Between the Lion Cub of Judea and the British Lion: cause lawyers, British rule and national struggle in Mandatory Palestine

Abstract

The tempestuous political environment of the final days of British Mandate rule in Palestine saw intensive activity by cause lawyers. As a test case of this activity, this article examines the conduct of the attorneys who handled the case of Dov Gruner, a member of the Irgun Zionist underground. In April 1946, Gruner was sentenced to death by a British military court. Informed by cause lawyering paradigm, the article examines the tactics used by his lawyers and their relations with players within and outside the court. This examination sheds light on the links between nationality, the law and lawyers at that time in Palestine. In particular, the analysis highlights the key role played by the lawyers in the Gruner affair, similar from that perspective to the dominant role of lawyers in the Irish War of Independence and different from the relatively marginal role played by lawyers in Indian freedom struggle.

Keywords:

• cause lawyers
• Mandatory Palestine
• legal ethics
• undergrounds
• Irish War of Independence
• Indian freedom struggle

Notes

1 Hā-ʾIrgun Ha-Tzvaʾī Ha-Leūmī b-Ērētz Yiśrāʾel, lit. ‘The National Military Organization in the Land of Israel,’ often abbreviated as IZL after its Hebrew acronym. The Irgun was founded in 1937 and was identified with the right-wing Revisionist Movement within Zionism. Appointed as its leader in early 1944, future Israeli Prime Minister Menachem Begin declared a mutiny against the British, followed by intensification in Irgun attacks on British targets. On the eve of the 1948 war that marked the end of British rule, the Irgun had 3000 members. David Niv, The Zvai Leumi Organization, vol 1 (Klausner Institute 1965) 12, 297–302; John Bowyer Bell, Terror out of Zion: The Fight for Israeli Independence (Transaction Publishers 1996) 163–203.

2 See Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח' 13/2/1; Yitzhak Gurion, Defense Counsels for Freedom Fighters (Jabotinsky Institute 1973) 14–16, 22–24 (hereafter, Gurion Defense Counsels); Gideon Cornfield, Zion Liberated, The Life and Times of Max Seligman, C.B.E. (J Simon 1990) 40.

3 Known by the British as the Stern Gang and by the Jews as Lehi (Hebrew acronym of its official name, Fighters for the Freedom of Israel), it was founded in 1940 by several former Irgun members led by Abraham Stern (aka Yair), who opposed the Irgun’s policy at the time of avoiding attacks against the British during the Second World War. The Stern Gang took a more extreme line against the British throughout its short period of activity. During the 1948, it had between 700 and 1000 members. Joseph Heller, The Stern Gang: Ideology, Politics and Terror 1940–1949 (Frank Cass 1995) 59–122.

4 Interview with Max Kritzman (26 January 2003); Gurion Defense Counsels (n 2) 24–25.

5 The other three were Yehiel Dresner, Mordechai Alkahi and Eliezer Kashani, who had been captured during another attack by the Irgun. Itzhak Gurion, Triumph on the Gallows (Brit Trumpeldor of America 1950) (hereafter, Gurion Triumph on the Gallows) 105–112, 125.

6 By far the largest and most significant of the three, the Haganah was founded in 1920. From the 1930s on, it was identified with the Zionist Labor Movement that led the Yishuv. On the eve of the 1948 war, it numbered some 45000 members, who formed the core of the Israel Defense Forces (IDF). Leslie Stein, The Hope fulfilled: The Rise of Modern Israel (Praeger 2003) 168–172; Benny Morris, 1948: A History of the First Arab-Israeli War (Yale University Press 2009) 86–88.

7 One of the largest operations at that time was ‘the Night of the Bridges,’ in which eleven railway bridges connecting Palestine to its neighbouring countries were attacked and destroyed. The collaboration between the three underground began in November 1945 and ended in July 1946. Yehuda Slutzky, History of the Haganah (Am Oved 1973) vol 3, 854–905. On the conflict between the undergrounds, see n 84 and accompanying text.

8 For example, in March 1937, Palestine (Defence) Order in Council was passed, complemented in November of that year by regulations providing for the establishment of military courts for summary judgements against Palestinian Arab rebels. Palestine (Defence) Order in Council, 1937, 674 Palestine Gazette Supp No 2, 259; Defence (Military Courts) Regulations, 1937, 737 Palestine Gazette Supp No 2, 1138. These regulations were replaced by a special section in the 1945 Defence (Emergency) Regulations. See The Defence (Emergency) Regulations, 1945, 1442 Palestine Gazette Supp No 2, 1055, II.

9 For example, in 1945, the maximum penalty for possession of firearms was increased from life in prison to death: The Defence (Emergency) Regulations, 1945, 1442 Palestine Gazette Supp No 2, 1055, section 58.

