their
homeland. The Temple was rebuilt later, and the Jews
were settled in a free, autonomous land under the leadership
of their High Priests. Thus the Jews were in exile less
than fifty years, and even during that time some Jews,
the poorest among them, remained in Palestine to farm
the land.
In the year 333 B. C. E. Alexander defeated Darius and
became ruler of the Persian Empire, including Palestine
which was then called lower Syria (Coelo-Syria). With
the conquest of Judaea by Alexander, the status of the
land was not changed. The Jews, ruled by their High
Priests, remained there. After the death of Alexander the
land became a part of the Ptolemian empire and later a
part of the Seleucidean empire but the Jews continued
to live in Palestine uninterruptedly. Before Judaea became
an independent state, Judas Maccabeus made a political
alliance with the Romans.17
Pompey, the Roman general, captured Jerusalem in the
year 63 B. C. E. With the conquest of Judaea by Pompey,
changes occurred in the political life of the Jews but no
change took place in their religious life. Even later when
Judaea became a province of Rome, the Jews enjoyed a
measure of autonomy in their land. It was still consid-
ered the land of the Jews.

17 See I Mac. 8.

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 JEWISH RIGHTS IN PALESTINE-ZEITLIN 127

In 70 C. E. Vespasian conquered Judaea and put an

end to its political independence. But the Jews were not
exiled from the land. The Romans punished only those
who participated in the revolt against them. The Jews
continued to live in the land under the autonomy of their
religious Sanhedrin.

After the revolt against Hadrian (132-135 C. E.), the

Jews were forbidden to enter Jerusalem but they were
allowed to live in Galilee. The center of Jewish life was
shifted from the South to the North, Tiberius becoming
the main seat of Jewish learning and the residence of the
Sanhedrin.

In the Fourth Century, when the Roman Empire was

divided, Palestine became a part of the Eastern Roman
Empire, Byzantium. Although the Jews were greatly hu-
miliated and persecuted and their religion only tolerated,
they continued to live in the land. In the year 615 Khusraw,
King of Persia, aided by the Jews, conquered Jerusalem.
In 628 the Byzantine king Heraclius reconquered Palestine.
A few years later (636 C. E.), the Arabs, sweeping in from
the desert with great fanaticism, holding the sword in one
hand and the Book in the other, put an end to the domi-
nance of the Byzantian Empire over Syria and Palestine.
The Eastern Roman Empire was eliminated from the Middle
East. It is told that when the city of Jerusalem surrendered
to the followers of Mohammed a condition was laid down
that no Jew should be allowed to remain in Jerusalem.
However, this agreement was not honored by Omar. We
know that the Jews not only were not disturbed in Palestine,
but a community was organized and flourished in Jerusalem.
Omar, the conqueror of Palestine, was succeeded by
Abu-Bakr. Later Ali became caliph. After the assassina-
tion of Ali, Mu' Awiyah was proclaimed caliph in lliya'
(Jerusalem) in the year 661, and Damascus became the

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128 THE JEWISH QUARTERLY REVIEW

