Examining British White Paper from Purely Juridical Angle, Judge Horace Stern Finds It “illogical an

Judge Horace Stern, President Judge of Common Pleas Court No. 2 and recognized as one of the outstanding legal minds in this country, yesterday addressed a letter to Dr. Cyrus Adler, president of the American Jewish Committee, in which he reviewed dispassionately and from a purely juridical angle the Passfield White Paper. Though characterizing as absurd and even harmful “to berate England and to cast vituperation upon the Labor Government or any of its leaders,” the eminent jurist concludes that the new policy adopted by England is a mistake “not from any anti-Semitic or inhumane motives, but merely from a mistaken policy.” He also concludes that the White Paper is both “illogical and fallacious.”

After paying tribute to England as one of the greatest countries in the world, one of the most liberal and tolerant, and one that has been pre-eminently fair and just to the Jews Judge Stern continues:


“What is the fundamental premise upon which the entire White Paper is based? It is the assertion that the present methods of Arab cultivation do not leave a land margin for the Jews because, while an Arab family requires 130 dunams of land for its maintenance, only 90 dunams are actually available. The White Paper asserts that the cultivable land of Palestine consists of only approximately 6,500,000 dunams, and that this amount, on the basis of 130 dunams per family, is insufficient for the Arabs, who would require, according to this estimate, about 8,000,000 dunams. It is therefore naively proposed that no Jew shall be allowed to buy more land until the Arabs, by new and improved methods of intensive cultivation, shall be able to get along with smaller individual holdings.

“It is readily seen that according to this calculation and this method of reasoning the Jews from the very beginning ought not to have been allowed to buy any land at all, because the Arabs would not have had enough even when the Balfour Declaration was promulgated.

“One’s first question therefore naturally would be whether the Balfour Declaration contemplated any such point of view, and, if so, why it was ever put forth as a promise to the Jews. I suppose every English school-boy in 1917, knew, or easily could have ascertained, the number of Arabs in Palestine, and likewise the area of the country, the general size of the Arab farms, the topography of the country and at least the approximate amount of available land. I suppose also every English school-boy in 1917 could have divided population into acreage with the same mathematical exactness as the Labor Government have done in 1930. If Lord Balfour ever thought that Jews could buy land and yet the Arabs have as much as before, and if he founded his Declaration upon that premise, his mind would have been that of a magician rather than a statesman. Surely Lord Balfour and his associates were not so childish, and they could not have meant their declaration to be something which, if it is now correctly interpreted by the Labor Government, was a physical and mathematical impossibility from the very start.

“The present English government in effect says that a Jewish national homeland in Palestine cannot be developed, indeed scarcely begun, until such time in the future as the Arabs shall learn to work their own land so intelligently that they will need less of it, and that meanwhile the Jews should put up the necessary money and effort to educate them to that point as a preliminary to the Jews themselves getting started.


“I call this proposition naive for several reasons. In the first place, considering that the Arabs for over a thousand years have made no progress in this respect, in how many years in the future will they be able to accomplish the proposed intensive cultivation of the land? In the second place, if intensive cultivation does produce the better conditions desired, what calculation does Lord Passfield make in regard to the continuous natural increase of the Arab population? As the margin of land would increase by a diminution of the minimum acreage that must be held by an individual, would not the Arab population increase, and therefore if the one factor grows even though the other diminish will not the produce remain the same? And in the third place, will not the general Arab standard of living rise with the progress in agriculture, so that with better returns from the land the Arab will nevertheless want as much land as before in order to satisfy his enlarged demand for a higher scale of living? In short, if the Jews are not to be allowed to buy more land until every Arab family is provided for on the land, I think we can safely date our next land purchase as occurring in the mists of infinity.

“No one hitherto, least of all Lord Balfour, ever thought of such a preposterous proposition. A Jewish homeland requires necessarily (1) Jews, (2) land. To have meant that no land could be acquired until every living Arab cultivator had 130 dunams, or until every living Arab peasant let us say in 1940 (the number then being probably much greater than now) has, let us say. 100 dunams (the less amount required by better cultivation, but the product of peasants by individual acreage remaining the same) would be giving the Jews no promise of a homeland, but a problem in geometrical progression, and the Balfour Declaration would have been a cruel jest.

