Sir Frederick
Pollock and Frederic William Maitland
The History of English Law
Before the Time of Edward I
1898, vol. I, Book
II, Chapter II, The Sorts and Conditions of Men, pp. 468-75
(Pagination
according to Cambridge University Press reprint, 1968)
[*468]
The Jew came to
England in the wake of the Norman Conqueror. That no Israelites had ever dwelt
in this country before the year 1066 we dare not say; but if so, they have left
no traces of their presence that are of any importance to us[2].
They were brought hither from Normandy, brought hither as the king’s dependants
and (the word will hardly be too strong) the king’s serfs. In the first half of
the twelfth century their condition was thus described by the author of the Leges
Edwardi in a passage which suggests that among the regalia to which the Norman
barons aspired was the privilege of keeping Jews of their own:—‘It is to
be known that all the Jews wheresoever they be in the realm are under the liege
wardship and protection of the king; nor may any of them without the king’s
licence subject himself to any rich man, for the Jews and all that they have
are the king’s, and should any one detain them or their chattels, the king may
demand them as his own[3].’
This gives us one of the two main ideas that our law in later times has about
the Jews: —he with all that he has belongs to the king. Bracton puts the
same thought in these words: —‘The Jew can have nothing that is his own,
for whatever he acquires, he acquires not for himself, but for the king; for
the Jews live not for themselves but for others, and so they acquire not for
themselves but for others[4].’
The other main idea is one which will not seem strange to us after what we have
said of villeinage. This servility is a relative servility; in relation to all
men, save the king, the Jew is free. He will require some special treatment,
for if he is to be here at all and do any good, he must be allowed to do things
that are forbidden to Christians, notably to take interest on money lent. And courts
of justice must pay some regard to his religion; [*469]
for example, they must suffer him to swear upon the roll of the law instead of
the gospels; but in general, if his royal master’s interests are not concerned,
he is to be dealt with as though he were a Gentile. A third principle is
accepted—the Jews
themselves would desire its acceptance—namely, that when the interests of
neither the king nor any other Christian are concerned, the Jews may arrange
their own affairs and settle their own disputes in their own way and by their
own Hebrew law1.
For about a century and a half they were an
important element in English history. In spite of the king’s exactions and of
occasional outbursts of popular fury, they throve. They were wealthy; they bore
an enormous weight of taxation2. We may
say that at times they ‘financed’ the kingdom; there were few great nobles who
had not at one time or another borrowed money from the Israelite, and paid the
two pence per pound per week that was charged by way of usury. What the great
folk did, the smaller folk did also. This money-lending business required some
governmental regulation. In the first place, the king had a deep interest in
it, for whatever was owed to a Jew was potentially owed to the king, and he
would naturally desire to have ready at hand written evidence that he could use
against his debtors. In the second placed, this matter could hardly be left to
the ordinary English tribunals. For one thing, they would do but scant justice
to the Jew, and therefore but scant justice to the king, who stood behind the
Jew. For another thing, it is highly probable that the Jewish ‘gage’ was among
Englishmen a novel and an alien institution since it broke through the old law
by giving rights in land to a creditor who did not take possession. In 1194
therefore an edict was issued about these Jewish loans3.
In every town in which the Jews lived, an office, as we should say, was
established for the registration of their deeds. All loans and payments of
loans were to be made under the eye of [*470]
certain officers, some of them Christians, some of them Jews, and a copy or
‘part’ of every deed was to be deposited in an ‘ark’ or chest under official
custody. A few years later a department of the royal exchequer—the
exchequer of the Jews—was organized for the supervision of this business1. At its head were a few ‘Justices of
the Jews.’ We hear for a while that some of these justices are themselves Jews,
and all along Jews filled subordinate offices in the court; and this was
necessary, for many of the documents that came before it were written in the
Hebrew language. This exchequer of the Jews was, like the great exchequer, both
a financial bureau and a judicial tribunal. It managed all the king’s
transactions—and they were many—with the Jews, saw to the exaction
of tallages, reliefs, escheats and forfeitures, and also acted judicially, not
merely as between king and Jew, but also as between king and Gentile when, as
often happened, the king had for some cause or another ‘seized into his hand’
the debts due to one of his Jews by Christian debtors. Also it heard and
determined all manner of disputes between Jew and Christian. Such disputes, it
is true, generally related to loans of money, but the court seems to have aimed
at and acquired a competence, and an exclusive competence, in all causes
whether civil or criminal in which a Jew was implicated, unless it was some
merely civil cause between two Hebrews which could be left to a purely Jewish
tribunal. For this reason we can read very little of the Jews in the records of
any other court, and until such rolls of the Jewish exchequer as exist have
been published, we shall be more ignorant than we ought to be2.
