The Legal Position of the Jews in Pre-Expulsion England, as shown by the Plea Rolls of the Jewish Exchequer

<plain_text><page sequence="1">The Legal Position of the Jews in pre-expulsion England, as shown by the Plea Rolls of the Jewish Exchequer* By Cyril M. Picciotto, M.A. Ladies and Gentlemen,?Your President, Sir Lionel Abrahams, by asking me to undertake the examination of the Plea Rolls of the Jewish Exchequer, has, in effect, entrusted me with a heavy task, which is no less than to attempt to give a reasoned view of the legal position of the Jews in England prior to the expulsion. While I shall make all endeavour to avoid an undue technicality, it will yet be necessary, if such a mine of material is to be adequately worked, to refer not infrequently to legal institutions and conceptions of the period ; for it would be idle to attempt to answer the question, How did the legal position of the Jews compare with that of the Gentiles ? ?unless we can say with some accuracy what that of the Gentiles was. So that while I shall reduce technicalities to a minimum, in so far as some resort to them may be necessary, in order to get at a better understanding of the question which we have to answer, I hope you will pardon me. The Exchequer of the Jews is no novelty to the members of this Society. As long ago as 1902 Mr. J. M. Rigg published, for the Jewish Historical and Seiden Societies jointly, his volume entitled Select Pleas, Starrs, and other Records from the Rolls of the Exchequer of the Jews, which contains selections from the Exchequer Rolls covering the period 1220 to 1284, a volume distinguished by a most learned and masterly introduction giving a survey of the position of the Jews in pre-expulsion history and law. In the same year (1902) Mr. Rigg read a paper on the Jewish Exchequer before this Society. In 1910 the same author began his Calendar of the Plea Rolls of the Exchequer of the Jews,1 a work which has provided the richest material for the 1 Two vols., Ballantyne, Hanson &amp; Co., 1910.</page><page sequence="2">68 THE LEGAL POSITION OF THE JEWS. remarks I shall have to offer this afternoon. Dr. Stokes, one of our former Presidents, draws plentifully from the Plea Rolls of the Exchequer in his Studies in Anglo-Jewish History.2 In the face of all this I do not think that I need do more than remind you quite briefly of the nature and functions of the Jewish Exchequer. Historically, it grew out of the Great Exchequer, perhaps the earliest administrative organ known to English law?it emerges more or less clearly in the reign of Henry I.3?which combined, in an age when State powers are imperfectly differentiated, judicial with its administrative functions in all matters relating to the imposition and collection of the King's taxes. The Barons of the Exchequer remained in our system as judges until quite recent times ; and to this day on every morrow of St. Martin, the King's judges and the Chancellor of the Exchequer take their seats together for the ceremony of the pricking of the sheriffs. We do not know the exact date of the foundation of the Jewish Exchequer. But we do know that shortly after the heavy anti-Jewish rioting of 1190, Archae or Registries of Bonds were set up in all the principal towns.4 " A few years later," according to Pollock and Maitland,5 who venture on no date, the Scaccarium Judaeorum or Exchequer of the Jews was established. In Pollock and Maitland's book is to be found a clear and concise account of the functions of this Exchequer. " This Exchequer of the Jews," they say, " was, like the Great Exchequer, both a financial bureau and a judicial tribunal. It managed all the King's transactions with the Jews?and they were many?saw to the exaction of tallages, reliefs, escheats and forfeitures, and also acted judicially, not merely as between King and Jews but also between King and Gentile, when, as often happened, the King had for some cause or other seised 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."6 This, in broad outline, is the body with which we shall be principally concerned. An examination of its records enables us to fill in a great deal of this 8 Printed for and published by the Jewish Historical Society 1913. 3 See Maitland, Constitutional History, 63. Rigg, Sei. Pleas, p. xviii. 5 History of English Law, vol. i. p. 470. 6 Ibid., vol. i. p. 90.</page><page sequence="3">THE LEGAL POSITION OP THE JEWS. 69 outline sketch. These records are evidence of the first importance of the condition and status in the law of the Jews of the period. Before I lay before you the conclusions which I would submit that evidence establishes, it will be well to take some note of the views of competent authorities on the question. I will begin with the great book of Sir Frederick Pollock and the late Professor Maitland on The History of English Law. Their view is summed up in the following passage : " The Jew's relation to the King is very much like the villein's relation to his lord. In strictness of law whatever the Jew has belongs to the King ; he acquires for the King as the villein acquires for his lord. 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."7 This passage clearly follows the authority of dicta such as that found in the Leges Edwardi?" the Jews and all that they have are the King's," or of Bracton, " 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, and so they acquire not for themselves, but for others." 