Who Owns the Drafts of the Declaration of Independence?

In November 2015, the Kedem Auction House published a catalogue announcing the auction of documents presented as: “First Drafts of the Israeli Declaration of Independence – Written by Lawyer Mordechai Beham” (on the history of the drafting of the Declaration of Independence, the role of Mordechai Beham, and the influence of the American Declaration of Independence on the drafting process, see: Yoram Shachar, Jefferson Goes East: The American Origins of the Israeli Declaration of Independence, 10 Theoretical Inquiries in Law 589 (2009)). In response, the State brought an action in the Jerusalem District Court seeking an order to prevent any disposition of the drafts, as well as their return to the State for transfer to the Israel State Archives. The District Court dismissed the suit for laches, while also addressing and rejecting the State’s arguments on the merits. The State appealed the judgment to the Supreme Court.

On May 20, 2019, the Supreme Court granted the appeal and reversed the judgment of the District Court. The judgment is summarized below.

CA 8323/17 State of Israel v. Daniel Beham et al. (full Hebrew text here):

In November 2015, the Kedem Auction House published a catalogue announcing the auction of documents presented as: “First Drafts of the Israeli Declaration of Independence – Written by Lawyer Mordechai Beham”. The documents included the “Verses Draft”, in which Beham copied sources that he considered appropriate to be used as a basis for the Declaration of Independence; the “English Draft” of the Declaration of Independence; the “Hebrew Draft”, which consists of three handwritten pages by Beham in Hebrew, and titled “Declaration in the matter of the Jewish State”; the “First Draft”, which is the typed version of the Hebrew Draft; and “The Beham Memorandum”, in which Beham provided explanations of the draft.

            Following the announcement of the auction, the State filed suit in the Jerusalem District Court for an order to prevent any disposition of the documents, and for their return to the State for transfer to the Israel State Archives. The State argued that the drafts were produced by Beham in the course of his work for the People’s Administration and the nascent State of Israel, and therefore, the Defendants were estopped from offering the documents for sale, and were required to transfer them to the State Archives. The Defendants contended that Beham only began to work for the Ministry of Justice following the establishment of the State, and his prior work for the Legal Department of the People’s Administration was voluntary, and was performed as a private individual. It was therefore contended that the documents were Beham’s private property. The Defendants further argued that the cause of action had lapsed due to prescription, and that it was tainted by extreme laches.

            The District Court ruled that while the Prescription Law, 5718-1958, did not apply to the suit, the State’s decades-long delay in seeking the return of the documents justified dismissal of the action for laches. Although the court recognized the public interest in obtaining the documents due to their historical value, the Defendants had conditioned the sale on the buyer’s agreement not to permanently remove the documents from the country, not to transfer them, whether or not for consideration, except to a public institution in Israel, and to permit the State to copy them. The trial court was therefore of the opinion that the public interest must retreat in the face of the State’s lengthy delay and the ensuing infringement of the Defendants’ ability to present a defense due to the extended lapse of time.

            Although the District Court held that the suit should be dismissed for laches, it nevertheless addressed the State’s claim on the merits. In regard to the Verses Draft and the English Draft, the court held that even had the State proved that Beham worked for the Legal Department, that would be insufficient to prove the State’s ownership, inasmuch as those documents were composed in Beham’s home, outside of normal work hours, and it could not be assumed that there was implied consent that such documents be delivered to his employer. Moreover, the State had not succeeded in showing when Beham was tasked with drafting the Declaration of Independence, in what capacity – volunteer or employee – and what, if any, understandings there may have been between him and the Legal Department.

            On appeal, the State argued that the result of the judgment of the District Court severely harmed the public interest in protecting national cultural properties. It was further argued that the documents were created by Beham for and on behalf of the People’s Administration, whether he was an employee of the Administration or a volunteer; that the State’s right to the documents is also supported by the law of agency, as he worked at the behest of Felix Rosenblüth (later known as Pinchas Rosen, the first Minister of Justice of the State of Israel (hereinafter: Rosen)); that there was an express or implied contract between Beham and the State, according to which his work product would belong to the State. The State further argued that laches is limited to rare, exceptional cases, the court has broad discretion in regard to laches, and consideration should be given to the State interest. Moreover, the Defendants did not prove the elements of laches, and for many years the State was not aware that Beham’s heirs held the documents. Even if the State was aware that Beham’s heirs had possession of the documents, that possession should be deemed a trust that ceased upon offering the documents for sale.

            The Defendants argued that the District Court reached the correct conclusion, although they disagreed with its reasoning in regard to prescription.

In granting the appeal, the Supreme Court (per Justice D. Mintz, Justices N. Hendel and Y. Willner concurring) held:

1. The applicable law is the Archives Law, 5715-1955, under which the documents are unquestionably “archival material” under sec. 1. Section 4 of the Archives Law requires that “all archival material of state institutions which preceded the establishment of the State of Israel … shall be deposited in the State Archives”. Sections 8 and 9 of the Law address private material and provide, inter alia, that the State Archivist maintain a register of archival material in the hands of private owners, that he may require information concerning such materials, but that the use of such material is subject to the consent of the owner or owner of the copyright.
2. Deciding whether the documents should be deposited in the Archives or left in the hands of the Defendants requires decisions on questions of history as well as of law. As a rule, it is better that the Court refrain from deciding upon matters of history. When it must do so, the Court should exercise caution, particularly inasmuch as, unlike historians, the Court is subject to rules of procedure and evidence, and must restrict its decision to what can be deduced from the admissible evidence submitted. Thus, the Court must not undertake deciding upon the accurate or complete historical truth.
3. The factual and legal dispute between the parties focused upon Beham’s status prior to his employment by the Ministry of Justice, i.e., did he draft the documents while an employee of the Legal Department of the People’s Administration or as a volunteer. That framework is not sufficiently sensitive to the circumstances of the time and place in which the documents were drafted, and is insufficient for deciding the question of their ownership. During that period between the United Nations vote of November 29, 1947, and the declaration of the establishment of the State (May 14, 1948), the country was at war, and the institutions of the nascent State were in formation and were located in Jerusalem, which was periodically under siege. Under the circumstances, the offices and institutions required for the nascent State were not always established in an orderly, methodical manner.
4. A review of the status of the various institutions at the time, the overlapping jurisdictions of various institutions, and the occasional general state of confusion show that it is doubtful that the heads of the various institutions were particularly meticulous in regard to matters of the status of the various persons involved in establishing the State and its institutions. It is reasonable to assume that there was a state of “all hands on deck” in which all who could volunteered to serve in whatever capacity required. Under such circumstances, examining Beham’s status in terms of the labor laws of 2017 is largely anachronistic. The question is not Beham’s status according to labor law, but rather whether the State successfully showed that, on the balance of probabilities, Beham was acting on the part of Rosen and the Legal Department rather than on his own and for himself. While the State did not produce a document from Rosen instructing Beham to draft the Declaration of Independence, other documents testify to Beham’s relationship to the Legal Department, his role in it, and the role of other members of the Department in the drafting process. It is therefore hard to accept the view that Beham began drafting the Declaration of Independence as a private initiative that was later integrated into the work of the Legal Department.
5. The above suffices to conclude that the documents were drafted as part of Beham’s work for the Legal Department, apparently at the behest of Rosen, and therefore belonged to a “state institution” prior to the establishment of the State, and should be in the Archives in accordance with sec. 4(a) of the Archives Law. The fact that this all occurred in the twilight between the end of Mandatory rule and the establishment of the State does not mean that the documents should not be viewed in terms of the normal rules of regularity, later anchored in the State Service Regulations.
6. As for prescription, the lower court held that it is inapplicable inasmuch as the Archives Law was enacted in 1955, and the Prescription Law in 1958, and under the law in force prior to the enactment of the Prescription Law, the action is not subject to prescription, as sec. 29(d) of the Prescription Law states: “In all cases referred to in this section, the period of prescription shall not be shorter than it was before the coming into force of this Law”. The Defendants argued that the trial court erred inasmuch as the remedy sought by the Appellants was not a “claim for enforcement” of a right (per sec. 2 of the Law), but rather a mandatory injunction. This argument cannot serve the Defendants inasmuch as they did not prove the period of prescription under the Mejelle [Ottoman Civil Code], which was the law in force prior to the enactment of the Prescription Law. This is not surprising, inasmuch as the Mejelle did not expressly treat of the period of prescription for an action for the type of restoration of property requested in this case. Therefore, the question to be addressed is that of laches.
7. This Court has held that laches only attaches upon the meeting of two necessary conditions: first, that the delay in filing suit expresses the plaintiff’s waiver of his right; second, that the defendant’s situation was worsened as a result of the delay. The case law has also occasionally referred to a third condition that the delay be the result of a lack of good faith by the plaintiff. Even if these conditions are met, the court still holds discretion as to the significance to be accorded a claim of laches in a given case. In this regard, consideration should be given, inter alia, to the mutual interests of the parties, and the nature of the suit and the requested remedy. In any case, the laches doctrine is restricted to exceptional, rare cases, and burden of proof is upon the defendant.
8. The mere fact of the passage of time does not prove that the State abandoned its rights. While it is clear from Beham’s correspondence that the Minister of Commerce and Industry knew of the existence of the documents, it can hardly be assumed that he would act to execute the Archives Law, and the knowledge of any unrelated governmental agency is not the same as the knowledge of a relevant civil servant, like the State Archivist. The Defendants did not produce any evidence that might show that a relevant entity was aware that the documents were held by Beham or his family, and the passage of time alone does not suffice to show an abandonment of the right.
9. It should further be noted that it would not appear that the Defendants suffered any harm as a result of filing the suit when it was filed. The Defendants’ version of events is that it is probable that Beham only “volunteered” to compose the drafts. Filing the suit after Beham and his colleagues had all died did not harm the Defendants, inasmuch as even had they all taken the witness stand, their testimony could not have added any weight to the version ultimately accepted. The version presented by the Defendants was neither probable nor consistent with common sense. While it would appear that the Defendants’ interests were not harmed in any material way, there is a significant public interest that the drafts be transferred to the State, which acted in good faith and without any malicious intent when it filed the suit.
10. In addition to the Archives Law and the general framework of property law, consideration should be given to the fact that the overarching normative framework of the present matter is that of the law of cultural property. The Beham Drafts of the Declaration of Independence form part of the cultural heritage of the State of Israel and part of our collective identity. The central issues of the restoring of cultural property generally arise in international contexts, but the subject is also relevant on the national level, in regard to the holding of cultural property by private individuals. There can be little doubt as to the significant public interest in returning the documents to the State. It is from this perspective that the issue of laches should be viewed. The present case is a clear instance of an action that is intimately tied to a public interest of broad and unique significance that cannot be permitted to retreat merely by reason of laches.