10 A term coined by Advocate Aharon Ben-Shemesh, counsel of the Land Department of the Jewish National Fund (JNF) with reference to the lawyers representing the JNF in real-estate cases. Aharon Ben-Shemesh, ‘The Juridical Underground during the Period of the White Paper’ in Natan Bistritzky (ed), The Path of Fulfillment (Keren Kayemeth Leisrael 1950) 157.

11 Austin Sarat and Stuart Scheingold, ‘An Introduction’ in Austin Sarat and Stuart Scheingold (eds), Cause Lawyering, Political Commitments and Professional Responsibilities (Oxford University Press 1998) (hereafter, Sarat and Scheingold 1998) 4.

12 Ann Southworth, ‘Professional Identity and Political Commitment among Lawyers for Conservative Causes’ in Austin Sarat and Stuart Scheingold (eds), The Worlds Cause Lawyers Make: Structure and Agency in Legal Practice (Stanford Law and Politics 2005) (hereafter, Sarat and Scheingold 2005) 83, 85–86.

13 On activities by such lawyers in the Irish and Indian struggles for independence, see section III below. On the activities of such lawyers in Vichy France, see Liora Israel, ‘From Cause Lawyering to Resistance: French Communist Lawyers in the Shadow of History (1929–1945)’ in Sarat and Scheingold 2005 (n 12) 147.

14 Sarat and Scheingold 1998 (n 11).

15 Stuart Scheingold, ‘Cause Lawyering and Democracy in Transnational Perspective: A Postscript’ in Austin Sarat and Stuart Scheingold (eds), Cause Lawyering and the State in a Global Era (Oxford University Press 2001) 382, 386; Stuart A Scheingold and Austin Sarat, Something to Believe In: Politics, Professionalism and Cause Lawyering (Stanford University Press 2004) (hereafter, Sarat and Scheingold 2004) 18–19.

16 Scheingold (n 15) 387.

17 Ibid 386–387. Note that there are other typologies within the same paradigm. See Thomas M Hilbink, ‘Cause Lawyering: Political Commitments and Professional Responsibilities (Book Review)’ (2004) 29(3) Law & Social Inquiry 657. I believe that Sarat and Scheingold’s typology is more applicable to Mandatory Palestine than that suggested by Hilbink, as the latter is more appropriate for current liberal-democratic regimes. See Stephen Ellmann, ‘Cause lawyering in the third world’ in Sarat and Scheingold 1998 (n 11) 349; Israel (n 13); Steven K Berenson, ‘Government Lawyer as Cause Lawyer: A Study of Three High Profile Governments Lawsuits’ (2009) 86 Denver University Law Review 457 (Applying Hilbink’s typology on government lawyers in the US).

18 Scheingold (n 15)384–385.

19 David B Wilkins, ‘Identities and Roles: Race, Recognition and Professional Responsibility’ (1998) 57 Maryland Law Review 1502, 1503–1506, 1520; Austin Sarat and Stuart Scheingold, ‘The Dynamics of Cause Lawyering: Constraints and Opportunities’ in Sarat and Scheingold 2005 (n 12) 1, 1–3.

20 On the concept of officer of the court, see for example, AH Manchester, A Modern Legal History of England and Wales, 1750–1950 (Butterworth 1980) 66; Charles W Wolfram, Modern Legal Ethics (West St Paul 1986) 17. This duty was provided for already in the Mandatory ordinance of 1922 that first regulated the practicing of law in Palestine. Advocates Ordinance 1922, 71 Official Gazette.

21 Sarat and Scheingold 2005 (n 15) 20–21.

22 David Luban, Lawyers and Justice: An Ethical Study (Princeton University Press 1988) 324, 327, 331–333, 338.

23 On the prominent lawyers involved in this struggle and their financing, see David Foxton, Revolutionary Lawyers: Sinn Féin and Crown Courts in Ireland and Britain 1916–1923 (Four Courts Press 2008) 24–35, 48–51, 265–267.

24 Ibid 62–68, 89–90, 103–104, 120–127.

25 Foxton (n 23) 173–175, 381–384.

26 A particularly well-known case was the affair of Joseph Murphy, tried in a military court for killing a British soldier in December 1920. In this case, the death sentence was eventually commuted by the military commander to life in prison, the formal justification being the repeated delays in executing the sentence. The National Archives, United Kingdom, WO 71/361.

27 Foxton (n 23) 385–387, 260.

28 Charles Townshend, The British Campaign in Ireland 1919–1921: The Development of Political and Military Policies (Oxford University Press 1978) 146–147. The British failure in suppressing the revolt was due to additional and significant factors related to British public opinion and the need to concentrate on the fighting in the First World War. Joseph Lee, Ireland, 1912–1985: Politics and Society (Cambridge University Press 1989) 38–43; George Boyce, The Irish Question and British Politics 1868–1996 (Palgrave 1996) 61–72.

29 Mithi Mukherjee, India in the Shadows of Empire: A legal and Political History 1774–1950 (Oxford University Press 2010) 151–152, 170–172.

