Declarations of Interdependence
Understanding the Entanglement of Jewish Rights and Liberties in the Anglo-Atlantic, 1740–1830
HOLLY SNYDER
In April 1807, the town of Trois-Rivières elected a Jew as one of its two representatives to the Legislative Assembly of Lower Canada. However, when Ezekiel Hart arrived at Québec City the following January to take the required oaths of office and assume his seat, his right to serve was challenged on the grounds that two of the three required oaths of office, including the Oath of Abjuration, had not been taken by him and that the third was not executed in the form prescribed by law. In fact, Hart—who had sought legal advice on this point prior to his arrival in Québec City—had attempted to effect a compromise between the requirements of secular and Jewish law by placing his hand on his head (in lieu of retaining his hat) and replacing the word “Christian” with the word “Jewish” as he recited the oath specified under the 1791 Constitution Act. However well-meant, these careful adjustments to legal form were not sufficient to resolve the ambiguities surrounding his status as a Jew. After several weeks of debate, the assembly ultimately concluded that Hart, specifically because he professed the Jewish religion, “ne peut sieger ni voter dans cette chambre” (can neither be seated nor vote in this chamber).1
As fate would have it, the legislature was shortly thereafter dissolved by the governor, and new elections were called. Hart, determined to overcome the barriers that had been set before him, went home to Trois-Rivières to stand again and, in due course, won a majority for the second time. When he returned to Québec City in April 1809, however, he had resolved to take the oath without covering his head, this time using the Christian Bible, and without declining the requirement to swear on his honor “as a Christian,” as specified for the Oath of Abjuration. Yet again, his colleagues in the assembly declined to seat him. When told that Hart had taken the oath “on the Evangelists,” one legislator remarked that as a Jew, Hart was legally incapable of binding himself by means of this oath. Once again, Hart’s right to serve the constituents by whom he had been duly elected—twice—was refused by the assembly.2
This oft-told tale—called “L’affaire Hart”—is well known to historians of Canadian suffrage and of Canadian and American Jewish history. Indeed, its very familiarity is due to the fact that it presents a quintessential conundrum to the liberal mindset. Was Hart the victim of an antisemitic campaign within the assembly, or merely a convenient pawn in the ongoing power struggle among forces contending for political control over the affairs of Lower Canada? Were his foes the Catholics at large? (It seems worth noting that Hart himself thought not, observing that three quarters of his constituents in Trois-Rivières were Catholics who had clearly not found his religion a barrier to his potential for representing their interests.) Or were Lower Canada’s Anglo-Protestants to blame? In fact, those legislators who initially challenged Hart’s right to sit in the assembly were of both French and English, Catholic and Protestant background—as, indeed, were Hart’s supporters. And what had his opponents really intended? To deny place-holding to professing Jews, or to anyone of Jewish descent? At Hart’s first appearance in 1808, it seemed only the former was at play. After all, one Samuel Hart had already been admitted to his place in the legislature of Nova Scotia after a formal conversion to Christianity in 1793.3 But when Ezekiel Hart was refused for the second time in 1809, having eviscerated the palpable evidence of his Jewishness by removing his head covering and agreeing to take the Oath of Abjuration, it was no longer so clear whether it was his adherence to Judaism or his Jewish ethnic identity that formed the stumbling block. The case is indeed complex and mysterious, defying a prima facie interpretation.
FIGURE 6.1. Unveiling of bilingual plaque, Trois-Rivières Québec, 1959, commemorating Ezekiel Hart, whose unfulfilled elections to office are alleged to have inspired full civil rights for all citizens in 1832. Collection source: Canadian Jewish Congress photograph collection PC1-6-266. Repository source: Alex Dworkin Canadian Jewish Archives. Image courtesy of Canadian Jewish Archives, Montreal.
Historical debate over the significance of L’affaire Hart in Canadian history has been hampered by the limited focus on the meaning of these events for Canada. What I propose to do here is to reconsider the events of 1807–9 through an alternate Atlantic lens so as to broaden its overall framing in time and geographical space. This is a tour with three parts: First, it will be necessary to examine the calculus of Jewish sociopolitical standing in English political thought, from the time of the Jewish readmission to the end of the eighteenth century. Second, we will take a closer look at Québec and its Jews in the general context of minority rights in British America during the eighteenth century. Third, I will provide a close reading of the political economy of Lower Canada at the moment of Hart’s election to the assembly in the early nineteenth century. In so doing, I hope to expose some of the sinews that link Ezekiel Hart’s experience to the political condition of Jews throughout British America—and the Atlantic world writ large—including both those in the thirteen former colonies that came to call themselves the “United States” after 1776 and those in the fourteen that remained in the British ambit after the American fracture.