The system could not work well ; it
oppressed both Jew and Englishmen. Despised and disliked the once chosen people
would always have been in a society of medieval Christians; [*471] perhaps they would have been accused of
crucifying children and occasionally massacred; but they would not have been so
persistently hated as they were, had they not been made the engines of royal
indigence. From the middle of the thirteenth century onwards the king was
compelled to rob them of their privileges to forbid them to hold land, to
forbid them even to take interest1. But,
just as the lord rarely seizes his villein’s chattels save for certain reasons,
so the king rarely seizes the Jew’s chattels save for certain reasons; until
the seizure has been made, the villein or the Jew is treated as an owner and
can behave as such. Again, as the lord is wont to be content with the customary
services, heriots, merchets and so forth of his villeins and to tallage them
only at regular intervals, so the king, unless he is in some unusual strait,
will treat his Jews by customary rules; for example he will not exact from the
heir by way of relief more than one-third of the inheritances2. The king respects the course and
practice of his Saccarium Iudaeorum, the custom of his Jewry, much as the lord respects
the custom of the manor. Again, the king does justice upon and between his
Jews, as the lord does justice upon and between his villeins. The maxim that
what is the Jew’s is the king’s is not infringed when the king after a judicial
hearing decides that for a certain offence a certain Jew must pay a certain
sum, and just so the lord keeps in the background his right to seize all the
goods of every villein while his court is condemning this or [*472] that villein to a fine, a forfeiture or an
amercement. Again, the king can grant privileges to his Jews—Henry II.
gave them a charter and John a magnificent charter—without emancipating
them or fundamentally changing their legal condition1. Lastly the lord when his own interests
are not at stake is content that, as between Jews, Jewish law shall be
administered by Jewish judges.
The analogy may not be perfect. It is but
too possible that in his dealings with his Jews the king’s rapacity was checked
by few considerations that were not prudential, and that the course and
practice of his Jewry extracted from them the utmost that a far-sighted
selfishness could allow itself to demand. The villein was a Christian; the
custom of the manor had ancient roots and was closely akin to the common law.
The relation between king and Jew was new, at least in England, and it was in
many respects unique; the Jew belonged to a despicable race and professed a
detestable creed. For all this, the analogy holds good at the most important
point: the Jew, though he is the king’s serf, is a free man in relation to all
other persons. We call him a serf. We have no direct authority for so doing,
for we have seen no text in which he is called servus; but Bracton has gone very near this word
when he said that what the Jew acquires he acquires for the king. Not only can
the king mortgage or lease his Jewry, his Iudaismum, as a whole2,
but there is one known case in which an individual Jew was first given by the
king to his son and afterwards enfranchised; donavimus libertati was the phrase used; hereafter in
consideration of an honorary rent of a pair of gilt spurs he is to be free from
all tallages, aids, loans and demands3.
The Jew’s freedom in relation to all others
than his [*473] master seems to have been amply
protected by the exchequer. So far as we can see he found there a favorable
audience. He could sue and be sued, accuse and be accused, and the rules of
procedure, which in the main were the ordinary English rules, were not unduly
favourable to his Christian adversary. He ‘made his law’ upon the books of
Moses; he was not required to do battle; he might put himself upon a jury one
half of which would consist of men of his own race and creed. He enjoyed a
splendid monopoly; he might frankly bargain for interest on his loans and
charge about forty-three per cent. per annum1.
