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 i-UBRARYQ.r 
 
 . .
 
 THE ORGAN 
 IN THE SYNAGOGUE. 
 
 An Interesting Chapter in 
 the History of 
 
 REFORM JUDAISM 
 In America. 
 
 By Rabbi Barnett A. Elza*. 
 
 Not once alone in recent years have the 
 Courts been invoked to settle disputes of 
 a purely religious character. In this re- 
 spect, too, history has a curious way of 
 repeating itself. The accidental stumbling 
 across an old volume of South Carolina 
 Law Reports has furnished me with a 
 full account of what was. without doubt, 
 the ablest and most hotly contested case 
 of the kind on record. It is one of the 
 landmarks in the history of Reform Juda- 
 ism in America, and is to be found in 
 Richardson's South Carolina Law Re- 
 ports, Vol 2, pp 245-286: The State vs 
 Ancker. 
 
 The spirit of progress was first mani- 
 fested in the Synagogue of Charleston in 
 1824, when the "Society of Reformed 
 Israelites" was organized. The distin- 
 guished Isaac Harby, one of its leading 
 spirits, and whose Anniversary Address, 
 in 1825, has come down to us, had removed 
 to New York in 1828. His loss must have 
 been severely felt, but the movement he 
 had helped to inaugurate continued till 
 about 1839 or 1840, when it came to an end, 
 its members reafflliating with the old con- 
 gregation, Beth Elohiro.
 
 The old Synagogue had been destroyed 
 by the great ftre of 1838. It is interesting 
 to note that amongst the many things I 
 recently discovered is a large oil pain-ting, 
 at the back of which is this inscription: 
 "Interior of K. K. B. E., of Charleston, S. 
 C., destroyed by the great fire of April, 
 1838, painted from recollection and dedi- 
 cated to the members of that congrega- 
 tion by Solomon N. Carvalho." This Syna- 
 gogue the one that is still used by Beth 
 Elohim was rebuilt in 1840. As just men- 
 tioned, considerable accession to its mem- 
 bership was made by the reaffiliation of 
 the members of the "Society of Reformed 
 Israelites." Though this Society had now 
 ceased to exist, its spirit was still alive. 
 The time seemed favorable, and a move 
 was made to introduce an organ into the 
 Synagogue as an accessory to worship. 
 This was the first organ ever introduced 
 into a Jewish place of worship in America. 
 This innovation, however, was stoutly re- 
 sisted by many of the older members, but 
 the progressive party, being now in the 
 majority, carried the day. The minority 
 withdrew and worshipped elsewhere, and 
 in 1844 carried the case to the Courts. The 
 case was argued before Judge Wardlaw 
 in 1845, the most brilliant legal talent of 
 the day being arrayed on either side, King 
 & Memminger for the appellants, and 
 Petigru & Bailey, contra. The dominant 
 party gained the verdict, which was 
 affirmed when the case reached the Court 
 of Errors and Appeals in 1846. The opin- 
 ion- was delivered by Judge Butler and is 
 a magnificent document. One marvels at 
 the acumen therein displayed. Though the 
 question of the organ is no longer a living 
 question with us, there are questions of 
 principle involved on which the Court 
 passed, which questions are of perennial 
 interest. 1 therefore, reproduce part of
 
 the opinion. Tt is worthy of careful study, 
 even at this late day: 
 
 "It Is almost impossible to reduce mat- 
 ters growing out of a difference of opinion 
 to such a definite form as to subject them 
 to judicial cognizance. Rights and fran- 
 chises are such matters as have legal ex- 
 istence and may be protected by law. 
 Speculative disputes must be left, in some 
 measure, to the arbitrament of opinion. To 
 suppose that an uninterrupted harmony of 
 sentiment can be preserved under the 
 guarantee of written laws and constitu- 
 tions, or by the application of judicial au- 
 thority, would be to make a calculation 
 that has been refuted by the history of 
 all institutions like that before us. Neith- 
 er is it practical to frame laws in such a 
 way as to make them, by their arbitrary 
 and controlling influence, preserve, in. per- 
 petuity, the primitive identity of social 
 and religious institutions. 
 