Jews in British Political Thought, 1650–1791
Understanding the Canadian underpinnings of L’affaire Hart requires an overview of how Jews began to figure in British political thought from the time that Britain began to establish its transatlantic colonies in the seventeenth century to the turn of the nineteenth century. This, in some respects, required an entire rethinking of Jewish political status in Britain, as Jews had been expelled in 1290 by edict of Edward I, and it had been unlawful for Jews to live openly in England afterwards. Jews had thus been virtually absent from the British polity at the moment when Britain began to establish its colonies across the Atlantic, where it soon became necessary to decide whether Jews might assist in colonizing these new territories. While Jews occasionally filtered into parts of Britain in the intervening period, they were typically not able to openly identify themselves as professing Jews without risking punishment and deportation. Reconsideration of the status of Jews as potential subjects of the realm came only with the establishment of the Commonwealth government under Oliver Cromwell’s leadership, following the execution of Charles I. Still, the Whitehall Conference of 1655, which brought open discussion of Jewish status to the fore, reached no consensus about whether Jews ought to be readmitted to England, and if so, what their legal status should be. The medieval English law which had deemed Jews to be the bondsmen, and thus the property, of the king—though it continued to play a significant role in legal lore—was no longer seen to be functional in the wake of the Commonwealth’s repudiation of the monarchy and the establishment of a republic governed from Parliament. At any rate, the system of feudal villeinage in which the prior law had been grounded had long since been discarded.4 Englishmen of the seventeenth and eighteenth centuries were thus pressed to create new arguments to justify the legal status they wished to ascribe to the Jews who began to reside in Britain and its colonies in increasing numbers.5
To fully comprehend the significance of arguments made about Jewish legal status, it is worth exploring the immediate seventeenth-century antecedents in England as well as their eighteenth-century application by British colonial jurisdictions in North America. In the European context, the key argument against Jewish political participation was the one leveraged by the Catholic Church at the Fourth Lateran Council (1215), and sustained until its Second Vatican Council of 1962–65, that “since it is absurd that a blasphemer of Christ exercise authority over Christians” Jews must be discredited from holding public offices in the governance of Christian nations.6 This argument, which drew support to the segregation of Jewish populations into ghettos as well as the physical marking of Jewish difference (by means of required apparel in noted colors, or specified items added to apparel, such as badges or hats) across Europe, continued to hold sway in religious circles and was certainly espoused by many believers.7 Nevertheless, its potency abated in the wake of the Reformation, a steep decline spurred both by the growth of mercantilism and by Protestant approaches to the conversion of nonbelievers that diverged sharply from those of the Catholic Church. By the seventeenth century, Protestant theologians were beginning to distinguish between Jews who were hostile to Christianity, who ought to be banished, and Jews who were more friendly and open to discussion. The latter, in this view, might be welcomed, in hopes of eventual conversion and assimilation, which might render them worthy of inclusion in a Christian society. A more trenchant argument against Jewish civil participation now emerged from the standpoint of political economy, building on the commonplace English understanding of Jewish self-governance under halachah, Jewish religious law. From this perspective, seventeenth-century English political theorists of all persuasions argued, as James Harrington put it, that Jews were unlikely to make good citizens, “for they of all nations never incorporate but, taking up the room of a limb, are of no use or office unto the body, while they suck the nourishment which would sustain a natural and useful member.”8 Even supporters of Jewish readmission, such as the theologian John Dury, observed that “the Jewes come into Christian Common-wealths, not as members thereof, but as strangers therein, and yet forme a societie, or kind of Commonwealth amongst themselves.”9 Though they held different positions on the question at hand, Harrington and Dury agreed that the admission of Jews into the English Commonwealth posed certain legal problems. They differed only in how the problems might be handled. Harrington argued that settling the Jews in the margins of the English empire was the only means by which to both obtain profit from their economic activities and also avoid the damage that Jewish distinctiveness would inevitably cause to the English commonwealth were they to be allowed equal access to the heart of the country. Dury, on the other hand, proposed that readmission of the Jews to England was possible, but that “Our state doth wisely to goe warily . . . [because Jews] have wayes beyond all other men, to undermine a State” and, accordingly, they “must be restrained in some things” in order for their admission to have a beneficial impact on the nation.10
While these tracts were purposefully speculative at the time they were originally published in the 1650s, they proved especially influential in subsequent decades as the English began to confront the growing presence of professing Jews both in their expanding overseas empire and in the home countries of the British Isles. It soon became evident that the existing legal precedents that had carried over from the medieval period of Jewish settlement were now politically outmoded, but in the wake of the Whitehall Conference of 1655 the underlying issues did not generate sufficient interest for either Parliament or the Privy Council to make new laws or dictate specific policy recommendations to govern how Jews fit or did not fit into British imperial aims. The ongoing lack of clarity from London left individual colonies to wrestle with the question at hand on their own, which happened only in the most peripatetic manner—when and if Jews happened to appear and claim the rights of British subjects. In this, they already faced stiff competition from the Dutch, who had determined several decades earlier that incorporating Jews into commerce brought significant benefit to the Dutch Republic, both in the Netherlands and in the growing Dutch colonization presence overseas.