capital. With Mu' Awiyah the dynasty of the Omayyad cal-

iphate began and lasted to the year 750. This dynasty was
opposed by the 'Abbasids, descendants of an uncle of
Mohammed. In 750 Abu-al-'Abbas declared himself caliph
and established his capital in Bagdad. The families of these
two dynasties, the Omayyads and the 'Abbasids were not
Palestinian Arabs, but came. from South Arabia. In 969
the Fatimids (Shiites from Northern Africa) conquered
Egypt and soon afterwards Palestine, but about a century
thereafter, the Saljuiq Turks captured Jerusalem and re-
stored it to the 'Abbasid caliphs. In 1098 the Fatamids
again reconquered Palestine.'8
In the year 1096 the First Crusade was organized to
march on Palestine to retake the holy places from the
Moslems. In 1099 Jerusalem fell before the Crusaders.
The capture of Jerusalem by the Christians was celebrated
by savage butchery of Jews and Moslems alike. For a
while Jerusalem became the center of the Latin Kingdom.
Saladin, in the year 1187, defeated the Crusaders near
Hittin (Lower Galilee) and recaptured Jerusalem, thus
ending the Latin Kingdom. The last hold of Christianity
in the extreme North of Palestine was destroyed by the
Egyptian Mamelukes in the year 1291.
The Mamelukes were a dynasty of slaves of different
races and nationalities who absorbed the power in Egypt.
The word "Mameluke" bears the meaning of slave. For
more than two centuries the Mamelukes ruled Palestine.
Their hold over Palestine came to an end with the advance
of the Osman Turks. In 1517 Selim I captured Jerusalem
and brought Palestine under the empire of the Turks. The
Turks ruled Palestine until October 1917 when General
Allenby captured Jerusalem and brought their domination
to an end.

is See P. Hitti, History of the Arabs, London, 1937.

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 JEWISH RIGHTS IN PALESTINE-ZEITLIN 129

The point of this brief survey of the changing rulers of

Palestine is to indicate that the Jews never left Pal-
estine. For almost a thousand years they had their own
rule-they ruled Palestine. Even after the Jewish state
was destroyed the Jews remained in Palestine, even if at
times their numbers were not great. There was no period
when there were no Jews in Palestine, and however humble
Palestine Jewry may have been at times, the Jews of the
world looked forward to the day when Elijah would blow
the trumpet to herald the coming of the Messiah and the
return of the Jews to Palestine.
The Palestinian Arabs or the Arabs of Trans-Jordania
never ruled Palestine. Palestine had been conquered by the
Arabs who came from the South. As stated above, the
dynasties of the Omayyads and the 'Abbasids were not
natives of Palestine. Certainly the Mamelukes and later
the Turks not only were not Palestinian Arabs, but were
of an entirely different race; they were not even Semitic.
Thus the historical claim of the Jews to Palestine is
not a fallacy, as Ibn Saud maintained in his recent letter
to the late President Roosevelt; they are based on unchal-
lengable historical facts.
Equally unfounded are Ibn Saud's claims to Palestine
as an Arabic country in the same letter: "The Arabs were
the first inhabitants and they dwelt there for a period of
3,500 years before Christ and have remained there since
Christ until the present day. They ruled it alone or with
the Turks for a period of about 1,300 years, whereas the
disjointed reign of the Jews did not exceed 380 confused
and sporadic years." That this is a fantastic claim has
been clearly indicated.
Palestine up to 734 C. E. was never an Arabic country
and was never so considered by geographers and historians.
Josephus as well as the Roman geographer Strabo placed

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 130 THE JEWISH QUARTERLY REVIEW

Arabia beyond the boundaries of Palestine, or as it was

then called, Judaea. On the other hand, the Jews held
sovereignty in the country not for "380 confused and
sporadic years," but from about 1028 B. C. E. until the
year 70 C. E. when Jerusalem fell before the Romans.
And even after the fall of Jerusalem the Jews in Palestine
as we indicated were ruled by their own patriarchs and
the Sanhedrin. Furthermore, as we shall soon point out,
when Palestine became a province of the Roman Empire,
the Jews were considered an associate people.