8 Mr. L. Abrahams (as he then was) takes in general, in his book on the Expulsion, a view unfavourable to the Jews.9 Pollock and Maitland incline to the view that a Jew might hold land.10 But Mr. Bigg, who shares their general view and regards the Jews as merely part of the royal machinery for raising money, commits himself definitely to the statement that not until 1275 was a Jew capable of so much as holding a ten years' agricultural lease.11 Dr. Stokes, in his "Relationship between the Jews and the Royal Family of England in the Thirteenth Century," delivered as a Presi? dential address to this Society in 1915, cites with approval12 Stubbs' statement that " the Jews, like the forests, were the special property of the King, and as property worth cultivation," they had peculiar privileges and a very dangerous protection, and summarises his opinion 7 Vol. i. p. 471. 8 Braeton, F. 386b. 9 The Expulsion of the Jews from England in 1290, Oxford, Blackwell, 1895. 10 History, vol. i. p. 473. n Sei. Pleas, p. xiii. 12 Transactions, vol. viii. p. 161; c/. also bis Studies in Anglo-Jewish History, p. 5.</page><page sequence="4">70 THE LEGAL POSITION OP THE JEWS. thus : "In the Statute de la Jewerie there is used the expression with regard to the relationship of the Jew to the King, 6 Au roi, ky serf il est/ This phrase, as to the Jew and the King, whose serf he is, seems to put the whole question in a nutshell. Hence the possibility of the ehevage (a Jewish poll-tax) and the yellow badge." I must not pass by the striking though perhaps not very dispassionate paper of Mr. Frank Schechter in the Jewish Quarterly Review? which seems almost to delight in painting black the legal condition of the mediaeval Jews. In Mr. Schechter's opinion, "? We must conclude that the Jews of mediaeval England have a status composed of legal duties and in? capacities alone." These quotations are not and were not intended to be exhaustive. But I think they are typical and represent the best and most learned opinion. For the other side, there is but one first-class authority, that of Joseph Jacobs. In his classic Jews of Angevin England, Jacobs works over a period rather earlier than that covered by the Plea Rolls. We shall not be far out if we take it roughly that his con? clusions, drawn from the Pipe Rolls, apply to the twelfth-century Jewish life, while the Plea Rolls are our guides for the thirteenth. I mention this because a generalisation which is true of one century is not necessarily true of another at a time of such rapidly developing in? stitutions as the early middle ages. But be that as it may, in regard to the period with which he was concerned and into which he had probed pretty deeply, Jacobs is far from accepting the prevalent view of Jewish rights. In general, we may take him to say that the twelfth-century Jew was by no means the oppressed and rightless being he is popularly supposed to have been. As to his main doctrine, he is in distinguished company; for Pollock and Maitland admit that &lt;? there is a good deal of evidence which tends to show that in the first half of the twelfth century the Jews' legal position was not so bad as it afterwards became." 14 But Jacobs is not so happy in one important argument which helps him to this conclusion. When he attempts to explain Jewish disabilities as accruing to the Jew qua usurer and not qua Jew, he is on insecure ground ; for ex hypothesi usury, a delict under canon law, was no offence in a Jew, whom canon 13 New Series, vol. iv. p. 12L 14 Hist., vol. i. p. 469, footnote.</page><page sequence="5">THE LEGAL POSITION OF THE JEWS. 71 law did not bind, as both Maitland and Mr. Frank Schechter, in the paper to which I have already alluded, have shown. " For nearly every one of the payments made by an English Jew,55 asserts Jacobs, " I can produce evidence of similar fines, &amp;c, made by other English? men.55 18 Moreover, he gives a long list of manors in Jewish hands in supporting his contention that in the twelfth century there was nothing against a Jew holding land.16 What I have said is, I hope, sufficient to indicate that there is one weighty opponent of the commonly received doctrine of Jewish status, at any rate in regard to the twelfth-century Jew, With this exception, important though it is, the balance of com? petent opinion leans heavily to the conclusion that the mediaeval pre-expulsion Jew possessed a special and inferior status. He enjoyed, perhaps, considerable prosperity, a certain freedom in regard to the practice of his religion, and the protection of the King. But this was all with an ulterior object; his usurious contracts were enforced only in order that the King might have a richer source of revenue. He was, according to the prevailing school, rather comparable with a missionary caught and fattened by South Sea islanders in order that he might provide the more succulent repast. I will now invite you to consider whether the evidence of the Exchequer Rolls confirms you in the prevailing belief, or tends to weaken your allegiance to it. The records with which we are concerned run from the beginning of the reign of Henry III. (1216) until the Expulsion. They consist, for the most part, of documents which the modern practitioner would call the pleadings in the action, i.e. the statement of facts upon which each side relies, and the decision of the Court thereon. These form the most important part. There are, in addition, acknowledgments of moneys received, and some old writs going down from the King to the Barons of the Exchequer and Justices of the Jews. The pleas show that the Exchequer Court was presided over by Justices of the Jews (Justitiarii Judaeorum), and from a careful exami? nation it is quite possible (if the labour were worth while) to compile a full chronological list of the justices in their due succession. They 15 Jews of Angevin England, p. 320. 