An early case of Jews claiming rights under English law occurred in 1684, in Rhode Island (the only non-Puritan colony in colonial New England), when a group of Jewish traders residing in the town of Newport were challenged and disavowed as “aliens” by William Dyer, surveyor general of the colony. The merchants appealed to the Rhode Island General Assembly for legal protection, along with the return of property that had been seized. This case took place despite a much-vaunted guarantee for “Libertie of Conscience” written into the original colony patent that colony founder Roger Williams was able to obtain from Charles I in 1644 (later confirmed in the Rhode Island colony charter granted in 1663 by Charles II). Williams was a noted advocate for the separation of church and state who had himself been cast out of the Massachusetts Bay Colony for his advocacy of religious practice free from interference by the mechanisms of the state. He had written of his particular pride in having orchestrated this then-unique guarantee from the Crown for the infant colony. But though sincere in his advocacy of conscience, Roger Williams simply lacked the power within the colony to make it conform to the interpretation that he had intended when he originally drafted this provision. Upon hearing the petition of the Jews, the assembly echoed the more common understanding of Jews as a people apart, and granted only “as good protection as any strangers being not of our Nation, they [the Jews] being obedient to his Majesty’s laws.”11
In part, perceptions of Jewish separateness were strengthened by, if not derived from, the way in which Jews represented themselves in public discourse. A petition to the Crown of June 28, 1695, for example, claimed to support the interests of “severall of ye Hebrew Nation setled in Jamaica & Barbados.”12 While the petitioning merchants asserted their status as legal denizens under English law, their titular description of themselves as part of a “Hebrew Nation” that had “settled” in the Caribbean colonies did not challenge, and could only serve to reinforce, the prevailing English notion of Jews as outsiders and therefore marginal to the English polity. As David Katz has noted, this perspective began to change only in the wake of the Glorious Revolution in 1688, when the ascension of the Dutch prince William of Orange to the throne of England as William III altered English perspectives on the viability of Jews as English subjects, as well as Jewish perspectives on what residence in England and the prospect of becoming an English subject had to offer.13
The Toleration Act of 1688, enacted in the wake of the Glorious Revolution, tacitly extended the official right to worship to Jews, but excluded them (along with Protestant sects that dissented from the Church of England, Catholics, and Unitarians) from office-holding. Nevertheless, in the decades following its enactment, the social, intellectual, and cultural atmosphere in England became more accepting of a Jewish presence. The enlarged sense of tolerance eventually led to the 1714 publication of an unusual tract advocating for the naturalization of Jews in Britain and Ireland, written by the Irish rationalist and freethinker John Toland. Toland had previously advocated for a measure designed to naturalize Protestants from foreign places in 1709, and this new tract was in keeping with his interest in shifting British national policy toward an expanded notion of subjecthood for Hanoverian Britain. Although the 1709 measure was repealed a year after its passage, and his 1714 tract, Reasons for Naturalizing the Jews, remained something of a curiosity, Toland had nevertheless stimulated discussion among government officials of key issues surrounding naturalization. Decades later, and partly under the pressures of administering its varied overseas colonies in the Americas, some of which had persistent difficulties in attracting permanent settlers, Toland’s ideas were incorporated into a new law, popularly known as the Plantation Act or the Naturalization Act—officially designated as the Act of 13 Geo. II (1740), c. 7—that authorized the naturalization of both Jews and foreign-born Protestants. But Crown policy continued to hold onto Harrington’s notion that Jews and other foreigners should be kept at arm’s length, insofar as the act applied only in Britain’s American colonies and only to those Jews and foreign Protestants who had been resident there for a minimum of seven years. Although an attempt was made by Parliament to pass a modest bill for the naturalization of Jews in England in 1753, public outcry about the prospect of Jews taking on the mantle of Englishmen was so loud that it was forcibly repealed within a year. The effect thus remained that Jews had greater rights and better claim to the privileges of his majesty’s subjects in the American colonies than they did in London.14
Lower Canada and the Context of Minority Rights, circa 1800
By way of setting L’affaire Hart into the larger context of British colonization in North America, it may be useful to examine how the general question of minority rights and privileges was handled in other British colonies. Much notoriety has been attached to the Puritan colonies in New England (Massachusetts Bay, Plymouth, Connecticut, New Haven, and New Hampshire) during their founding phase in the seventeenth century, for their harsh strictures against anyone who did not conform to Puritan beliefs and behaviors. As expressed by Rev. Nathaniel Ward, author of the Massachusetts Body of Liberties, “all Familists, Antinomians, Anabaptists and other Enthusiasts shall have free Liberty to keepe away from us, and such as will come to be gone as fast as they can, the sooner the better.”15 A litany of tract literature soon emerged to document the persecutory treatment meted out to nonconformists of all varieties by Puritan authorities, and in particular to a wide assortment of dissenting Protestant denominations—notably Quakers, Baptists, and Antinomians—who would ultimately join Roger Williams to found the new colony of Rhode Island. Quakers, Catholics, and Jews were all, at times, proscribed by law in the English Caribbean colonies, where the Church of England was designated as the established church. As Patricia Bonomi observes, toleration in the seventeenth and eighteenth centuries could be grudging at best, even where leaders declined to establish an official colony church, as in Maryland, so as to leave room for the toleration of Catholics and others whose faith might otherwise be readily proscribed; or, where the religious diversity of the colonists resulted in any proposed establishment of an official church having no practical effect, as happened organically in New York.16
In the wake of the Revolutionary War, minority rights and privileges took on special significance in the newly formed United States, as legislators attempted to work out ways to unify a disparate population within a singular political framework. Indeed, Congress amended the federal Constitution to, among other things, adopt a provision based on Virginia’s Statute of Religious Freedom, authored by Thomas Jefferson, to guarantee freedom of religion to citizens of the new nation. But guarantees at the federal level were not routinely adopted by the individual states. Indeed, some were roundly rejected. North Carolina provides a case contemporaneous to L’affaire Hart that both parallels and diverges from Ezekiel Hart’s experience, though the two cases have never been compared. Like Ezekiel Hart, North Carolina’s Jacob Henry was twice elected to a seat in the state assembly. In 1809, at the beginning of his second term, a fellow legislator rose to move that Henry’s seat be vacated because Henry “denies the divine authority of the New Testament, and refused to take the oath prescribed by law for his qualification.” The following day, the North Carolina assembly held a debate on the matter. But it is there that the similarities between the two cases end.