Unless we are mistaken, no law prevented him from holding lands2, though it is not until late in the day
that he appears as a landholder on a large scale, and when this happens it is a
scandal that cries aloud for removal. He had a house, sometimes a find house,
in the town. His choice of a dwelling place seems to have been confined to
those towns which had ‘arks,’ or as we might say ‘loan registries’; he would
hardly have wished to live elsewhere; but there were boroughs which had
obtained royal charters enabling them to exclude him3. Many lands were gaged to him, but,
though we do not fully understand the nature of these gages, it seems to us
that the Hebrew creditor seldom took or at all events kept, possession of the
land, and that his gage was not conceived as giving him any place in the scale
of lords and tenants. However late in Henry III’s reign it became apparent that
Jews were holding lands in fee and that they had military tenants below them;
they were claiming the wardships and marriages of infant heirs, and were even
daring to present Christian clerks to Christian bishops for induction into
Christian churches4. This
was not to be borne. In 1271 the edict went forth that they were no longer to
hold free tenement, though they might keep their own houses5. Some galling restrictions had already
been laid upon them at the instance of the church; they were to fast in Lent;
they were to wear distinctive badges upon their garments; they were not [*474] to keep Christian servants or have intercourse
with Christian women; they were not to enter the churches; they were to acquire
no more schools or synagogues than they already possessed.
As between Jew and Jews, if the king’s
interests were in no wise concerned, Jewish tribunals administered the Jewish
law (lex Iudaica).
Questions of inheritance, for example, do not come before the ordinary English
tribunals, and come but rarely and incidentally before the exchequer of the
Jews. When Hebrew dealt with Hebrew the document, the shetar (Lat. starrum, Fr. estarre) which recorded the transaction was
written in the Hebrew language and the parties to it, instead of affixing their
seals (some Jews had seals), signed their names1.
Often such a document was executed in the presence of official witnesses and
was sanctioned by an oath upon the law. The precise nature of the tribunals
which did justice between Jews we can not here discuss; it is matter for those
who are learned in Hebrew antiquities; but to all appearance they were not mere
boards of arbitrators but courts with coercive power2. Whether they aspired to execute their
decrees by physical force we do not know; but apparently, like our own
ecclesiastical courts, they could wield the weapon of excommunication, and this
spiritual sword may have been sufficient for the accomplishment of all their
purposes3. To Gentiles at all
events it seemed that the Jews had ‘priests’ and ‘bishops’ (presbyteri, sacerdotes, episcopi) who did justice among them. Over the
appointment of these officers the
king exercised a control, not very unlike that which he exercised over the
appointment of English bishops4. The
Jews of each town, or of each synagogue, and again all the Jews of England,
constituted a communa
with which he could deal as a single whole. He could impose a tax or a penalty
upon it, and leave it to settle as between its various members the final
incidence of the impost. [*475]
Whether the sojourn
of the Jews in England left any permanent marks upon the body of our law is a
question that we dare not debate, tough we may raise it. We can hardly suppose
that from the Lex Iudaica, the Hebrew law which the Jews administered among
themselves, anything passed into the code of the contemptuous Christians. But
that the international Lex Iudaismi1 perished in 1290 without leaving any memorial of itself is by no means
so certain. We should not be surprised to learn that the practice of preserving
in the treasury one ‘part’ (the pes or ‘foot’) of every indenture
which recorded a fine levied in the royal court, was suggested by the practice
of depositing in an official ark one copy of every bond given to a Jew. Both practices can be traced to the
same year, the year 11942. Again,
very early in Edward I.’s day we hear that ‘according to the assize and
statutes of the king’s Jewry, his Jews ought to have one moiety of the lands,
rents and chattels of their Christian debtors until they shall have received
their debts3.’ A few years
afterwards, and just before the banishment of his Jews, a famous statute gave a
Christian creditor a very similar remedy, the well-known writ of elegit, money-lender4. But at any rate we ought to remember
the Jew when we make our estimate of the thirteenth century. Landowners are
borrowing large sums, and the enormous rate of interest that they contract to
pay, if it shows the bad ness of the security that is offered for the loan—the Jew holds his all at the king’s
will and usury does not run against infants; the security therefore is very
bad—shows also the intensity of the demand for money. Many an ancient tie
between men,—the tie of kinship, the tie of homage—is being
dissolved or transmuted by the touch of Jewish gold; land is being brought to
market and feudal rights are being capitalized.