16 Ibid., p. 309.</page><page sequence="6">72 THE LEGAL POSITION OF THE JEWS. seem to have enjoyed equal rank with the rest of the King's judges, for they have the title dominus, e.g. Sir H?mo Hauteyn, common to the judges of the period and surviving even to this day in the knight? hoods bestowed upon High Court judges on their appointment. The Court administered what was known as Lex et consuetudo Judaismi or sometimes Assisa Judaismi?assize of Jewry, "assize" being used in the sense in which we speak of the Assize of Arms, i.e. any body of rules. What was the content of this body of law relating to the Jewry ? I think it had clearly two parts, statute law (perhaps " enacted " would be more accurate, for " statute " in the thirteenth century is a vague quantity), and common or unenacted law, and by this is meant the precedents and decisions of the Jewish Exchequer themselves, traceable to the ancient custom of the realm. Jacobs11 has compiled an Assize of Jewry, which, though incomplete, is a courageous attempt to give us a code of the rules of canon and civil law regulating the position of the Jews at any rate in the twelfth century. Whether, in trying to collect the law which bound the Court we are dealing with, it would be wise to include any canonical regulation, is doubtful. I should imagine that the Jewish Exchequer, which sat after all in the thirteenth century, was quite untrammelled by the canon law. The enactments, which are of cardinal importance for our purpose, are four in number. There is, firstly, the Charter of Liberties, granted to the Jews by John in 1201,18 the preamble of which shows that the Charter is a confirmation of previous privileges first granted by Henry I. Judaei non intrabunt in f taciturn nisi cor am nobis, the firm guarantee of the autonomous jurisdiction of the Jewish Exchequer, is boldly set forth. Then there is the Mandate 19 of 1253, which charged the Justices of the Jews with the enforcement of certain administrative or police regulations. The Provisions of Jewry of 1269 20 annulled all fee debts secured as fee-tenures of land, and prohibited the sale of a debt by a Jew without licence of the King, and so, it may be noted, in passing, seriously arrested the development of the negotiable instrument. In 1271 we get the Mandate touching Lands and Fees of Jews in 17 Jews of Angevin England, p. 329. 18 Bigg, Sei. Pleas, p. 1. Ibid., p. xlix. 20 Ibid., p. xlix.</page><page sequence="7">THE LEGAL POSITION OE THE JEWS. 73 England,21 which prohibited the holding of freeholds by Jews and annulled existing grants. Lastly we get the Statute and Articles de la Jewerie,22 one in the year 1275, the other a little later, which made drastic restrictions on the practice of usury. ? These various enact? ments are only mentioned now. It will be necessary later on to look into them more closely. These, together with customary law and precedents, formed the law which the Jewish Exchequer administered. What was its scope and jurisdiction % It is safe to say that, in civil matters, the pledge of John's Charter was kept?Judaei non intrabunt in placitum nisi coram nobis. For if the matter were one between Jew and Jew, it was one for a Jewish tribunal or Beth Din of that time to adjudicate. If it were one between Jew and Christian, it was for the Jewish Exchequer. The main business of the Court, then, was the determination of civil disputes between Jew and Christian, and the overwhelming majority of its records are concerned with such. I have been able to discover only one exception to this. It is a London plea of 1267, and shows a decree of the Court settling in the woman's favour a dispute as to whether an alleged marriage between Milla, widow of Saulot Motun, and Master Samuel of Bolum, was a good marriage; for if not, as Milla claimed, she should have free administration of her chattels. The decision of the Exchequer was given after, as the record tells us, " debate had ensued among the Masters of the Jewish law." 23 Now a not inconsiderable number of the pleas?perhaps roughly one-sixth of the whole?relate to suits in which the parties are all Christian. In some cases this can be explained by the fact that the matter arose out of a Jewish transaction, or that the King slips into the shoes of the Jewish creditor, appropriates the debt on account of a tallage payment, and proceeds against the Christian debtor. The following, an Essex plea of 1267, is typical: " Be it had in remembrance that Mandate went to the Sheriffs of Essex and Kent by writ of the King that of the goods and chattels of Master Laurence de Sancto Martino, Bishop of Rochester, they cause to be levied ?118 105. owing by him to the King upon account of a debt due by Walter, son of Robert de 21 Rigg, Sei Pleas, p. Ii. 22 Ibid., p. lv. 23 Plea Polls of the Exchequer of the Jews, vol. i. p. 152.