During Henry’s first campaign to represent Carteret County in 1808, no one seems to have noticed that he was a Jew, although the North Carolina constitution of 1776 explicitly limited office-holding to Protestants. Unlike Ezekiel Hart, Henry served his first one-year term in the house without incident and was reelected to the seat for the following term. And as a sitting member, Henry also had access to the floor of the house. After having been challenged by fellow legislators, Henry (again, unlike Hart, who was limited to submitting a demure petition seeking the right to occupy his seat) made an impassioned plea for “the natural and unalienable right to worship Almighty God according to the dictates of . . . Conscience,” pointing to the apparent conflict between the declaration of rights and the state constitution, which had been adopted just one day apart. The speech was long considered such a model of eloquence that in 1828 it was included in Samuel Clark’s The American Orator, a textbook regarded as “the means of instilling into the minds of youth, the principles of civil and religious freedom.” Henry’s fellow legislators were evidently unimpressed by his arguments as to conscience as the religious test remained on the books until a new state constitution was written in 1868. Nevertheless, Henry kept his seat because the legislators fashioned a unique interpretation of the state constitution that construed the prohibition on non-Protestants serving in the “Civil Department” as having no application to the legislature. This allowed Jews and Catholics to serve as legislators, but continued their exclusion from office in the executive and judicial branches of state government.17
A later case that attempted to utilize and build on the example set by Ezekiel Hart’s election to the Assembly of Lower Canada in 1808 took place in Jamaica, just over a decade after Hart was denied his seat for the second time. There, in July 1820, a group of liberal Jews in Kingston staged a test of the political waters for attaining the right to vote by sending one of their number to the polls to cast his ballot in the local election for assembly. The man in question, Levy Hyman, was possessed of more than enough real estate to satisfy the property qualifications established in the voting laws set by the Jamaica Assembly. Hyman’s appearance at the polling booth on July 5 was orchestrated by the group, who preceded their “assault” on the polling station with a public campaign to elevate awareness of Jewish claims to the rights of English subjects. During the four months prior to the election, members of the group sent letters to the island’s newspapers in which they argued, using the rhetoric of English liberty, that the denial of the vote to Jews was a violation of both Jamaican law and the English Constitution. In addition, they made personal visits to each Jewish freeholder to solicit his appearance at the polls.18 When the events of July 5 culminated in the denial of Hyman’s right to cast his ballot, the advocates sprang to work: they pressed the wardens of Kingston’s Princess Street Synagogue to take action on behalf of their congregants, they formed a committee to assert the Jewish right to the franchise, they encouraged Jewish freeholders to attempt casting their ballots at subsequent elections, and, informed that Levy Hyman intended to prosecute his claim under the Jamaican election laws against the deputy marshal who had refused to accept his poll, they set up a subscription fund to help him cover the costs of legal proceedings.19 These efforts were doomed to failure in the short term, having been successfully circumvented by actions undertaken by the ruling elites—not only in the assembly and the island’s courts, but also in the synagogue vestry—to resolve the question against the Jewish vote. Yet they represented the commencement of a long-term strategy that would, eventually, culminate in the passage of a law extending the franchise to Jamaican Jews in 1826.20
From the Canadian perspective, what is interesting about this attempt of Jamaican Jews to gain ground with respect to the exercise of voting rights lies in where both the advocates and the opponents found their justifications. In many respects, the rhetoric of the Jamaican newspaper debate is remarkably similar to the one that had taken place in Lower Canada a decade before. As in Lower Canada, the opponents of Jewish voting in Jamaica were able to capitalize on the ambiguous status of the Jews, which had never been explicitly defined by law, to overcome established precedents and even legal code leaning toward their Emancipation.21 Moreover, the issue of Ezekiel Hart’s election to the Assembly of Lower Canada served the Jamaican proponents as an icon of what was possible in a liberal British Atlantic world. The key exchange was elicited when the editor of the St. Jago Gazette, espousing the position of the dutiful colonial, declared
no man is eligible to vote at an election, who is not equally so to be elected himself. We have great respect for many of the Jewish nation in this island . . . but they may rely that any attempt to encroach on long established custom in so important a matter as that of voting for representatives in Assembly, cannot succeed. Until the Mother Country shew the example, we cannot swerve from accustomed practice.