3. LEGAL RIGHTS

One may say, of course, that Judaism is the only religion

rooted in Palestine and that the Jews have a historical
claim on Palestine. But can one say they have a legal
claim since the country was captured by the Romans?
Did not the title to the country pass from the Romans
to the later conquerors?
When Titus captured Jerusalem in the year 70 C. E.
neither he nor his father Vespasian appended the title
Judaicus to their title of Emperor as was the custom of
Roman victors when they conquered a country.'9 The
reason why Vespasian did not append the title Judaicus
was two-fold. First, Judaism at that time was considered
a religion, and he could hardly adopt the title Judaicus.20
Secondly, Vespasian did not append the title Judaicus
because he did not annex Judaea to the Roman Empire.
Josephus said that the Emperor took Judaea for himself
as a private possession.2, The special tax (fiscus Judaicus)
19 Dio Cassius, 65 Kaf f r' caoroo To /UEJ TOV avTOKpaTOpOS 6ovo,a
apq6mrepot fXaI3oo ro be bi -rot) 'IovacuKov oi'vL5rEpos eaxe.
20 See S. Zeitlin, JQR XXXIV, 2 (1943).
2IJewish War, 7. 6,6 (217), "receiving the country as his private
property ov0 P'yap KaTq,KLOaE' &KEL 7ro6Xu' i6Lwa avT3c Tr?' Xwpac
JWXaTTrW 0 6KraKoUIoLs b6e' ,'6OU a6ro -rfs orpadtas aLaeLque'VoLS
xWpLOJ' 'WKEV EIS Ka-To'K?70L' 6 KaXeZTUa ,s'p 'A,u,uaovs ar'xet 8
TrW 'IEpoLoXv4uWv cTaaLous TprPcKOvTa.

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 JEWISH RIGHTS IN PALESTINE-ZEITLIN 131

that Vespasian levied on the Jews after the War, was levied
not only on the Jews of Judaea, but on all the Jews of
the Empire, even on the proselytes.21a This religious tax
demonstrated the victory of Jupiter over the God of Israel.
Vespasian as the representative of Jupiter on earth,
appropriated the land for himself.

From the Roman historian Tacitus we learn that Titus

insisted that the Temple should be burned as a prime ne-
cessity "in order to wipe out more completely the religion
of the Jews and the Christians." He held, that "these re-
ligions, although hostile to each other, nevertheless sprung
from the same source. The Christians had grown out of
the Jews. If the root were destroyed the stock would
easily perish."22 Thus by the destruction of the Temple,
the Romans hoped to destroy the Jewish and Christian
religions.

The Jews continuing to live in Judaea were not con-

sidered as peregrini dediticii, that is, aliens whose country
had been destroyed and who now had no country. Thus,
when Emperor Caracalla conferred the Roman civitas (cit-
izenship)23 on all aliens, excepting only the peregrini dediticii
who had no country which they could claim as their home,
the Jews were among those who received Roman citizen-
ship. They were even called Romans24 and enjoyed all
the privileges and rights in their land, Palestine. The Jews
lived under their own administration, under an ethnarch,
the head of the Jewish community in Judaea. The Church
Father Origen, who lived in the third century and who

2.a Dio, Epitome LXV; Suetonius, Domitian XII.

22 At contra alii et Titus ipse evertendum in primis templum censebant
quo plenius iudaeorum et Christianorum religio tolleretur: quippe has
religiones, licet contrarias sibi, isdem tamen ab auctoribus profectas; Chris-
tianos ex Iudaeis extilisse: radice sublata stirpen facile perituram. (Frag-
ments of the Histories).
23 Lex Antoniona de civitate.
24 Iudaei Romano. Cod. Theod. II, 1, 8 (398).

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132 THE JEWISH QUARTERLY REVIEW