</page><page sequence="8">74 THE LEGAL POSITION OF THE JEWS. Hakelo to Abraham, son of Aaron." 24 Such instances are common. But it is not so easy to account for the not inconsiderable number of suits in which there is nothing whatever on the face of the record to show why they came into the Jewish Exchequer at all. In point of time such suits are spread over the whole of the Exchequer Rolls. I am inclined to suggest, though not without some hesitation, that the Jewish Exchequer provided such an expeditious means of enforcing legal rights that resort was had to it by Christians in certain cases who desired a Court where they could obtain a rapid settlement of their disputes. From the fact that a fairly constant element in such pleas is that the claim seems to arise out of the holding of land, it may be suggested that there was a tendency to resort to the Exchequer of the Jews in claims for money secured on land. When we try to determine whether the Jewish Exchequer dealt with criminal matters, we are on debatable ground. The root of the matter is to be found in John's Charter. " Know that we have granted and by our present Charter confirmed to our Jews in England, that the breaches of right which shall occur among them, except such as pertain to our crown and service, as touching homicide, mayhem, deliberate assault, housebreaking, rape, larceny, arson, and treasure trove, be examined and amended among themselves according to their law, so that they may administer their own justice among them? selves." 25 Whether the words " their own justice among them? selves " mean that offences outside the Pleas of the Crown were to be tried in the autonomous Jewish Courts, as in the case of civil disputes, in which no Christian was concerned, or that offences less than Pleas of the Crown in which Christians were concerned, were to be tried in the Jewish Exchequer, is highly obscure. In any event we may take it that Pleas of the Crown did not, according to this, come into the Exchequer. Mr. Rigg26 reviews a certain number of instances of criminal offences committed by Jews, which were tried outside the Jewish Exchequer, and concludes his survey with the remark : " These notes of practice suffice to show that the exclusive jurisdiction from time to time affirmed to the Justices of the Jews was subject to certain 24 Plea Bolls of the Exchequer of the Jews, vol. i. p. 5. 25 Bigg, Sei. Pleas, p. 2. 26 Ibid., p. xxii.</page><page sequence="9">THE LEGAL POSITION OF THE JEWS. 75 important reservations." 27 But this does not really carry us much further; for, on scrutiny, one of his instances is a case of forgery, one the Norwich circumcision case (a very special offence), one coin clipping, also a special offence, and one a charge of disseisin in respect of tenements in the City of London remitted to the Mayor's Court. Now the Exchequer Rolls themselves afford us some assistance, though we shall do well to remember at every point that in speaking of crimes we are not yet on sure ground ; for in the thirteenth century, the distinction, so manifest to a modern, between criminal and civil offences, i.e. offences against the State as opposed to offences against the individual, is as yet imperfectly drawn. But as to murder there can be no doubt. And we find an entry for Lincolnshire in 1220,28 in which the Justices are to have before them the men of Walter de Evermen, who slew Moses of Lincoln, and the Christians that slew Sarra, wife of Deulecresse, and Deulecresse himself. This is no evidence that the Exchequer tried for murder ; but it is evidence that it con? cerned itself with it. But in the Gloucester Murder Case of 1220 we do get such evidence.29 Abraham Gubbay was tried, and, as far as the record shows, acquitted, for the murder of Solomon Turbe, on the findings of a jury or " inquest," for it is early yet to speak of juries. There is an unmistakable murder trial in 1278, when Hak of Canterbury and Abraham of Dorking were charged with the murder of Matthew of Ockham.30 There was a mixed " inquest" of Christians and Jews, and the accused were acquitted. There are also records relating to the following crimes: Robbery with violence (both parties Jews),31 burglary,32 receiving stolen goods.33 It is there? fore not unsafe to conclude, from these instances, that the Jewish Exchequer had acquired a cognisance of crime as well as of civil wrongs, in spite of the limits laid down in John's Charter to which I made earlier allusion. The jurisdiction of the Court was therefore extensive. We have next to ask ourselves with what kind of procedure it worked in practice. The typical action (though it must be remembered that 27 Bigg., Sei. Pleas, p. xxii. ? Ibid., vol. i. pp. 42, 51. 31 PZea Polls, vol. i. p. 103. 33 Ibid., vol. i. p. 280. 28 Plea Polls, vol. i. p. 31. 30 Sei Pleas, p. 105 32 Ibid., vol. i. p. 176.