In response to this diatribe, a writer using the pen name A JEW gave chapter and verse in the pages of the Kingston Chronicle, pointing out that Catholics and small landholders might vote on the island, though they could not hold elective office. Moreover, he retorted that the situation in Britain and its remaining American colonies was not as the editor had presented it:
With regard to the British Parliament recognising the right of Jews to vote, I can confidently assert, that at Westminster and Middlesex the right of those Jews who have voted have never yet been disputed. In Canada, they not only vote, but also sit in the Provincial Parliament; as in 1808, at the election for the town of Three Rivers, which was sharply contested, Mr. Ezekiel Hart, a Jew, was chosen to serve for the town by a large majority, (vide Mr. John Lambert’s Travels in Canada, in 1806, 7, and 8, page 493). Here, nothing has as yet been produced against the eligibility of a Jew’s voting, but . . . resolutions and custom.22
To bolster that broad claim, the anonymous author of the letters reporting these events to a friend off the island claimed to have knowledge that Jews were already voting in English elections in 1820, and during the trial of Levy Hyman’s case in February 1821 an attempt was made by Hyman’s counsel to introduce the testimony of an English Jew who said that he himself had voted several times. Whether out of ignorance or rhetorical convenience, the advocates appear to have overlooked the fact that Ezekiel Hart was neither admitted to the assembly nor allowed to serve his constituents.
A second theme that has been largely ignored by historians is the potential link between the civil Emancipation of Catholics and that of the Jews. From the perspective of historians of Canada and Britain, this link is easy to miss. After all, Lower Canada’s Catholics had had their political rights confirmed twice by legislative enactment—first by the Québec Act of 1774, and secondly by the Constitution Act of 1791—while Catholics in England and Ireland continued to suffer substantial disabilities until 1829.23 In the Jewish case, by contrast, developments in England and Canada with respect to office-holding, if not voting, appear to have followed parallel tracks.24 The two cases might appear, at first blush, to have little to do with each other. But here, again, viewing the Canadian experience through the wider lens of the British Atlantic allows us to see that the situation of Catholics and Jews was indeed intertwined in the last decades of the eighteenth century and the early years of the nineteenth century. As Aaron Hart, Ezekiel’s father, had discovered on settling himself in in Trois-Rivières in 1764, the preceding decade of war had both impoverished the francophone population and diminished the ability of religious communities to recruit new members and maintain their existing properties, which the British hoped to gain by escheat as the religious brethren died out. Moreover, Catholics were effectively barred from holding elective office in these years, as British law specified the swearing of prescribed oaths that were unacceptable to professing Catholics. In effect, les Canadiens—the francophone Catholic citizens of Québec—found themselves in much the same position as the Jews in British colonies, that is to say, hostage to policies created in London but not necessarily adhered to by English politicians who ran local affairs in Québec. By the early nineteenth century, the freedoms promised by the Quebec Act had come to constitute something of a golden cage.25
Two references to my Jamaican example serve to underscore this point. First, as previously noted, the newspaper polemicist who styled himself A JEW pointed to the fact that Jamaican Catholics were already able to vote in local elections, thus drawing a direct connection between their condition and his own. Second, our detailed knowledge of the effort to effect the Jewish franchise in Jamaica comes from the publication of a series of private letters written by one of the advocates to a non-Jamaican friend. This volume was in print only briefly and is now exceedingly rare. Published by one A. MacKay Jr. in Belfast, the circumstances of its place of imprint are odd for a story that is purportedly about Jamaican Jews. The Jewish population of Belfast was inconsiderable at the time of its publication, and Northern Irish economic interests in Jamaica were scarcely worthy of note. The pamphlet appeared in 1823, however, at the height of the debate over Catholic Emancipation in the British Isles.26 This, I believe, is a piece of evidence that makes an important link between the advocates of Catholic Emancipation and those for Jewish Emancipation. And, in fact, evidence from England and the United States suggests that the fate of Catholics and Jews was frequently linked through the late 1820s, although civil Emancipation was not delivered to them as coequal after that point. Both British and British colonial laws that disfranchised non-Protestants acted equally to disbar Catholics and Jews. In England, there was the requirement to take the Anglican sacrament in order to obtain full naturalization as an English subject—which remained active until finally removed from English naturalization laws in 1826. Only when the seventeenth-century Test and Corporation Acts were finally repealed in 1828 did the political condition of Anglo-Catholics diverge from that of the Jews, when a last-minute amendment to the bill of repeal continued the requirement that public officeholders make oath “on the true faith of a Christian.” The formal Emancipation of Roman Catholics the following year meant that Jews were still excluded from full political participation, a situation that would persist into the 1850s. As Lord Chancellor Broughton put it in 1833, “His Majesty’s subjects professing the Jewish religion were born to all the rights, immunities and privileges of His Majesty’s other subjects, excepting so far as positive enactments of law deprive them of those rights, immunities and privileges.”27