[1] Three volumes of Publications of the
Anglo-Jewish Historical Exhibition issuing from the office of the Jewish
Chronicle (1888) contain valuable essays, documents, bibliographies, etc. We
shall make our references chiefly to these. Prynne’s Demmurrer, Tovey’s Anglia
Judaica, Mador’s chapter on the Exchequer of the Jews, and the plea roll
printed in Cole’s Documents Illustrative of English History are among the most
important sources of information. See also Jacobs, The Jews of Angevin England.
[2] Liebermann, Zeitschrift für
Geschichtswissenschaft, i. 182.
[3] Leges Edw. Conf. c. 25.
[4] Bracton, f. 386 b.
1 There is a good deal of evidence which
tends to show that in the first half of the twelfth century the Jew’s legal
position was not so bad as it afterwards became. The doctrine, not without
supporters in England, which teaches that the disabilities of the Jew were due,
not to the mere fact that he was a Jew, but to the fact, real or presumed, that
he was a usurer and therefore living in mortal sin, seems to us groundless. Our
law did not regard usury as any offence in a Jew; on the contrary, it enforced
his usurious contracts for him.
2 Gross, Publications, i. 195.
3 Hoveden, iii. 266.
1 Gross, Publications, i. 174.
2 The earliest extant roll was printed in
Cole’s Documents; it is that for 3-4 Henry III. A list of the other rolls is
given in Publications, iii. P. xiv. Occasionally cases in which Jews area
concerned come onto the ordinary plea rolls and some are printed in the
Placitorum Abbreviatio and in Bracton’s Note Book. References to these are
given in Publications, iii. 4, 24. Cases of small debts were heard by the
constables of the royal castles; the court of the University of Oxford claimed
pleas between Jew and scholar, and in London the civic court held plea touching
land between Jew and Gentile; but on the whole the competence of the exchequer
seems to have been exclusive.
1 Edict of 1271 forbidding them to hold land,
Foed. i. 489; prohibition of usury, Statutes of the Realm, i. 221. See also the
ordinance printed by Gross in Publications, i. 219.
2 Gross, Publications, i. 192, 225.
1 Rot. Cart. Joh. P. 93. The charter of Henry
II. seems to be lost. For a charter granted by Richard, see Foedera, i. 51.
2 In 1255 Henry III. Mortgaged his Jewry to
his brother Richard: Tovey, p. 135; Mat. Par. Chron. Maj. V. 488. Afterwards
Henry assign ed it to his son Edward, who assigned it for two years to two
Coursin merchants: Tovey, pp. 157-9.
3 Tovey, p. 185 (54 Hen. III.). In France the Jew seems to have been
distinctly called servus;
Viollet, Histoire du droit civil, p. 356; Luchaire, Manuel des institutions, p.
582.
1 Gross, Publications, i. 207.
2 Bracton, f. 13. In feoffments made by
certain convents it is common to find a stipulation that the land is not to be
sold or gaged to Jews.
3 Gross, Publications, i. 190.
4 Gesta Abbatum, i. 401; Liber de Antiquis Legibus,
234.
5 Foed. i. 489.
1 A collection of Shetaroth or ‘stars’ has
been published by M. D. Davis: Publications, vol. ii. As to the use of seal see
p. 285. Tovey, p. 183, gives an engraving of a seal appended to a charter of
feoffment,
2 See the volume of Shetaroth, pp. 4, 109,
136, 143, 178, 298, 336.
3 Henry III. permits the ‘masters of the law’
to pronounce ‘summam excommuncationem’ against those who will not pay their
promised contributions to the London cemetery; Tovey, p. 127; Jacobs,
Publications, i. 46.
4 In 1257 Henry III. deposed ‘bishop’ Elyas
and declared that for the future the Jews might elect their own sacerdotes: Madox, Exch. i. 261.
1 Y. B. 32-3 Edw. I. p. 355: ‘ley de Jwerye.’
2 In our chapter on Ownership and Possession
we shall trace the preservation of the pedes finium to this point. See vol. ii, p. 97.
3 Madox, Exchequer, i. 247 from a roll of 3-4
Edw. I; Statutes of the Realm, i. 221.
4 Stat. West. II. 13 Edw. I. c. 18.