</page><page sequence="10">76 THE LEGAL POSITION OE THE JEWS. every conceivable kind of civil action can be found in the records) is the action on the bond. It was for the Jew to prove the principal, the Christian the interest. A common defence to such an action is the non est factum: It is not my chirograph or bond. Then the " in? quest " or mixed jury of Jews and Christians comes in, to speak to the question of fact. The " inquest" or jury is not the jury system as we know it, i.e. a body which judicially finds and determines facts, but rather a set of witnesses, chosen for the very quality which, in our modern idea, is the worst recommendation for a juryman?namely, propinquity either in neighbourhood or personal knowledge. Then comes the judgment?A " goes without day "?lie is the successful party?and B (4 is in mercy "?he is the loser. The hearing seems to be fair and thoroughly judicial. It is noteworthy that the mediaevals, in so many respects our masters and betters, quite early discovered the principle towards which the heavy-handed toleration of the eighteenth and nineteenth centuries blundered its way?namely, that the only satisfactory sanction for a man's oath is that which is most binding upon his individual conscience. In other words, the Jew was sworn on his Pentateuch 600 years before the Serjeant-at-Arms ushered Charles Bradlaugh out of the House of Commons. I now come to what is by far the most important question raised by an examination of the Plea Rolls?namely, what do they tell us about the Jewish holding of land. I call this the most important question deservedly, I think. It is even a test question. For if these records clearly establish that Jews did in fact hold land, then the prevailing view of the status of the Jews at this period must be drastically revised ; indeed, I am not sure that its very foundations are not sapped. For the holding of land is the keystone of the constitutional arch in the Middle Ages. The whole of the legal and political structure is built up around it. " Feudalism," says Maitland, " is a state of society in which all or a great part of public rights and duties are inextricably interwoven with the tenure of land, in which the whole governmental system?financial, military, judicial, is part of the law of private property. ... It is utterly impossible to speak of our mediaeval constitution except in terms of our mediaeval land law." 24 I am not 34 Const. Hist., p. 24.</page><page sequence="11">THE LEGAL POSITION OF THE JEWS. 77 sure that it would be an exaggeration to say that if a Jew could hold land, he could do anything. In the opinion of Mr. Rigg,35 for example, an insuperable bar to a Jew holding land was his inability to do homage or fealty?in other words his incapacity for the feudal tie of which the essence is allegiance. There is one entry in the Plea Rolls of the year 125336 containing a form of words which makes, as I submit, that view difficult to maintain. " The Jews," says the record, " come and say upon the faith by which they are holden to the King and upon their oath, that the handwriting is that of Elias." Here we have, I think, a clear indication of a nexus between King and Jews which, to say the least, has a strong savour of feudalism. We may now consider certain entries in the Plea Rolls regarding the holding of land ; and it will be most convenient to take the period first prior to and then after 1271, the year of the first Mandate as to landholding by Jews. In 1244 we find an acknowledgment that Benedict, son of-, demised to Thos. de Sancto Eadmundo a place in the parish of London in consideration of an acquittance against one Leo Blund.37 In 1253 there is an acknowledgment of a demise by Aaron of York to Adam de Bayllol of the Manor of Wyk with all its appurtenances for a term of eight years.38 In 1267 Benedict, son of Abraham, and Belasez his wife, ask to be warranted by John and Petronilla de Windsor of 39 acres of land and a park, with appurtenances and pasture.39 There is a most important entry for the year 1253.40 The Sheriff of Kent is directed, since Salle, Jew, has failed to pay tallage, to inquire by inquest what lands he held on a certain date, and what they be worth for sale, saving the service due to the lord of the fee. The significance of the last few words will be observed. A similar entry occurs for the same year in respect of Elias of Chippenham, Jew of Bristol.41 I need not further multiply instances; and those which I have 35 Sei. Pleas, p. xiii. 37 Ibid., vol. i. p. 86. 39 Ibid., vol. i. p. 143. 40 3d. 6 Plea Polls, vol. i. p. 112. 38 Ibid., vol. i. p. 125. Pleas, p. 29. ? Ibid., p. 30.</page><page sequence="12">78 THE LEGAL POSITION OP THE JEWS. selected are those which seemed to me to show a clear holding of land as distinct from " gages," i.e. lands held merely as security for a money debt. But there is a further and better reason why we may regard the law for the Jewish holding of land prior to 1271 as made out, and that reason is the Mandate of 1271 itself. " We have provided," it runs, " that no Jew do have a freehold in manors, lands, tenements, fees, rents, or tenures of any kind whatsoever, by charter, grant, feoffment, confirmation, or any other kind of obligation." Jewish rights are next reserved in regard to houses in cities, boroughs, &amp;c, and then it goes on : ' 4 Touching lands and tenures, however, of which Jews were enfeoffed [please note the technical expression to denote feudal service] before the present statute and which they now hold, it is our pleasure that such infeudations and grants be altogether annulled, and that these lands and tenements remain to the Christians who demised them to the Jews." This passage puts it beyond doubt that the holding of land by Jews was no isolated or exceptional