In Rhode Island, Jews and Catholics alike had been disenfranchised by a mysterious statute that made its first appearance in the Rhode Island Digest of Laws in 1719 and explicitly banned non-Protestants from voting or holding elective office in the colony.28 This purported statute appears to have been the wholesale fabrication of one man, Richard Ward—then secretary and general recorder for the colony, and a confirmed Seventh Day Baptist—who compiled the Digest of Laws at the order of the General Assembly, and apparently did so without meaningful supervision.29 In March 1762, it became the principle basis on which the Newport Superior Court of Judicature (with Samuel Ward—son of Richard—presiding as chief justice) denied the petition of merchants Aaron Lopez and Isaac Elizer for naturalization under the terms of Parliament’s Naturalization Act of 1740.30 The official repeal of this fictitious statute as to Catholics in 1783 is said to have been due to the state’s gratitude for the participation of French forces in the liberation of Rhode Island from British occupation during the war. In the minds of members of the Rhode Island General Assembly, at least, no such thanks were owed to Rhode Island’s Jews, who had to wait another fifteen years before a new statute was enacted to reassert and guarantee religious freedom statewide, finally allowing for the franchise to extend to them.31
Local Identities and the Politics of Lower Canada in the Nineteenth Century
Having set the dual contexts for the ambiguity surrounding the possible role for Jews in British political economy and the more tangled question of minority rights, we now return to the specific case of Ezekiel Hart’s election to represent Trois-Rivières and the subsequent events of 1808–10 in Lower Canada. And here, it is important to unpack a set of facts surrounding these events, facts that are seldom considered as part of the telling of Hart’s story.
The acquisition of Québec in September 1759 brought to Britain issues of governance that the British had not confronted in other American colonies that the British won by conquest. The most trenchant of these was a large population of Euro-American colonists who, being proudly francophone and Catholic instead of anglophilic and Protestant, did not conform to any of the existing models for British colonial subjects. By the early 1770s, it became clear to Parliament that certain expectations would need adjustment if the goal was to successfully absorb Québec’s large Catholic population and its existing French administrative structures into Britain’s transatlantic empire. The Québec Act of 1774 (14 Geo. III c. 83), the end result of these considerations, guaranteed the free exercise of Catholicism and the restoration of French civil law in Québec, resolving some of the pressing administrative tensions.32 In the wake of the American Revolution, Britain made further adjustments to governance in Québec through the 1791 Constitution Act (31 Geo. III c. 31), dividing Québec into two separate entities, Lower Canada and Upper Canada. The primary purpose of these changes, however, was less to protect the unique identity of the francophone population of Québec than to accommodate the growth of an anglophone community in Canada. Thus, while both of the newly created provinces would have constituent assemblies on the British model, and both would have an intermixture of francophone and anglophone population, Lower Canada would remain primarily French, while Upper Canada, comprising the underdeveloped western side of the original colony, was designated for future anglophone population growth—not only for the newly arrived distressed loyalist refugees driven out of the United States in the course of the war, but also for new emigrants coming straight from Britain. Yet, as Fernand Ouellet notes, the Constitution Act left in place the existing French customs in commerce, despite demands from English merchants for the establishment of English commercial law in their stead. In Canada, if in no other colony, British administration aimed to respond in nimble fashion to the competing claims of British subjects.33
Even as these changes to the administrative infrastructure of Québec were being set in place, the colony also faced economic consequences from structural shifts in the underlying fundamentals on which growth and commerce had for so long relied. Ouellet points to a long period of fluctuation lasting from 1793 to 1815, characterized by rapid price inflation accompanied by productive peaks in both the fur trade and agricultural exports from Québec, followed by contraction in the fur trade and a steep decline in Québec’s agricultural exports. The rise of the timber trade helped to ameliorate the economic pain, but overall the trajectory of Québec’s economy after 1802, buffeted by poor harvests and public health epidemics, had the trappings of inherent instability leading to economic depression.34 These economic stresses were mirrored in emerging political tensions among Britain, the United States, and Napoleon’s France that arose from long-standing disputes over international trade and national sovereignty.