30 Mahatma K Gandhi, Hind Swaraj and Other Writings (Cambridge University Press 1997) 52–55.

31 Mahatma K Gandhi, Non-violent Resistance (Satyagraha) (Schocken Books 1961) 161–168.

32 Jogindra S Gandhi, Lawyers and Touts: A Study in the Sociology of Legal Profession (Prometheus Books 1982) 33; Fali S Nariman, ‘Boycott – A Lawyer’s Weapon?’ (July–December 1978) XVIII The Indian Advocate 89; Mukherjee (n 29) 150; John Leubsdorf, ‘Gandhi's Legal Ethics’ (1999) 51 Rutgers Law Review 928–929 ; Sunit B Kher (ed), The Law and the Lawyers (Navajivan Publishing House 2009) 118–137.

33 Phirozeshah B Vachha, Famous Judges Lawyers and Cases of Bombay: A Judicial History of Bombay During the British Period (NM Tripathi 1962) 322–329; Leubsdorf (n 32) 923–935.

34 Sumit Sarkar, Modern India, 1885–1947 (Macmillan 1989) 388–396; Shree Govind Mishra, The Legal History of India, 1600–1990 (Uppal Publishing House 1993) 37–38. Regarding cases of representation, see for example, Panchal v Emperor, AIR Bombay, 306 [1944].

35 This army was created in April 1942 by Indian radicals who sought to open a second, violent front against the British, in addition to Gandhi’s nonviolent resistance within India. At its peak, it numbered 45000 men who fought the British together with the Japanese in the Burmese front. Kalyan K Ghosh, The Indian National Army: Second Front of the Indian Independence Movement (Meenakshi Prakashan 1969) 37–59, 93–121.

36 This support was motivated, inter alia, by the fact that nationalist sentiment subsided somewhat in the aftermath of the war, and the Congress Party wished to revive it. Ibid 202–211.

37 Ibid 220; Moti Ram (ed), Two Historic Trials in Red Fort (Roxy Printing Press 1946).

38 Donald M Reid, Lawyers and Politics in the Arab World 1880–1960 (Bibliotheca Islamica 1981) 315; Nathan Baron, Law, Passions and Politics: Judges and Lawyers between the British Mandate and the State of Israel (Steimatzky 2014) 5.

39 Neta Ziv, ‘Combining Professionalism, Nation Building and Public Service: The Professional Project of the Israeli Bar, 1928–2002’ (2003) 71(4) Fordham Law Review 1621, 1623–1624.

40 A similar group operated among the Palestinian Arabs of that time, a discussion of which is beyond the scope of the present articles. On Palestinian lawyers and the activities of Jewish lawyers in the land area, see Shimon-Erez Blum, ‘The “Juridical Underground”: The Involvement of Jewish Lawyers in the Zionist Struggle in 1938–1947 in Mandatory Palestine’ (January 2012) (unpublished JSD. dissertation, Tel-Aviv University) 234–282 (on file with the David J Light Law Library, Tel-Aviv University).

41 Summary of an interview with Advocate Aharon Hoter-Yishai, 14 August 1983, Yad Tabenkin Archive, Israel, Section 25-מ/File 4/Box 2; Yitzhak Olshan, Law and Reflection: A Memoir (Schocken 1978) 131.

42 Slutzky (n 7) 512–513. Note that in some exceptional cases, Haganah members did not recognise the British authority. See eg in file with Haganah Historical Archive, Israel, Section 31, Files 12 and 69.

43 Transcript of testimony by Uri Meretz, 12 May 1983, Yad Tabenkin Archive, Israel, Section 25-מ, File 4; Transcript of testimony by Advocate Yaacov Salomon, 8 June 1958, Haganah Historical Archive, Israel, file 138.37. ‘Special treatment’ included the permit not to work in prison; Yaacov Salomon, My Way (1980) 121–122.

44 Blum (n 40) 110–131.

45 See, for example, Gurion Defense Counsels (n 2) 112–113, 125–131.

46 Thus for example, in the February 1942 trial of Yehoshua Zetler charged with robbing a bank in Tel Aviv in 1940 and attempted murder in the course of that robbery. Zetler pleaded not guilty and was eventually convicted and sentenced to 15 years in prison. ‘Y. Zetler sentenced for 15 years in prison’, Davar, 6 February 1942.

47 Matityahu Shumelevitz, In Red Days (Anonymous Publishing 1949) 118–121; Yaacov Banai, Unknown Soldiers: The Operations of the Lehi (Hug Yedidim 1978) 204–242. See also Heller (n 3).

48 Yosef Nedava, Book of the Gallows (Hadar 1959) 118–123; Gurion Triumph on the Gallows (n 5) 87–89; Major R Willson, ‘The enemy tells: Dov Gruner’ Herut, 26 May 1950.