occurrence, but was a social and legal reality of such proportions that an enactment was required to deal with it in the most ample and precise language imaginable. Now, if this Mandate had been carried into effect, only one thing could have resulted?and of that one thing the Exchequer Rolls would have afforded clear evidence?namely, that Jewish landholding is abolished with a stroke of the pen, subject to the exception regarding house-property in boroughs and cities. But nothing of the kind appears to have happened. In 1277 we find an unblushing acknowledgment of the demise by Sir Henry de Berkeley to Aaron of Gloucester of the entire manor of Stanley with all its appurtenances for a term of ten years,44 and there is a similar acknowledgment for the year 1273 of a demise by Will, de Middleton to Simon Gubiun of 140 acres of arable land in Stapleford for a term of six years, the grant being witnessed by Sir H?mo Hauteyn and Sir Robert de Ludham, both Justices of the Exchequer of the Jews.43 It might be suggested that the new dispensation of 1271 was observed with only a few exceptions such as I have cited. But it is very odd that the earlier Mandate of 1269 which expressly abolished 42 Sei Pleas, p. 93. 43 Plea Rolls, vol. ii. p. 45.</page><page sequence="13">THE LEGAL POSITION OP THE JEWS. 79 all fee-debts held by Jews?i.e. debts secured to the Jewish creditor by lands held by the debtor in fee, was, for practical purposes, a dead letter. There are quite a dozen instances of actions on such fee-debts proceeding as though there had been no mandate. I think, there? fore, that it is necessary to draw one of two conclusions. Either the Jews were sufficiently powerful to disregard the law, or the mandates as to fee-debts and the holding of land were intended rather for popular consumption than for actual effect. The evidence of the Plea Rolls, and its main features I have laid before you, may be summarised to the following effect. Mediaeval law, which is accustomed to work in groups, it may be the vill, the township, the borough, finds itself confronted with a new problem, which again it seeks to solve by means of the corporate unit. Instead of the borough or the township, it is the Jews of Cambridge who must pay this, or the Jews of Hereford who must answer that. The. channel of operation is often the synagogue?the focus of all Jewish activity in the Middle Ages?as we may see from a typical and common entry like this: " Mandate to the Constable of the Tower that he cause proclamation to be made in the synagogues of the Jews of London, for two or three Sabbaths that any Jew or Jewess that may have claim of debt to make against Richard de Bonnefeud must be before . . . the Justices to account." 44 Actions between Jews and Christians are tried in mixed Courts, in which a high standard of impartiality is maintained, and such rapid and efficient procedure that there is evidence to support the view that suits in which no Jewish element is present find their way to it. The Jews acquire land; and that their titles are indisputable is shown conclusively by the fact that an enactment is required to annul them. The Plea Rolls tell, of course, their story of tallage and imposi? tion. There are fees to be paid on many occasions; there is ample evidence of the restriction and regulation at every turn of the life of the Jews. But even these things (and there is an answer to them, as I hope to show you) are as nothing compared with the whole trend and atmosphere of fairness and scrupulous impartiality between Jews and Christian which these records reveal. The mere reading of m Plea Rolls, vol. i. p. 194.</page><page sequence="14">80 THE LEGAL POSITION OF THE JEWS. one or two typical pleas will convey to you this atmosphere better than any merely second-hand description. Although the sum of the evidence yielded by the records of the Jewish Exchequer cannot, I suggest, but make necessary a large modi? fication of the popular view, I should be disingenuous did I attempt to divert your gaze from the not inconsiderable difficulties that still re? main in the way of a contrary theory. The familiar dictum of the Leges Edwardi cited by and embodied in Bracton, has almost certainly coloured the whole of the subsequent teaching and writing, which would in all probability have taken a very different course if Bracton had not preserved it and made it of classical authority. " The Jew can have nothing that is his own," runs the text, " 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 them? selves but for others." Has not this a familiar ring \ Let us com? pare it with the following rough translation of a very famous text in Roman Law: " Therefore slaves are in a state of submission to their lords, and whatever is acquired by the slave is acquired for his lord." 45 Here was the solution of all the mediaeval lawyer's troubles, a ready-made formula which enabled him to give the Jew a place and classification in the legal system. When we remember how great was the permeation of the Roman Law at this period, it is not difficult to realise how much the whole conception of the Jewish status owes to the titles in slavery in the Institute and the Digest. There is even one instance in which an individual Jew is said to have been first given by the King to his son and afterwards enfranchised (donavimus liber tati) a proceeding, which if it actually happened, must have been based upon the manumission of the Roman Law.46 It rests upon the authority of Tovey, and is cited, apparently with acceptance, by Pollock and Maitland, who in the same context, be it noted, make the following observation : " We call the Jew 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." So that the matter all comes back upon the same point, Bracton's not altogether nappy dictum 45 Justinian, Institutes, i. 9. 