The political situation within Québec was equally fraught. In 1774, the Québec Act had secured certain linguistic, legal, and religious concessions for the francophone population, while at the same time supporting the growing class divide between the landholding seigneurs and the rising middle class comprised of elite professionals and the mercantile bourgeoisie. After the reforms of the Constitution Act, which left key elements of Québec culture intact, many francophone Canadians began to see distinct advantages to British constitutional forms and parliamentary institutions. Influenced by ideas fomented in France and the United States, as delivered through the pages of newly established francophone journals such as La Gazette du commerce et littéraire de Montréal (1778–79) and its successor La Gazette de Montréal (1785–94), the new Canadien elite began to follow Encyclopedist ideas about governance and to philosophize about the advantages of science and freedom of the press. Nevertheless, the excesses of the French Revolution also led them to appreciate the particular advantages of the parliamentary system that Britain had delivered via the Constitution Act and the avenues it offered that would permit them to advocate for francophone interests.35
This was the political context of Lower Canada at the time when Ezekiel Hart determined to seek a seat in the Assembly of Lower Canada, which he first attempted in 1804. In making this decision, however, Hart was not thinking of the big picture of local politics. Instead, Hart drew on his personal context, as a Jew who was also a natural-born subject of the British Crown, born and raised in the town of Trois-Rivières where his father was both a notable landholder possessed of several seigneuries and religiously observant. His decision also relied heavily on the tutelage of his older brother, Moses, in every possible way an obstreperous, uncontainable man with political ambitions he had no realistic hope of fulfilling on his own account. His father had even warned Moses against dabbling in politics, fearing that Moses “would be opposed as a Jew” and admonishing that Moses would find no support from either the courts or the politicians should he try. Ezekiel’s first run for office did not succeed. But by 1807 an incumbent in one of the two seats for Trois-Rivières had died, leaving the seat open, and he decided to make a second run. This time, he obtained a majority by the thin margin of two votes.36 Unsure exactly how to proceed to assume his seat from that point, Hart sought the advice of an anglophone lawyer. While he befriended and helped his francophone neighbors, Hart—like his father before him—cultivated contacts among the anglophone population for the administrative benefits this would bring. His father had, after all, arrived in Canada with the British Army, accepted their patronage for his trading enterprise, and soon found that his economic success relied on those contacts. As Ezekiel Hart sought support for his struggle to take the assembly seat he had fairly won, he found ready allies among Lower Canada’s anglophone minority, among them James Henry Craig, the British governor of Lower Canada. Craig, though newly appointed to the post in 1807, had by then spent more than three decades as an officer in the British Army, serving throughout North America between 1773 and 1781, and thereafter deployed to Ireland, the Continent, Africa, and India prior to his appointment as governor. Observers remarked that as a soldier, he was reportedly hot tempered, demanding, and grandiloquent, while also generous, devoted to duty, and loyal to his friends. While these qualities had served him well in the army, his lack of tact and diplomatic skill, combined with chronic illness and an overreliance on self-serving advice from anglophone merchants, made his tour as governor disastrous. Craig’s limited focus on what would best promote British colonization within Canada and his deep antipathy toward the French quickly alienated the Canadien elite and put a target on his back for the Parti Canadien.37 But during Ezekiel Hart’s struggle to assume his seat in the assembly, Craig, though initially reluctant to intercede, nevertheless proved himself a friend and supporter.
Viewed from this perspective, we can see that the case of Ezekiel Hart was hopelessly entangled from the outset in the fraught struggle of the French Catholic Canadiens for political authority and civil equality in Lower Canada, a tense encounter between a divisive and deeply unpopular British governor and an incipient francophone political party that represented a majority of the population but suffered from its own internal division over tactics, between Memorialists willing to accept fewer rights if doing so preserved an antiquated notion of their cultural identity and Constitutionalists, led by Pierre-Stanislas Bédard and his new young colleague Louis-Joseph Papineau, who sought to push the anglophone minority to acknowledge francophone equality, both politically and culturally, by the terms of the very Constitution Britain had imposed in dividing the original province in two in 1791. As respected as Hart may have been by his Canadien neighbors and constituents in Trois-Rivières, his local popularity meant nothing to his Canadien colleagues in the assembly, who viewed the world through a larger geo-political lens in which the anglophone elite, with Craig at their helm, sought only to undermine the authority of francophone legislators and deny the francophone citizens of Lower Canada the promise of equality guaranteed under the Constitution Act. Hart, they perceived, was a baked-in ally of the very governor who had thwarted them at every turn and unabashedly made himself their enemy. They did not need to stretch far to find the evidence of Hart’s complicity in Craig’s agenda. It was amply evidenced by Hart, in 1809, not only having entertained the governor in his home but also having named his newborn son James Henry Craig, in the governor’s honor. What more proof could the Canadiens possibly have needed that Hart was in the governor’s pocket? In any case, Hart had already provided evidence of his lack of interest in francophone political interests when he declined to vote for the preferred candidate of the Parti Canadien on the occasion of choosing a speaker for the assembly in 1809.38