 "The granite promontory in the deep 
 may stand firm and unchanged amidst the 
 waves and storms that beat upon it, but 
 human institutions cannot withstand the 
 agitations of free, active and progressive 
 opinion. Whilst laws are stationary, 
 things are progressive. Any system of 
 laws that should be made without the 
 principle of expansibility, that would, in 
 some measure, accommodate them to the 
 progression of events, would have within 
 it the seeds of mischief and violence. 
 When the great Spartan law-giver gave 
 his countrymen laws, with an injunction 
 never to change them, he was a great 
 violator of law himself. For all laws, 
 however wise, cannot be subjected to 
 Procrustean limitations. Cesante ratione 
 cessat lex is a profound and philosophi- 
 cal principle of the law. These remarks 
 are more particularly true In reference to 
 matters of taste and form. Let the oW- 
 
 214.67OB
 
 est member of any civil or religious cor- 
 poration look back and see, if he can, In 
 any instance, trace the original identity 
 of his institution throughout its entire 
 history. Those who now, in the case be- 
 fore us, insist with most earnestness on 
 a severe observance of ancient rites and 
 forms would hardly recognize or under- 
 stand the same, as they were practiced 
 by their remote ancestors, who founded 
 the Synagogue. The Minhag Sephardm 
 was a ritual of Spanish origin; and, al- 
 though it may yet obtain in different coun- 
 tries, yet how differently is it observed. If 
 two Jewish congregations, one from Po- 
 land and the other from Spain, were to 
 be brought together, whilst professing to 
 be governed by the same rituals, they 
 would probably find themselves unable to 
 understand each other in their observance* 
 of them. 
 
 "The Jews in every part of the world, 
 by whatever forms they may be governed, 
 could, no doubt, recognize the general 
 spirit and prevailing principles of their 
 religion to be essentially the same. But 
 in mere form a resemblance could not be 
 traced with anything like tolerable uni- 
 formity. 
 
 "As practiced and observed in Charles- 
 ton in 1784, and for many years afterwards, 
 exercises in Spanish were connected with 
 It. They have been long since discontin- 
 ued; long before the commencement of 
 this controversy. Religious rituals mere- 
 ly, not Involving always essential princi- 
 ples of faith, will be modified to some ex- 
 tent by the influence of the political insti- 
 tutions of the countries in which they are 
 practiced. In a despotism, where tolera- 
 tion is a sin to the prevailing religion, re- 
 ligious exercises will be conducted in se- 
 cret or in occult forms. Faith and doc- 
 trine may take refuge in these for safety.
 
 On the contrary, In a country where tol- 
 eration is not only allowed, but where per- 
 fect freedom of conscience is guaranteed 
 by constitutional provision, such devices 
 will not be resorted to. Language itself 
 is continually undergoing changes; clum- 
 sy expressions of rude language will give 
 way to modern refinement. There are 
 those in every church who would be 
 shocked at the change of expression in re- 
 spect to the tablets or books that contain 
 the prayers and more solemn forms of re- 
 ligious rituals. At this timo there are 
 many who oppose any change of style in 
 the editions of the Bible. It is not sur- 
 prising that those who have been accus- 
 tomed to one form of expression should 
 have associations with it that they could 
 not have with another. And it is so of all 
 religious forms and ceremonies. The feel- 
 ings of such persons should never be treat- 
 ed with indifference or rudeness. They de- 
 serve respect and are to be regarded as 
 useful checks on reckless innovation. 
 Matters of this kind must necessarily be- 
 long, and should be committed, to the ju- 
 risdiction of the body that has the right of 
 conducting the religious concerns of ec- 
 clesiastical corporations. Charters are 
 granted to such corporations, upon the 
 ground that they can carry out their ends 
 with greater efficiency than if they were 
 left to individual exertions and the opera- 
 tion of the general laws of the land. The 
 parties before us who are opposed to re- 
 form contend that dangerous changes 
 have been made in the form of their wor- 
 ship, particularly as it respects the intro- 
 duction of instrumental music. It is not 
 pretended but that the organ, the 
 instrument complained of was in 
 troduced by the constituted authori- 
 ties; but the ground taken is, that 
 this authority has been exercised 
 to do that which is against the provisions 
 