46 Quoted by Pollock and Maitland, vol. i. p. 472.</page><page sequence="15">THE LEGAL POSITION OF THE JEWS. 81 which I have discussed above. The records with which we are now concerned were not before Maitland when he wrote, and if one may say it of so eminent a master, his conclusion is imperilled by the evidence of the Jewish Exchequer which the devoted labours of Mr. Rigg gave to the world too late, unhappily, for their testing and elucida? tion by that illustrious mind. But, further, the champions of the " rightless " theory of the Jewish status are in some respects unfortunate in the consistency of their exposition. In so far as the Jews own property and, to all appearances, are assisted by the King's Courts in the enforcement of their contractual rights, this is to be explained, we are told, by the King's need for money which he could thus most conveniently raise. The proprietary rights of the Jews were, according to this theory, merely his rights; and it would follow that prosperity for them was prosperity for him, for they were his chattels, and what they acquired, they acquired for the King. But then come the Statute and Articles de la Jewerie, which taken together make the most serious inroads into the Jews' right and power of lending money at interest, and from the vigour and precision of their language, make it tolerably clear that they were intended to cope with what was regarded as a serious and growing evil. Strangely enough, these very same authorities hold the Statute de la Jewerie in front of us as yet another example of the miserable plight of the Jews of mediaeval England. I confess I cannot reconcile the two proposi? tions. If the recognition and enforcement of Jewish loans was a mere appendage of royal rights in and over the Jews, then a measure which introduces grave restrictions in the usurious activities of the Jews does not, ex hypothesi, damage them, but the King. While if these measures were intended to cripple them still further in their struggle with society, then it could not, presumably, take from them something which they had never had. To say that the two propositions cannot be reconciled is not, however, to say that both of them are untrue. This Statute undoubtedly strikes a serious blow at Jewish financial operations?I say " Jewish " advisedly, and not " royal." It was after? wards modified, and the prohibition becomes a regulation?a regula? tion which does not take away substantial rights, any more than any of the measures of modern times which prune and regulate the activities now of this, now of that class of persons within the community. Upon VOL. IX. G</page><page sequence="16">82 THE LEGAL POSITION OF THE JEWS. any other view, we should be driven to say that the Moneylenders Act or the Companies Acts are evidence that moneylenders or limited companies possess a special and inferior status because their trans? actions must conform to the requirements of the statutes which govern them. That the Jews of this period had legally enforceable rights in property, both real and personal, is, I suggest, demonstrably true. The half-way theory of Pollock and Maitland, that while in practice the Jew was a de facto owner, in law he was rightless, for the King could at any moment seize with his hand all that the Jew obtained, scarcely seems to make due allowance for the pervasiveness of the King in the highly personalised system of the twelfth and thirteenth centuries. To this very day, the King is the ultimate overlord of every yard of land in England ; but we have yet to learn that the sturdy yeoman of Kensington or Streatham is what one writer on this Jewish ?matter has amiably described as a ?e rightless object, ferae naturae." Every person with the slightest acquaintance with constitutional law or history is well aware that the King can in law do innumerable things which he never does, such as attending Parliament, refusing his assent to a Bill, or sitting in the Court of King's Bench. King Charles I. lost his head for much less. That the Jews paid heavily in tallages, fines, escheats, dues of every kind and at every turn is interesting, but to me wholly uncon? vincing as an argument tending to prove their oppressed and inferior condition. I have already quoted the dictum of Jacobs that he could match every one such payment made by a Jew with a similar one made by a Christian. I dare say he would have succeeded. Until the time of William III. there was no civil list or privy purse. Before the adjustments reached in that reign, the King, and this of course includes the mediaeval King, met the expenditure arising out of external affairs and internal administration out of the revenues he could raise. It was therefore a matter of vital necessity for him to spread his net as wide as possible. There were many ways in which he could and did get revenue from his own subjects. There were escheats