As many readers will know, the new (10th) edition of Benjamin’s Sale of Goods was published at the end of last year and is available in the Law Library’s reserve collection and can also be found on Westlaw. What is less well known is the interesting history of the book and of its original author. This book, long a classic in English law, was written by an American. And not just any American: Judah Benjamin was a Confederate!
This fact immediately caught my attention as I am myself an American and a Yankee (i.e. someone from the North) as well. Benjamin may be describable (on this side of the Atlantic) as a Yank, but he definitely was not a Yankee!
And here, an historical note might be useful for any readers who are unfamiliar with the nature of the American Civil War. The Civil War (1861-1865) was an unsuccessful war of independence on the part of most of the southern states, which tried to secede from the United States to form a new country called the Confederate States of America. This was to be a country in which, most significantly, the existence of slavery would not be threatened. Over the years, some writers have attributed the war to other issues, particularly economic ones. There undoubtedly were other issues, but my own view has always been that slavery lay at the heart of most if not all of them. For several years, the de facto central government of the southern states was the Confederate government, and Judah Benjamin held some of its highest offices, serving first as Attorney General, then as Secretary of War, and then as Secretary of State.
Judah Philip Benjamin (1811-1884) was born on the island of St. Croix, now part of the U.S. Virgin Islands but under British rule at the time, an accident of birth that, together with the British nationality of his parents, enabled him later in life to be recognized as a British subject. His parents, who were Sephardic Jews, emigrated to the United States when he was a young child, and he began his career in New Orleans, attaining success both in business and as a young lawyer. While still in his twenties he was co-editor of A Digest of Reported Decisions of the Superior Court of the Late Territory of Orleans and the Supreme Court of Louisiana, a comprehensive work that was immediately successful and that demonstrated his knowledge of the civil law sources of much of the law of the state of Louisiana.
In the early 1840s, he was elected to the state legislature, and ten years later to the United States Senate as one of the two senators from Louisiana. For several years he was also co-owner of a large sugar cane plantation, and thus a large-scale slave owner as well. In the Senate he became a leading spokesman for southern interests, and when Louisiana voted to secede from the United States he resigned and returned to New Orleans, soon taking up his appointment in the nascent Confederate government.
When the war started, the South had a degree of military success for a year or so, but its position then deteriorated and the Confederate government disintegrated altogether in the spring of 1865. Most of the Confederate cabinet members were captured, but Benjamin, sometimes in disguise, sometimes alone and sometimes on unseaworthy ships, managed, sometimes only narrowly, to evade Union (i.e. federal) forces and, via Florida, the Bahamas, the Virgin Islands and Cuba, to make his way to England. (The adventures of Charles II after the Battle of Worcester come immediately to mind — all that’s missing is the oak tree!)
Within months of arriving in England, Benjamin enrolled as a student at Lincoln’s Inn and also became a pupil of the well-known barrister Charles Edward Pollock (part of a prominent family that produced many distinguished lawyers including the famous legal scholar Sir Frederick Pollock). He was excused from the usual formality of “keeping terms” (at Lincoln’s Inn) for three years, and was called to the bar in June 1866. Business was slow at first but his free time was put to good use, and in 1868 his book, A Treatise on the Law of Sale of Property, With References to the American Decisions and to the French Code and Civil Law, was published by Henry Sweet (later to be part of Sweet & Maxwell). Like the digest of Louisiana decisions early in his career, the book was an immediate success. His legal practice then flourished and he soon became one of the most successful barristers in England. He dealt chiefly with commercial matters at the appellate level where his detailed knowledge of civil law principles and of international law set him apart from his contemporaries, though he had a thorough knowledge of English law as well.
Because of increasing ill health he retired at the end of 1882, and in June of the following year was given the unprecedented honour of a farewell banquet in the hall of the Inner Temple. This was attended by about 200 people, among whom were almost all of the senior members of the English legal profession. In retirement he joined his wife and daughter in Paris where they had been living for some time. He died there in May 1884 and was buried in Père Lachaise Cemetery (where he has never attracted anywhere near as many visitors as fellow residents Oscar Wilde and Jim Morrison!).
But his book (which had come to be known simply as Benjamin on Sale) lived on. He produced a second edition in 1873, and the work was then continued by other authors for a total of eight editions of which the last was published in 1950. Sweet & Maxwell revived the work in 1974 under the title Benjamin’s Sale of Goods, and it is the 10th edition of this that has just been published. The legal landscape has changed since 1868, and the new incarnation of Benjamin “drew on the original . . . rather more for inspiration than for substance” (10th ed., p. xiii), but it is easy to see why one would find inspiration in what for generations has been the leading work on the subject.