49 Ibid 59–76, 87–98.

50 Gurion Defense Counsels (n 2) 145–165; Interview with Jack Denley, 21 July 1977, Imperial War Museum, United Kingdom, PAL 69, LOC 486.

51 David Niv, The Zvai Leumi Organization, vol 5 (Klausner Institute 1976) 79–80.

52 The Criminal Investigations Department, better known as CID, was an elite police unit involved among other things in investigating terrorists in Palestine. Eldad Haruvi, Palestine Investigated: The Story of the Palestine C.I.D., 1920–1948 (Porat 2011).

53 Letter from Max Seligman to the CID, 21 May 1946, Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13–3 /37 (italics added).

54 Gurion Defense Counsels (n 2) 150.

55 Ibid.

56 Irgun poster (31 January 1947) in Nedava (n 48) 172–174.

57 See in file with Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13–3 /37 (italics added).

58 Max Kritzman, ‘Character Description’ Hamashkif, 7 May 1948; Gurion Defense Counsels (n 2) 148.

59 See above text accompanying n 19 and n 22.

60 Letters from Max Seligman to the CID, 14 June & 23 December 1946, and the letter from CID to Max Seligman, 1 June, 27 June and 30 December 1946, Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13–3 /38.

61 According to The Defence (Emergency) Regulations, 1945, 1442 Palestine Gazette Supp No 2, 1055 § 58(1) (a)(b).

62 Transcript of Dov Gruner’s Statement, Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13 - 37/3 (hereafter, court minutes).

63 Leading Irgun member Shmuel Katz recalled that Begin, a graduate of the Warsaw Law Faculty, told him that there were cases in which he wrote political statements of Irgun members brought to justice. Telephone interview with Shmuel Katz Leading Irgun member (11 June 2003). As indicated in a newspaper article, Gruner’s poor command of Hebrew is attested to by a handwritten letter he sent from prison. Nir Man, ‘Letter from Death Row’, Haaretz, 20 January 2005.

64 Court minutes (n 62).

65 Ibid.

66 Ibid.

67 Ibid. Stubbs argued that Gruner had no prior criminal record and no family apart for a sister in the US. He further argued that Gruner served more than four years in the army. He even mentioned Gruner’s injury as a direct result of the attack and said it took Gruner eight months to recover enough to be able to stand trial.

68 Ibid.

69 As was the custom in military court rulings of that time, no reasons were provided.

70 Court minute (n 62). The line is borrowed from the poem ‘We Have Arisen and Returned’ by Yaacov Cohen, which became one of Betar’s anthems. David Niv (ed), On the Barricades: Songs of Valor (Israel Defense Ministry 1984) 48. On Betar, see text accompanying n 4.

71 Irgun members Yosef Simkhon and Michael Eshbal were caught in a raid on an arsenal and sentenced to death on June 1946, but their sentence was subsequently commuted. The Irgun attributed that to the fact that it had abducted British officers and held them hostage. Gurion Defense Counsels (n 2) 114–122.

72 Menachem Begin, The Revolt: Story of the Irgun (Samuel Katz tr, Steimatzky 2002) 255.

73 Transcript of Confirmation of Sentence, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13- 37/3.

74 In a 26 January meeting of the Jewish Agency management, it was decided that the agency’s political department would write to the High Commissioner for Palestine and ask for Gruner’s pardoning. Central Zionist Archive, Israel, Vol 50 in the series of Jewish Agency management minutes.

75 Gurion Defense Counsels (n 2) 162–163; Nedava (n 48) 174–176.

76 Nedava (n 48) 161; Niv (n 51) 88; Interview with Justice Windham (12 July 1977, Imperial War Museum, United Kingdom, PAL 32 loc 486. Begin wrote in his memoirs that since Windham was a member of a noble family, this abduction decided the issue and delayed Gruner’s execution, Begin (n 72) 257.

77 The day after the second abduction, in a speech before the British Parliament, Secretary of State for the Colonies Arthur Creech Jones emphasised the seriousness of the incident: ‘The abduction of a judge from his own court must arouse a special sense of horror, for such a crime is an attack on the very foundation of society, and of civil government.’ Hansard (28 January 1947) v HC 432 5 s, 773.

78 ‘A military supervision will be declared in several areas of the country’ Mishmar, 28 January 1947.

79 See minutes of the Jewish Agency management meeting, in the series of Jewish Agency management minutes (n 74).

80 Meirson (later Meir) was a member of the management and a key leader in the Zionist Labor Movement in Palestine and later in Israel. She served as Israel’s Prime Minister from 1969–74.

81 The JCPC was the highest tribunal with jurisdiction over British colonies. See John H Baker, An Introduction to English Legal History (Butterworths 1990) 161–162.

