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]

§ 7. The Jews[1].

 

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 fr 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.