 5
 
 of the charter, which guarantees that Uu- 
 Minhag Sephardim should be a ritual of 
 the congregation, and that it did not al- 
 low of instrumental music as a part of it. 
 The objection is to the mere form in 
 which the music is used and practiced in 
 this congregation. 1 suppose it might be 
 admitted that in its origin such a ritua! 
 was practiced without the aid of instru- 
 mental accompaniment, but to suppose 
 that the exact kind of music that was to 
 be used in all former time had been fixed 
 and agreed upon by the Jewish worship- 
 pers who obtained this charter would be 
 to attribute to them an impracticable un- 
 dertaking. That such music was not used 
 is certain; but that it might not in the 
 progress of human events be adopted 
 would be an attempt to anticipate the de- 
 cision of posterity 'On matters that must 
 be affected by the progress of art and the 
 general tone of society, and which could 
 not be controlled by arbitrary limitation. 
 As this was a subject that could not be 
 well reached, much less continually con- 
 trolled by the judgment of this Court, we 
 think the Judge below very properly ex- 
 cluded all evidence in relation to it. 
 
 "Evidence was offered on a graver sub- 
 ject, touching the faith and religious pro- 
 fessions of the majority that introduced 
 and established the organ. It might be 
 sufficient to say that the party which has 
 been charged with heterodoxy in this re- 
 spect profess to adhere to the ancient 
 faith of the Jews. They do not occupy the 
 position of those who openly disavow the 
 faith of the founders of the synagogue. If 
 they were to do so, it would be time for 
 the Court to say how far it would take 
 cognizance of the rights of the minority 
 under the terms of their charter. How 
 can a Court ascertain the faith of others 
 except by their professions? Can it be 
 done by the opinions of others, and if so, 
 6
 
 by whose opinions? It is said that no two 
 eyes can see exactly at the same distance, 
 and, perhaps, no two minds have exactly 
 the same conceptions of the same subjects, 
 particularly of matters of faith and or- 
 thodoxy. The unexpressed sentiments of 
 tip- human mind are hard to be found out, 
 and it is a delicate office to assume a 
 jurisdiction over its operations when they 
 are to be reached by the opinions of others 
 or conjectural inference. Expressions and 
 acts may give tolerable information, upon 
 which the judgment may act and deter- 
 mine. 
 
 "In this case suppose the Judge below 
 had opened the inquiry as to the faith and 
 doctrines of the dominant party, where 
 would he have looked for information? 
 Surely not to the minority or any others 
 who might occupy an adversary position. 
 Cou'.d he have trusted to the testimony 
 that might have been procured and given 
 from other sects and denominations of 
 Jews in other countries? And if so should 
 he have consulted those who live in Pales- 
 tine, in Germany, in England or in the 
 United States? He might have assumed 
 the power to do this, but it would have 
 been a wilderness of power with scarcely 
 a compass to guide him. It would have 
 been to go into the labyrinth of curious 
 and recondite learning, without a clue by 
 which he could escape from its bewilder- 
 ing perplexities. He would have had an- 
 other difficulty, that is, to determine 
 whose testimony he would have taken, 
 for both parties," no doubt, had ready and 
 able advocates for their respective doc- 
 trines. It seems to me it would have been 
 hard for a civil magistrate to give a defi- 
 nite, much less a satisfactory, judgment 
 on such subjects. We, therefore, concur 
 in the propriety of the course pursued by 
 the Judge below in respect to .these mat- 
 ters. If the Court can be called upon to
 
 settle by its decision such disputes it 
 would be bound to require parties to con- 
 form to its standard of faith a judicial 
 standard for theological orthodoxy!" (Pp 
 270-274.) 
 
 Times have changed since then, and cvii 
 conservative congregations now have the 
 organ in their places of worship. We take 
 everything as a matter of course nowa- 
 days, and are too apt to forget the cost 
 at which our privileges were bought by our 
 forefathers. Amongst the precious relics 
 of the battles for religious progress that 
 have been waged, let us ever cherish the 
 memory of the brave struggle of the Jews 
 of Charleston in 1840.
 
 LJS 
 
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