and forfeitures, feudal aids (e.g. wardships, marriages, reliefs), judicial fees, the sale of charters, the temporalities of the church, and his right to tallage the tenants on his demesne lands. The mediaeval Englishman was thus faced at every turn with some demand or other. In the face of</page><page sequence="17">THE LEGAL POSITION OF THE JEWS. 83 all this, can it be seriously contended that the position of the Jews, and now I am speaking of matters of taxation, was in any special sense onerous ? From the language of some authorities one would be tempted to suppose that the Jews of England were the sole source of the royal revenue. Why, the history of English constitutional development is the history of the fight for financial control?a fight which raged quite as fiercely in the Middle Ages, when legislation was a matter of contract between King and commoners of which the con? sideration was the voting of supplies, as it did around the case of ship money, and in our own day, around the passage of the Parliament Act. Whether the demands made upon the Jew differed pro? portionately in degree from those made upon the rest of the com? munity is a question of fact demanding, for an adequate answer, a close investigation of records upon which I am unable to embark. That they did not differ in kind can, I think, be shown. It is con? ceivable that our estimate of the legal condition of the Jews in the mediaeval period has suffered from too great a tendency to stress and_ isolate Jewish affairs from the organic body of the contemporary legal history. The Jew was heavily tallaged, he paid a heavy toll of fees and fines, one-third of his property escheated to the King on his death, if he was excommunicated from his own community, the King seized his property as a punishment on him for being so bad a Jew, and if he were converted the King again seized his property as a reward for being so good a Christian as not to be in need of the temporal* things of this world. We read all this, and we are apt to say, these people are persecuted and rightless things, whose only function in the com? munity is to be the passive objects of rapine and extortion, like the traveller in Juvenal, ubi tu pulsas, ego vapulo tantum, where you do all the hitting and I get all the blows. Such a conclusion, however tempting it may seem, is not, I think, warranted by the facts. In relation to the conditions of the twelfth and thirteenth centuries, and having regard to the heavy demands made upon all classes in the community during this period, the theory of Jewish rightlessness, in so far as it is based upon financial exactions, cannot be accepted with? out considerable modification. Another factor must be borne in mind. We are apt to conceive of English legal and constitutional development as a steady and pro? gressive direction, from the earliest times, towards the establishment</page><page sequence="18">84 THE LEGAL POSITION OP THE JEWS. of civil liberties and the " rule of law." The British constitution, as we understand it, dates from the Bill of Rights, and not before ; and to the historian of the growth of civil liberty, all that which lived before Agamemnon is of comparatively slight account. There was Magna Carta, it is true. Nullus liber homo imprisonetur, aut disseisiatur, aut utlagetur. aut exuletur, aut aliquo modo destruatur, nisi per legale iudicium parium suorum vet per legem terrae. I will venture no opinion on the question whether a Jew of, say, 1230, could have relied upon this clause. But then he had his own Magna Carta, given him by Henry L, con? firmed by Richard I. (in the first instance to a chosen few and after? wards made of general application by John). Yet we are still far from the days of Habeas Corpus and Petitions of Right. The fight against the assumption of criminal jurisdiction by the Privy Council has yet to be fought in the fifteenth century, and the dragon called Star Chamber had still to be met and vanquished. So that we shall do well to go carefully when we speak of the Jew existing merely ex gratia of the King, as his chattel or serf. Let us ask ourselves what legal steps could have been taken to enforce his legal remedy by a feudal landholder who said that by the terms of his holding he was not bound to render military service out of the realm, or by a burgess who challenged the lawfulness of a tax. And when these questions have been asked, and, if possible, answered, let us turn to the Plea Rolls of the Jewish Exchequer, with their fair and orderly process of law, their patient inquiries or inquests into questions of fact, their judicial attention to the Jew's defence to a claim for tallage or escheat, and then let us see, how far we are justified in maintaining that the Jews of the period existed only at the arbitrary and uncontrolled caprice of the King. We who unhappily have lived to see the British Consti? tution flung on to the dust-heap under the excuse of the necessity which, we have been told, on good authority, knows no law, and the fruits of the bitter struggle for civil liberty surrendered without a struggle by those who should have been their guardians and trustees, we should have a care before we lightly designate as slaves or chattels or rightless objects the Englishmen of the thirteenth century, Christian,, aye, and Jewish as well. April 29, 1918.</page></plain_text>