spent some time in Judaea, observed that the Jews had

their own ethnarch and their own courts.
That the Jews were not considered a conquered people
but rather socii populi Romani, an associate people of the
Romans, can be inferred also from the fact that they had
the privilege of accepting public offices in the Roman gov-
ernment or declining them. This privilege which the Jews
enjoyed, was even incorporated in the Roman law as late
as 321 C. E.,25 a privilege which could not have been enjoyed
by a people who had no country.
That the Jews were an associate people of the Romans
can be also learned from their participation with the Ro-
mans in the war against Persia. When Sapor was victorious
over the Romans and conquered many cities in Judaea,
among them Caesarea, thousands of Jews were killed in
this war; they were killed as Romans. On the arrival of
this news to the Jews of Babylonia, Samuel, (the spiritual
head of Babylonian Jewry), did not tear his garments as
a sign of mourning.26 Since he was a Persian patriot, he
considered the killing of these Jews not as a specific Jewish
catastrophe; they were killed as participants with the
Romans in the war against Persia. The Talmud relates
that King Sapor prided himself on the fact that he never
killed a Jew.27 Apparently, he did not consider the thousands
of Jews killed in Caesarea as Jews; for him they were Ro-
mans.
That the Jews did not lose title to Palestine can further-
more be attested by historical and legal facts. The Jews
continued to exercise the right of owning slaves as well
25 Cunctis ordinibus general lege concedimus Iudaeos vocari ad curiam.
Verum ut aliquid ipsis ad solacium pristinae observationis relinquatur,
binos vel ternos privilegio perpeti patimur nullis nominationibus occupari.
Ibid. 16, 8, 3.
26 M. K. 26a nvrvn 'Iti1-n' '9i'?-n pw "$ rm k P
27H1 6iyp.

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 JEWISH RIGHTS IN PALESTINE-ZEITLIN 133

as the right of manumission,28 which peregrini dediticii did

not have.29 As late as the year 429 the Palestinian Sanhedrin
was still recognized in the Eastern Roman Empire.30 The
authority of the Jewish patriarchs was likewise acknowl-
edged.31 Clearly the Jews enjoyed citizenship, and were
not aliens in their own land.

According to international law, if a power conquers a

country, the title of the country passes from the vanquished
government to the conqueror, either by treaty or even with-
out treaty. If a country, however, was previously con-
quered and its conqueror was afterwards defeated by an-
other power, the later conqueror acquires title to all the
rights and privileges held by the previous government.

Though the Romans conquered Palestine, they did not

annex it to the Empire. When the Persians and later the
Arabs conquered Palestine from the Romans, they occupied

28 According to the Roman law only citizens had the right to own
slaves and the right to manumit them.
According to Eusebius the Emperor Constantine passed a law to
the effect that no Christian should be a slave to a Jewish master on
the ground that it would not be right that those whom Christ had ran-
somed should be subjected in slavery to a Jew. (The Life of Constantine,
IV, 27). Constantine, in passing this law that a Jew could not have
slaves who were Christians, specified the religious reason, but not the
legal. If the Jews were not citizens, the Emperor would have emphasized
the fact that aliens had no right to own slaves.
29 Manumissio vindicata, is a form of manumission by means of in
jure cessio. Peregrinus cannot acquire property by mancipatio. Per-
egrinus, however, enjoyed rights under jus gentium.
30 Comp. Cod. Thed. 16, 8, 29. Iudaeorum primates, qui in utriusque
Palaestinae synedriis nominantur vel in aliis provinciis degunt, quae-
cumque post excessum patriarcharum pensionis nomine suscepere, cogantur
exsolvere.
3' Iudaei Romano ... Sane si qui per conpromissum ad similitudinem
arbitrorum apud Iudaeos vel patriarchas ex concensu partium in civili
dumtaxat negotio putaverint litigandum sortiri eorum iudicium iure pub-
lico non vetentur: eorum etiam sententias provinciarum iudices exequantur,
tamquam ex sententia cognitoris arbitri fuerint ad tributi. Ibid. II, 1, 10.
Thus, in the year 398 C. E., in the time of the Emperors Arcadius and
Honorius, the Jewish patriarchs and the courts were recognized.

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134 THE JEWISH QUARTERLY REVIEW

the country but could not annex the title which the Romans
themselves did not possess. When the Turks conquered
Palestine from the Mamelukes, they, too, held the country
as an occupying power only. Thus the rights of the Arabs
and the Turks to Palestine were based on possession but
not on title. They never conquered Palestine from the Jews,
and the Jews never gave up title to the land.
In conclusion, we may say that Judaism is the only
religion and the Jews are the only people in the world
who, from earliest times to modern days, are identified
religiously, historically and legally with Palestine.

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