Much of Benjamin’s life remains a mystery, and his role in American history is far less well known than that of many individuals who were much less important. He destroyed most of his personal papers and never kept a diary or wrote any memoirs, thus depriving potential biographers of some of the raw materials that would have proved most useful to their task. Nonetheless, a number of biographies have been written over the years, but Benjamin still never emerged from relative obscurity.
It has been suggested that the reasons for his continuing obscurity also include antisemitism among some conservative elements in the South who (particularly in the past) were reluctant to extend to a Jew the reverence that they felt for the Confederacy. But, conversely, another reason is that his association with the Confederacy is an embarrassment to liberal American Jews who might otherwise want to celebrate America’s first Jewish senator (not counting a slightly earlier individual who had converted to Christianity). One of the biographies of Benjamin has the subtitle “The Jewish Confederate”, which is particularly ironic as the exodus from slavery in Egypt (despite some doubt about its historical accuracy) has always been a central part of Jewish tradition and is specifically recalled each year at the Seder (the Passover supper) in Jewish homes. The irony was recognized even in Benjamin’s lifetime, with one northern senator referring to him as “an Israelite with Egyptian principles” (quoted by some writers as “an Israelite in Egyptian clothing”).
In very recent years, there have been suggestions that Benjamin was gay, partly because he was so determined not to leave any information about his personal life, and partly because for most of his married life his wife lived in Paris where he visited her once a year if he was able to. But whatever the truth of this, it seems unlikely that the gay community will embrace him with any more enthusiasm than the Jewish community has shown.
Shakespeare’s Marc Antony said, “The evil that men do lives after them; the good is oft interred with their bones.” But it seems to be the reverse with Benjamin whose stellar career as a lawyer is remembered (particularly in England) far more than his leading role in the effort to perpetuate slavery. In a lecture in 2002, Ruth Bader Ginsburg, one of the most liberal justices of the U.S. Supreme Court (and certainly no apologist for slavery), included Benjamin among “four Louisiana giants in the law” (the title of the lecture), stating that he had “captured [her] imagination” and that “[h]e rose to the top of the legal profession twice in one lifetime, on two continents, beginning his first ascent as a raw youth and his second as a fugitive minister of a vanquished power.” Perhaps (if I may offer a personal view) Benjamin’s life illustrates the complexity of history where good and evil are often intertwined, with the concommitant thought that it is essential to remember both.
By Ronald Richenburg
“Benjamin, Judah Philip”, Oxford Dictionary of National Biography, on-line ed. (last accessed, 6 February 2018).
“Judah P. Benjamin”, Wikipedia (last accessed, 6 February 2018).
[Both DNB and Wikipedia have excellent articles, though each contains at least one minor error. The Wikipedia article is more comprehensive and alerted me to several of the other sources that I have used.]
“Entertainment to Mr. Benjamin, Q.C., at the Inner Temple Hall”, Law Times, Vol. 75, pp. 188-190 (7 July 1883). [Available in Bodleian Law Library and on Hein Online.]
Daniel Brook, “The forgotten Confederate Jew”, Tablet (on-line magazine), 17 July 2012 (http://www.tabletmag.com/jewish-arts-and-culture/books/106227/the-forgotten-confederate-jew).
Lawrence Bush, “The Israelite with Egyptian principles”, Jewish Currents (website/blog), 20 November 2017 (http://jewishcurrents.org/the-israelite-with-egyptian-principles).
Eli N. Evans, Judah P. Benjamin: the Jewish Confederate. New York: Free Press, 1988. [Available in Vere Harmsworth Library.]
Ruth Bader Ginsburg, “Four Louisiana giants in the law”, Judge Robert A. Ainsworth Memorial Lecture, Loyola University, New Orleans, 4 February 2002 (https://www.supremecourt.gov/publicinfo/speeches/viewspeech/sp_02-04-02).
Robert D. Meade, Judah P. Benjamin: Confederate Statesman. New York: Oxford University Press, 1943. [Available in Vere Harmsworth Library.]
Suman Naresh, “Judah Philip Benjamin at the English Bar”, Tulane Law Review, Vol. 70, pp. 2487-2514 (1996). [Available in Bodleian Law Library and on Hein Online.]