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Emil Lehmann’s Petition to Improve the Legal Rights of Jews in Saxony (November 25, 1869)

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Insofar as this decree, as its introduction indicates, aims to eliminate doubts about the retroactive force of the current § 33 of the Constitutional Charter with respect to the existing legislation, its utility is hardly subject to doubt. Closer inspection, however, immediately reveals the difficulty of imposing the form of a short decree on something that is supposed to express the notion: all contrary regulations are repealed.

For the decree does not suffice on this score, and nor does it remain within the narrow confines of a merely explanatory, instructive decree.

With the principle of freedom of religion and the principle of civic and political equality for all denominations having taken effect, all laws and decrees stating the contrary have lapsed.

If some of these lapsed laws are considered separately, without taking the rest of them into consideration as well, doubts may easily emerge as to whether precisely these laws might not actually continue to hold validity. This is, for example, certainly not the case with the following regulations [which are invalid], even though they were not mentioned in the decree:

1. the decree of May 6, 1839, pertaining to marriage among Jews. This decree is based on the regulations, described as closed, contained in the law of May 6, 1839, and includes in §§ 2 to 4 a number of rules that have not been applied for a long time. The regulation in § 2 has been superseded by the decree specified for clergymen of all denominations of February 5, 1852; the norm in §§ 3 and 4, according to which Saxon Jews may get married abroad or to foreign women only by authority of the Interior Ministry, has not been applied for several decades at least. Nevertheless, the decree was only formally repealed through the law of December 3, 1868. Likewise, the same decree invalidates the following:

2. No. 6 and 7 of the decree of July 5, 1867, concerning the implementation of the Constitution of the North German Confederation.

Far more important appears the invalidation effected by

3. the words: “as a rule, the difference in religion does not establish any difference in civil law,” which are contained in § 51 of the Civil Code of January 2, 1863. This sentence is justified in its motives [Siebenhaar, Kommentar I, page 83] with the fact that “in accordance with § 33 of the Constitutional Charter, the Christian religion alone as it is represented in the Christian ecclesiastical societies accepted in Saxony grants the full enjoyment of all civic rights; therefore, all non-Christians hold a special position.” Against this regulation, its motivation, and against the application to civil law of § 33 of the Constitutional Charter in effect at the time, the Israelite religious communities in Dresden and Leipzig, with the author of this petition acting on their behalf, issued complaints on April 30, 1861, pointing to the more adequate version in § 46 of the former draft: “The difference in religion and of status has no influence on private rights, except as far as this is specifically stipulated by laws.”

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