During and after the First World War many American cities experienced severe housing shortages. Numerous landlords took advantage of the demand in the real estate market by increasing rents exorbitantly and evicting those who could not pay. The courts were overwhelmed with eviction proceedings and in April 1920 the New York State Legislature stepped in to remedy the crisis. They imposed various restrictions on landlords but poured oil on the flames by allowing rent increases of up to 25% and declaring that all leases that were not of fixed duration would terminate at the end of September. It meant that landlords could serve eviction notices on tens of thousands of tenants, greatly adding to the housing crisis.
To try to remedy their error the Legislature passed a series of Emergency Rent Laws. They froze eviction proceedings for 2 years and demanded that rent increases had to comply with statutory tests of reasonableness. The landlords pushed back, setting off a flood of law cases in the State courts, the New York Court of Appeals and in some cases, the Supreme Court.
In 1920, 30% of New York’s population were Jewish, the vast majority being recent immigrants or their children. They mostly lived in the poorer areas of New York, in the areas most affected by the housing shortage and the new Rent Laws. Not all were poor, some of New York’s Jews had grown prosperous by this time, they owned businesses and properties or had entered the professions. As the litigation over the Emergency Rent laws progressed through the courts, an overwhelming number of the participants: plaintiffs, defendants, lawyers and judges were Jews.
Two of the lawyers whose names feature prominently in the court records of the times were Louis Marshall and Julius Henry Cohen. They frequently acted for opposing sides in the litigation. Marshall acted as counsel for landlords in the Appeals Court, arguing that the Emergency Rent Laws were unconstitutional. Cohen acted for the tenants. Both men were excluded from the elite Anglo-Saxon legal community in New York; like most Jewish lawyers in the early 20th century, their legal interests were heavily skewed towards the rights of immigrants, workers and trade unions.
Louis Marshall had been born in the United States, the son of immigrant parents. He became prominent when he acted as the principal spokesman in the successful campaign for America to tear up its commercial treaty with Russia, as a protest against that country’s antisemitism. He became president of the American Jewish Congress, a post he held for 17 years. His achievements included forcing Henry Ford to sign an apology to the Jewish community for propagating the antisemitic Protocols of the Elders of Zion, working with Chaim Weitzmann to establish the Jewish Agency, and obliging Harvard University to scrap its plans for a Jewish quota. He sat on the board of the Jewish Theological Seminary and Temple Emanu-el.
Marshall did not restrict his support of minorities to Jews; he fought legal battles on behalf of black people, was active in the National Association for the Advancement of Coloured People and defended socialist assemblymen who had been blocked from taking their seats in the New York Legislature. Benjamin Cardozo, one of the judges who Marshall regularly appeared before, described him as "a great lawyer; a great champion of ordered liberty; a great leader of his people; a great lover of mankind.”
Marshall’s opposing counsel, Julius Henry Cohen, was not prominent in communal affairs and altogether less of a public figure. He too was the son of immigrants, had been born in the United States and shared Marshall’s commitment to social justice and minority rights. He and Marshall had been instrumental in resolving the 1910 garment worker’s strike, started by a group of young Jewish women in protest at a cut in their rates. When the dispute was over, Marshall wrote to congratulate him for accomplishing “the practical adoption of the now famous protocol of the cloak industry.” Cohen congratulated Marshall for coming up with the word “protocol” to describe the agreement and described Marshall as “showing the shrewdness of an old rabbi.”
In his legal submissions in support of tenants who were resisting eviction, Julius Henry Cohen maintained that appeals to history had frequently been made in order to protect tenants’ rights and to fix reasonable rents. He argued that throughout history, disputes over land occupancy had been resolved by communal customs that were backed up by the force of law. He cited examples from several ancient legal systems to support his case.
Although Julius Henry Cohen seems to have been fairly disconnected from his religious heritage, one of the examples he cited came directly from Talmudic law. It was based on the principle of hazakah. A little like the maxim, possession is nine tenths of the law, hazakah is the presumption that if somebody has been in possession of a property for a certain period of time, they are presumed to be the legal owner. In such a case they do not need to bring any further proof that they own it.
Cohen began his argument from Talmudic law by stating that in the Middle Ages many Jewish communities lived through crises similar to those currently afflicting New York. “Confined to ghettoes and forbidden to own land, they were obliged to rent both dwellings and business places in the limited areas in which they were permitted to stay.” As a result, they were at the mercy of their landlords, who, knowing that the Jews could not move, needed no further excuse to exploit them.
Cohen didn’t mention this, but in 1516, when the Jews of Venice were forced to move into a ghetto, the Venetian government insisted that the rent they were to pay was to be one third more than the previous, Christian, occupants had paid. The landlords saw it as a benefit, the Jews saw it as exploitation. As minorities and the impoverished have discovered throughout history, when options are limited, vultures fly in. When faced with such victimisation, Cohen continued, if the exploited tenant couldn’t, or wouldn’t, pay the increased rent, the landlord would evict them and replace them with another tenant. In Cohen’s words, “the first Jew lost his living to the second.”
The remedy to this situation, Cohen explained, was a decree first issued in the 10th century and reasserted in 1554 in the Italian town of Ferrara, at a gathering of rabbis from Rome, Ferrara, Mantua, Romagna, Bologna, Reggio, Modena and Venice. I have not been able to find the original decree but Cohen offered a quote from Israel Abrahams’ Jewish Life in the Middle Ages:
The rabbis deduced from the Talmud the law of hazakah, which gave the tenant in possession the right to continue, even without a lease, as against another Jew seeking to outbid him, and instituted a regulation excommunicating any Jew who offered an unreasonable rent in order to secure a dwelling place or store over the head of a Jew already in occupancy.
Presumably Cohen didn’t intend the courts to rely upon this old Jewish legal ruling to support the constitutionality of the Emergency Rent Laws. 16th century Italy was not 20th century New York and Marshall, who was opposing him, took him to task for even resorting to history. Marshall pointed out that the very fact that Jews in those days were not allowed to own property underlined how different the conditions were then.
Along with his Jewish legal precedent, Cohen also quoted one from Irish law. He raised both precedents in his two most important cases, before the New York Appeals Court and the United States Supreme Court. He was appearing in the Appeal Court alongside the eminent lawyer William D. Guthrie; the judges in that case included the Irish John W. Hogan and the Jewish Benjamin N. Cardozo. A couple of days later a colleague of his overheard a conversation between two other Appeal Court judges. “They are a clever bunch, Guthrie and Cohen”, said one; “they cite Irish precedents and they get Hogan; they cite Jewish precedents and get Cardozo – and so they bag two of the judges before they even begin their argument.”
Medieval Jewish law had no place in an American courtroom. But Cohen was shrewd enough to know its psychological value.