82 See n 79.

83 Eg ‘the Answer of the terrorists’, Mishmar, 28 January 1947.

84 Slutzky (n 7) 951–954. It was the second Saison. The first one occurred between November 1944 and March 1945.

85 Niv (n 51) 89.‏

86 ‘Kidnapped Judge Freed’, The Times, 29 January 1947; ‘Mr. Collins Set Free By Terrorists’, The Times, 30 January 1947.

87 In a special parliamentary hearing convened after the abductions to discuss Jewish terrorism in Palestine, Winston Churchill and others were harshly critical of the Labor government’s apparent helplessness. Churchill demanded that Gruner be executed in order to affirm the government’s authority and punish Gruner to the full extent of the law. Hansard (31 January 1947) v HC 432 DEB 5 s, 1300–1358.

88 Archive of the Jabotinsky Institute in Tel Aviv, Israel, כ 4/3/16. Note that the various sources are not in agreement regarding on whose behalf Levitzky was acting, and on why Gruner agreed to initially sign the power of attorney and then revoke it. A discussion of this controversy is beyond the present scope of this article. See Blum (n 40) 147–151.

89 According to Gurion, appealing would have led Jewish public opinion to forget the respectful gesture of releasing the abductees and meant that the Irgun recognised the trial and thence the British rule of Palestine. In the first opportunity the British would have later, he argued, Gruner would be executed. Rokach remained unconvinced. Gurion Defense Counsels (n 2) 154–155; Yitzhak Gurion, ‘The Trials of Etzel and Lehi Members – Preliminary Draft of Defense Counsels’ (unpublished manuscript) 7, Archive of the Jabotinsky Institute in Tel Aviv, Israel, פ 50 - 4/16 (hereafter, Gurion, “draft”).

90 Kritzman was certain the account has indeed been ‘settled’ when, several weeks later, he was arrested by the British for six weeks for being a member of the illegal Irgun. Interview with Max Kritzman (26 January 2003). On Meirson, see n 80.

91 Haaretz, 29 January 1947.

92 A voluntary association without any formal standing with the British government that included about a quarter of the Jewish attorneys in Palestine and was designed to promote their professional and socioeconomic status. See Ziv (n 39).

93 'The Jewish settlement is tired of the Tricks of Terror' Mishmar, 29 January 1947.

94 Letter from Max Seligman to Yoel Sussman, a lawyer in his office, subsequently the President of the Israeli Supreme Court, 27 January 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, 38/ ח13-3 (italics added).

95 Kritzman also added that he was subsequently proven right when the two abductees were quickly released. Letter from Max Kritzman to Max Seligman and British solicitor Solomon Kaufman, 17 February 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13-3 /38. Nevertheless, in an interview conducted 57 years after the end of the affair, he said that the judge was a good man and that he should not have been abducted. Interview with Kritzman (26 January 2004).

96 British ambassador to Washington, Lord Archibald Inverchapel, wrote to the High Commissioner that he was being swamped by telegrams and asked to be kept abreast of developments. Letter from Ambassador Lord Archibald Inverchapel to High commissioner General Alan Cunningham, 28 January 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, כ 20, 198.

97 Davar, 27 January 1947. The National Committee (Havaad Haleumi) was the executive branch of the Elected Assembly of the Jewish community in Palestine, and served as the de facto government of the Jewish state in the making.

98 Letter from Max Seligman to Yoel Sussman, 26 January 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13-3 /38.

99 Ibid.

100 For example, the Daily Herald refused Seligman's request to publish a letter about Gruner, saying that there were ‘certain legal objections.’ Letter from Daily Herald Deputy Chief Director to Max Seligman, 4 February 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13-3 /38.

101 The HCJ was a judicial authority supervising the Mandate administration. It was defined as a division of the Supreme Court in Palestine already in Article 43 of the 1922 Order-in-Council, but was actually established in 1924. It was granted authorities similar to its UK equivalent, only broader, including issuing prerogative orders against the executive branch, such as mandatory and prohibitory injunctions, habeas corpus and orders to other courts and administrative authorities with judicial roles – all ‘for the sake of justice’ when there was no substantive authority of another legal instance. The petitioner had to establish personal interest in the procedure and this threshold test was rigidly enforced. Assaf Likhovski, Law and Identity in Mandate Palestine (University of North Carolina Press 2006) 63–65; Yair Sagi, ‘For Administration of Justice: On the Establishment of the High Court of Justice of Israel’ (2004) 28(1) Iyunei Mishpat Tel Aviv University Law Review 225, 243–251.

102 It is not clear why Gruner’s uncle was chosen rather than his sister, Hellen Friedman. At the same time, Friedman was in contact with the Jewish Agency and Levitzky, and the latter probably examined the possibility of appealing on her behalf. See Meirson’s words in the above text accompanying n 81.

103 In the same interview, Kritzman also argued that he would have forged the signature in any case. David Goldstein, ‘Max Kritzman’ The Jewish Herald, 5 September 1972, 50. Gurion also wrote that this was a forgery, Gurion Defense Counsels (n 2) 158.