It is tempting, with the hindsight of the twenty-first century, to look back on the struggle of Ezekiel Hart and other Jews in British America both to vote and to seek and serve in elective office as part of a larger revolutionary movement toward democratic republicanism. In fact, the path toward civil equality for Jews in the Anglo-American and francophone portions of the Old and New Worlds was tortuously twisted and could better be described as checkerboard or patchwork than linear in nature. We would do well to heed the cautions implicit in some of the texts discussed here. In the case of Jamaica, for example, the advocates seem to have felt sharply constrained from citing two examples of places where rights for Jews had already been enlarged: France and the United States. They could hardly have raised France as an example of enlightened politics. The disdain for the Terror among British intellectuals, coupled with deep-seated fear among Anglo-Jamaicans of a Jacobin slave uprising similar to that of the 1791 revolt in nearby Saint-Domingue, discredited any reference to the Declaration of the Rights of Man from the outset. Jamaican Jews were further discomfited with using the French as a model for civic humanism by the knowledge that they had already been implicated by negative association with French Jacobinism. Just twenty years earlier, a French Jew named Isaac Yeshurun Sasportas had been captured in Jamaica while attempting to foment a slave revolt and had been summarily hanged in a public spectacle on the Kingston parade.39 The United States, though not as problematic an exemplar in Jamaica as France, was hardly a better one for advocating Jewish rights. While ratification of the federal Constitution meant that Jews could vote in federal elections in the United States by the 1790s, the individual states had been slow to follow suit. Thus, in 1820, Jews could vote and hold elective office in some states (New York, Pennsylvania, Virginia, Georgia, and South Carolina, for example) but not others (Maryland, Massachusetts, New Jersey, and New Hampshire).40 The patchwork growth of Jewish rights in the United States, coupled with the unsavory fact of Britain’s tense relationship with the former colonies—rendered into open warfare between 1812 and 1815—made the United States itself a less than compelling model of republican principle for their intended audience. Instead, the advocates of civil rights for Jamaica’s Jews chose to invoke the sacred authority of Britain’s ancient constitution, memorialized by popular English political writers at both ends of the political spectrum, from Coke to Locke and Burke, using it as a tool to expand on the general atmosphere of rights and liberties. In furtherance of their cause, they cited Canada and England itself as their exemplars, rather than France and the United States. In effect, they were highlighting not Jamaica’s capacity to make its own political choices, but its very interdependence with Britain and the remaining British colonies in the Americas.
Nevertheless, the vignettes presented here do offer some clues as to the efficacy of strategic interventions. In North Carolina, Jacob Henry had a multipronged attack to serving in the assembly, succeeding as much because he sought common cause with the minority Catholics in the state, who had also suffered the sting of proscription by virtue of their religion, as well as because he was an accomplished orator whose eloquence impelled his Protestant colleagues in the assembly to bend the exclusionary rules just enough so as to craft an exception. And in Jamaica, although the advocates were not successful in achieving the right to vote by forwarding the claims of Levy Hyman in 1820, they nevertheless brought the issue to light by working as a group to foment public discussion in ways that just a few years later, resulted in a bill for Jewish voting that passed in the Jamaica Assembly in 1826, was approved by the Crown in 1831, and articulated arguments that perhaps aided the cause of Catholic Emancipation in Britain. In this regard, L’affaire Hart can be read as a strategic failure on the part of Ezekiel Hart. Even with a good heart, excellent connections, and the best of intentions, Hart’s lack of experience in politics was his Achilles heel, and he proved himself inept where it mattered most. He relied overmuch on his francophone constituents in Trois-Rivières and his anglophone connections to carry the day for him in the assembly, and foolishly neglected to build bridges to other legislators representing majority francophone districts. But, most importantly, Hart failed to find common ground with the francophone majority in the assembly or to court the support of the Parti Canadien at the very moment when its members were articulating an agenda for the expansion of civil equality in Lower Canada. That his refusal by the Assembly of Lower Canada was partisan and not personal is attested by the fact that his own son, Samuel Bécancour Hart, successfully petitioned the Assembly of Lower Canada in 1831 to remove the legal bars to Jewish office-holding applied by the British colonial government, with the full support of Louis-Joseph Papineau, then speaker of the assembly, and the assembly’s francophone majority.41
In discussing L’affaire Hart, it is therefore most important to point to the position of Canada as the only place in British America where a majority of the population were both francophone and Catholic, creating an identity of intersectional minority status. Since the 1960s, francophone historians of the “Two Canadas” school, led prominently by Jean-Pierre Wallot, have made valiant efforts to speak to the position of the Canadiens during the critical period that is our focus here (1791–1815) in navigating the shifting ground beneath their feet among the geopolitics of British, French, and American interventions in Lower Canada. But their message has long been buried within a historiography that put its principal efforts into building a master narrative for a unified Canada. In the 1970s, Canadian historiography took up the banner of “limited identities” in an attempt to encapsulate the complex ways in which nationalization affected, and was effected by, Canada’s diverse ethnicities. This was done in the face of the rising Parti Québecois. With its end goal of national sovereignty for Québec and its strong advocacy of separatism, the PQ drove public fears that Canada itself might be cleaved into separate pieces. But as an approach to history writing, “limited identities” proved to be of limited utility, balkanizing Canadian historiography rather than contributing to an inclusive national narrative.42 L’affaire Hart provides us with an opportunity to revisit this buried historiography of francophone Canada in its most politically transformative period, and restore its unique perspective on Canada as an emerging entity within the context of the broader British colonial world. Using L’affaire Hart as our lens gives us the opportunity to see the ways in which Jews were easily entangled in the tectonic movements of British adventures and countertensions in the Americas. In serving that role, it should also highlight for us the trajectory of a broader intersectional discourse about rights and liberties then taking place both within and across the British Atlantic.