“That brings me to the next point upon which the White Paper insistently dwells, and that is that the Balfour Declaration requires that the rights of the native population be safeguarded, and that this is as much a Mandate

upon England as is the facilitation of the Jewish homeland. What rights? The Declaration says that ‘civil and religious rights.’ Of any invasion of religious rights there is no question. When it comes to civil rights, whoever heard that it was a civil right of a person to be forbidden to sell land to a purchaser on terms acceptable to the seller? Any English or American lawyer would say that it was an inalienable civil right to be allowed to sell one’s property according to one’s own wishes. If the Arabs were being forced to sell their land I would think that their civil rights were being invaded. But the Jews are buying lands from the Arabs and at exorbitant prices. The British government wants to safeguard the civil rights of the native population by denying them the right voluntarily to trade with the Jews in land sales. What a curious conception! I wonder if a lawyer in Palestine could not compel the government to allow an Arab to sell his land to a Jew or to anyone else, on the ground that to refuse such permission would be to deny to the Arab one of the most fundamental of his civil rights.

“It is true that in the Mandate itself the mandatory power is required, by way of qualification or direction in carrying out the purpose of facilitating the establishment of the Jewish homeland, to ‘Ensure that the rights and position of other sections of the population are not prejudiced.’ But the word ‘right’ as thus used obviously refers to the ‘rights’ mentioned in the Balfour Declaration, and so far as the word ‘position’ is concerned, to construe so nebulous a term as giving carte blanche to the mandatory power to legislate regarding Palestine as though there were no promise of a Jewish homeland at all, is to violate a cardinal rule of law that words and phrases must be so construed as to subordinate them to, and harmonize them with, the general purpose of the document.


“The truth of the matter is that the present White Paper in effect adds to the Balfour Declaration the gratuitous clause: ‘and saving also the protection of the Arabs in what the English government may from time to time believe to be for their best economic interests.’ Of course if the English government makes such an addition, and then proceeds to interpret the best economic interests of the Arabs to demand that they must retain their ownership of land and not convert real estate into money, exactly the same effect is produced as if England were to say, ‘the Balfour Declaration is rescinded.’ The only difference would be that which exists between rationalizing by interpretation, and a frank, however dishonorable, renunciation of an obligation which had become irksome.

“Finally I come to the complaint made by the government that the new Jewish landowners employ only Jewish labor on the farms, and thus not only the Arab landowner but also the Arab farm-worker is dispossessed. While there may be too rigid and unswerving a policy pursued in this respect by the Jewish purchasers of the land (I do not know the facts), nevertheless, at best—or, if one so chooses to regard it, at worst,— how otherwise could there be any Jewish colonization into Palestine so as to establish a homeland there? If Jews were to become owners of the land, but Arabs to work their holdings, there would be no Jewish homeland but only Jewish titles to real estate, that is, Jewish landlords and Arab tenants. The Jews would then be merely investors in Palestinian land. Fortunately they have enough opportunities to invest in securities in other lands, without needing the Balfour Declaration for such an empty accomplishment. And as for the proposition that Jewish immigration should not be permitted as long as there be Arabs unemployed, such a policy so far from facilitating a homeland is more reactionary than that taken by other countries which have no obligation of a Balfour Declaration and which allow at least a substantial immigration even though unemployment at present exists within their boundaries.


“In conclusion, my thought is that Lord Balfour and his associates knew (and intended) that the Jews would enter Palestine, would buy more and more land, and would settle upon it, and that, as this occurred, some Arabs would thereby be converting their real estate holdings into money, and that they and their tenants would take up other occupations in Palestine or would settle upon land elsewhere. And they felt that the Arabs would not suffer thereby, but that they and all the inhabitants of Palestine would prosper by the introduction into that country of brains, money, indomitable energy, and idealism. Nothing in the White Paper has proved that Lord Balfour was mistaken in his judgment or his purposes. Indeed, to my mind the White Paper proves nothing except the remarkable superficiality of its own viewpoint and reasoning.

“As you know, I am not a Zionist. But I would not be human, much less a Jew, if I failed to sympathize with the millions of our co-religionists whose hearts are wrapped up in the destiny of the Holy Land, and who have received this discouraging set-back—fortunately only temporary—to their aspirations.”