104 See above text accompanying n 27.

105 Frank Gruner v the Commissioner of Prisons and the Commander of the Prison, Jerusalem (3 February 1947) (on file with Archive of the Jabotinsky Institute in Tel Aviv, Israel, 38/3 /13ח).

106 This refers to the 1937 Defence (Military Courts) Regulations, issued on the basis of the 1922 Order in Council that authorised the military court to sentence Gruner to death. Frank Gruner v Commissioner of Prisons, Jerusalem, 14 PLR, 29 [1947]. These Regulations were replaced by a special section in the 1945 Defence (Emergency) Regulations. See n 8.

107 The argument for rejecting the application was that the HCJ had erred in its previous ruling, and that the matter had general and public significance, and one that was irreversible for Gruner. Letter from Max Kritzman to Max Seligman and Solomon Kaufman, 17 February 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13-3 /38. The application to the JCPC was submitted subject to Article 3(b) of appeal regulations made especially for this purpose. See Palestine (Appeal to Privy Council) Order in Council, 1924, 129 Official Gazette, 928.

108 Mapai, Hebrew Acronym of Land of Israel Workers Party, was the strongest Jewish party at the time, and headed the Zionist Labor Movement in Palestine.

109 As mentioned, Gruner was opposed to submitting the appeal, and the Irgun was seen as being behind that opposition.

110 Davar, 4 February 1947.

111 Kaufman had been appointed by the London branch of ‘Vaad Assieri Zion’ (Committee for Zionist Prisoners in Palestine) with Seligman’s mediation. This committee supported Irgun prisoners and detainees. Letter from Max Seligman to Solomon Kaufman (8 February 1947); Letter from Solomon Kaufman to Max Seligman, 10 February 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israelח 13-3 / 38. Kaufman had previously collaborated with Seligman when the two tried, unsuccessfully, to appeal to the JCPC against the deportation to Africa of Palestine Jews suspected of membership in the Irgun and Stern Gang. See Shulamit Eliash, Etzel and Lehi Exiles in the Detention Camps in Africa 1948–1944 (Bar Ilan University 1996) 29–46, 206.

112 Kaufman described Devlin as one of England’s finest constitutional lawyers, and Hawke as a leading criminal lawyer who had previously served as a King’s Counsellor. Letter from Solomon Kaufman to Max Seligman’s firm, 10 February 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13-3 /38.

113 Letter from Max Kritzman to the High Commissioner, 9 February 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13-3 /38. In his letter to Kritzman from 12 February 1947, Cunningham’s Chief Secretary wrote that the sentence was stayed pending the completions of proceedings in the JCPC by the order of the military command, Letter from Max Kritzman to Cunningham’s Chief Secretary , 12 February 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel 38/ח 13-3.

114 Letter from Solomon Kaufman to Seligman’s firm, 10 and 13 February 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel 38/ 13-3 ח). See also n 106.

115 Seligman asked Kaufman to inform Arthur Koestler of the legal developments, and Kaufman wrote a letter to the famous Jewish author. Letter from Solomon Kaufman to Arthur Koestler, 17 February 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13-3 /38.

116 Telegram letter from Max Kritzman to Max Seligman, 21 February 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13-3 /38.

117 Letter from Max Seligman to Max Kritzman, 14 February 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13-3 /38.

118 Letter from Max Kritzman to Max Seligman and Solomon Kaufman, 17 February 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13-3 /38.

119 Ibid. Note that towards the end of this letter, Kaufman also wrote that he could not think of any other legal arguments that could be made in the appeal to the JCPC, and that he doubted whether there was any point of pursuing this course. He suggested there were no such arguments.

120 See above text accompanying n 26.

121 See more in infra text accompanying n 175–176.

122 Memo by Yehuda Ben-Ari and F Brickman (undated) Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13-3 /38.

123 Devlin’s lack of preparedness is indicated by the fact that he asked for an adjournment immediately after the preliminary argument had been made, and by the fact that such a possible argument was not even mentioned in the pre-hearing correspondence between Seligman, Kaufman and Kritzman. Minutes of the JCPC hearing, 11 March 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel 37/3-13 ח.

124 Ibid.

125 Letter from Max Seligman to Solomon Kaufman, 18 March 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13-3 /38.

126 Among other things, Seligman referred Kaufman to High Court Rules, 1937, Palestine Gazette, Supp No 2, 295,678 , arguing that there was nothing in those rules that restricted locus standi to those residing in Palestine. He also referred Kaufman to articles 38 and 43 of The Palestine Order in Council, 1922, 74 Official Gazette, on the authorities of the Palestine courts, that did not reject that possibility. Letter from Max Seligman to Solomon Kaufman, 25 March 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel ח 13-3 /38.

127 The first verdict was in the matter of an HCJ appeal submitted by Israel Rokach in his role as the Head of the Community Committee against the Commissioner of the Lod District for a writ of mandamus to prevent the commissioner from permitting two rabbis from officiating marriages and divorces. The main verdict was written by Judge Frumkin, who first discussed the preliminary issue of whether Rokach had a locus standi. Frumkin ruled that he did, because the Community Committee headed by Rokach had a public interest related to the Jewish community in general. Israel Rokach v The District Commissioner 9 PLR, 191 [1942]. The second HCJ verdict was an appeal made by one Havkin for a writ of mandamus against the Commissioner of Police and Prisons in order to prevent him from foreclosing his vehicle and the money deposited in his bank. The HCJ ruled that it was authorised to discuss the appeal given its authority which was broader than in England, as well as to issue mandamus writs. Gedaliah Havkin v Inspector General of Police and Prisons, 7 PLR, 35 [1939]. On the broader authority of the Mandatory Supreme Court, see also Ephraim Salant, The High Court of Justice (1955) 8–9.

128 Gallop was another senior lawyer who substituted for Devlin, who had been called on a mission to the US on behalf of the British government.

129 The Rokach and Havkin verdicts, as stated above. According to article 46 of the Order in Council, 1922, see above n 126, under certain conditions, in case of a lacuna the Palestine law, English Common Law and Equity Law could be applied to civil court rulings.

130 For example, Justice Lord Thankerton ruled that since article 46 did not apply to military trials, it was inapplicable since Frank Gruner’s appeal to the HCJ involved Gruner’s trial in a military court. Transcript of JCPC hearing 8-9, 25 March 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13-3 /37.

131 Ibid 10 (italics added).

132 Initially, Gruner had signed a power of attorney for representing him in the appeal, but later recanted, for reasons that are controversial, as aforementioned, see n 88.

133 See above text accompanying n 56.

134 Lisa Hajjar, ‘Cause Lawyering Transnational in Perspective: National Conflict and Human Rights in Israel/Palestine’ (1997) 31 (3) Law & Society Review 473, 493–497.

135 In addition to the CID, the intelligence services in the metropole feared at the time that the Irgun could initiate large-scale Jewish terrorism in Britain itself. Calder Walton, ‘British Intelligence and the Mandate of Palestine: Threats to British National Security Immediately after the Second World War’ (2008) 23 Intelligence & National Security 435.

136 The day before the second hearing, Seligman had already predicted the JCPC would reject the appeal, and therefore suggested that the new appeal to the HCJ would be submitted by Gruner’s sister Helen Friedman as an individual with a locus standi, having arrived at Palestine to meet her brother. Letter from Max Seligman to Solomon Kaufman, 25 March 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13-3 /37. As we can see below Kaufman thought differently and suggested Israel Rokach.

137 Letter from Max Kritzman to the High Commissioner and the Army Commander in Palestine, 27 March 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13-3 /37. Seligman estimated that although he did not have a specific guarantee, he had no doubt that the high military command would extend the delay with reference to Gruner and the three other convicts until all proceedings in the JCPC would be completed. Letter from Max Seligman to Solomon Kaufman, 30 March 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13-3 /37.

138 Letter from Max Seligman to Solomon Kaufman, 30 March 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13-3 /37.

139 Gurion Defense Counsels (n 2) . 159

140 Ibid 11, 154. Interview with Max Kritzman (26 January 2003).

141 Yitzhak Gurion, ‘The Hundred and Five Days’ Herut, 26 May 1954; Gurion, ‘draft’ (n 89); Yitzhak Gurion, ‘Second Draft – Trial of Irgun's and Lehi’s (The Stern Gang) Comrades – Second Draft of Defense Counsels for Freedom Fighters ’, Archive of the Jabotinsky Institute in Tel Aviv, Israel, 17/4-50 פ.

142 See above text accompanying n 89.

143 See n 141.

144 Austin Sarat and William LF Felstiner, Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process (Oxford University Press 1995) 4–5.

145 HCJ Israel Rokach v General Officer Commanding 14 PLR, 154 [1947]. See also ‘Mandate for Palestine’, The Avalon Project at Yale Law School, sections 2, 4, and 6 http://avalon.law.yale.edu/20th_century/palmanda.asp. In the matter of the ultra vires cause in English law, see The Lord Woolf, Jeffrey Jowell and Andrew Le Sueur, De Smith's Judicial Review (6th ed, 2007) 265–266.

146 See Yochanan Bader ‘The Rule of Law’, Hamashkif 14 March 1947; Barnard Yosef, British Rule in Palestine: The Failure of a Regime (Bialik Institiute 1948) 101–107.

147 Ibid. See also Summary of hearing minutes, 1 April 1947, in file with HCJ 40/47, Israel State Archive, .ב 47 /40 / 450 / 30

148 See n 8. Gibson made it clear that the 1937 Ordinance based on which the 1945 Defence Regulations were promulgated were not subject to the Mandate for Palestine as the 1922 Ordinance had been, and referred the judges to local precedents. See summary of hearing minutes, in n 148.

149 Ibid. Hogan’s argument relied in fact on the judges’ ruling on the appeal to the JCPC. See above text accompanying n 122, 130.

150 Ibid.

151 HCJ Israel Rokach v General Officer Commanding 14 PLR, 154 ]1947[.

152 Telegram letter from Solomon Kaufman to Max Seligman, 8 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13 /3 /38.

153 Ibid.

154 Letter from Chief Secretary to Max Seligman, 12 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13 /3 /38.

155 Letter from Solomon Kaufman to Max Seligman, 13 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13 /3 /38.

156 Letter from Max Seligman to Solomon Kaufman, 13 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13 /3 /38.

157 Letter from Max Seligman to Solomon Kaufman, 13 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, second letter . ח 13 /3 /38

158 Letter from Max Kritzman to Solomon Kaufman, 15 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13 /3 /38. In an article published by Seligman 11 years later, he describes how he tried to persuade Gruner to appeal by saying that since the appeal would be adjudicated in a civilian court, this would not mean recognition of the military courts – in line with Seligman’s own distinction. The article was published anonymously in English in 1958, under the title ‘Dov Gruner’, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 16 /3 /38.

159 Letter from Max Kritzman to Solomon Kaufman, 15 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13 /3 /38.

160 Telegram Letter from Solomon Kaufman to Max Seligman, 15 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13 /3 /38. I did not find the appeal in the files. Nevertheless, given the fact that Seligman and Kaufman did not refer in their correspondence to any new legal arguments, it is safe to assume that it was similar in content to the petition to the HCJ.

161 Niv (n 51) 122–124; Interview with Max Kritzman (26 January 2003).

162 Interview with Max Kritzman (26 January 2003).

163 See, for example, letter from Head of the CID Arthur Giles to Lawrence, Chief of Police in the Galilee District, 12 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, 16/ 6/ 3 כ.

164 The Defence (Emergency))Amendment No 7) Regulations, 1947, 1574 Palestine Gazette Supp No 2, 515.

165 Nedava (n 48) 237–238; Niv (n 51) 124.

166 Letter from Solomon Kaufman to Max Seligman, 16 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, 38/ 3/ 13 ח. Subsequently, Kaufman told him that the letter to The Times was not published. Letter from Solomon Kaufman to Max Seligman, 1 May 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13. Note that my review of contemporary sources revealed only one similar precedent: In March 1947, five men were sentenced to death for murder in the Gold Coast. Following three rejected appeals to the JCPC, a petition for pardon was submitted to the king, but nevertheless and prior to the king’s decision, the five were executed. The Times, 6 March 1947; Hansard (5 March 1947, 10 March 1947) v HC 434 Deb s 5, 484–485, 958–962.

167 Letter from High Commissioner Cunningham to the Colonial Office, 18 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, 20 כ at 205.

168 Letter from Max Seligman to Yehuda Ben Ari, 17 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13 /3 /38.

169 Ibid.

170 The 1939 White Paper restricted Jewish immigration to and land purchases from Arabs in Palestine. It was perceived as anti-Zionist by the Irgun and the entire Yishuv.

171 Solomon Kaufman to Yehuda Ben Ari, 25 April 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13 /3 /38.

172 Max Seligman to Solomon Kaufman (undated) Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13 /3 /38.

173 Letter from Solomon Kaufman to Max Seligman, 1 May 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13 /3 /38.

174 Letter from Max Seligman to Solomon Kaufman, 5 May 1947, Archive of the Jabotinsky Institute in Tel Aviv, Israel, ח 13 /3 /38.

175 Ze’ev Jabotinsky, founder of the Revisionist Movement, was supportive of the Mandate, trusting that the British would establish a Jewish State in Palestine. Gideon Shimoni, The Zionist Ideology (Brandeis University Press 1995) 236–238.

176 On Jabotinsky’s legalism, see Raphalea Bielsky-Ben-Hur, Every Individual a King: The Social and Political Thought of Ze’ev Jabotinsky (Dvir 1988) 320–321; Shimoni (n 175) 245–246. On Irgun trials, see Shay Lavi, ‘The Use of Force beyond the Liberal Imagination: Terror and Empire, Palestine, 1947’ (2005) 7(1) Theoretical Inquiries in Law 199.

177 Begin wrote in his memoirs that the Irgun viewed its illegal actions as completely legal, and added that this view enabled the Irgun to concentrate on its operations with a clean conscience. Begin (n 72) 59–73.

178 See above text accompanying n 56.

179 As aforementioned, this article does not address the controversy surrounding Gruner’s signing and revocation of the power of attorney. See n 88.

180 See above text accompanying n 41–47.

181 See above text accompanying n 22.