13 mai 2014 Séminaire RELMIN
Règles de commerce et statut minoritaire
Paul Brand
Jewish usury and the law in England in the twelfth and thirteenth centuries
NB : les textes et articles distribués ici demeurent la propriété de leur auteur, ils ne peuvent être reproduits ou utilisés sans leur accord préalable.
NB: the papers and articles circulated for this event remain the property of their author. They may not be reproduced or otherwise used without their prior consent.
Contact : [email protected]
Jewish usury and the law in England in the twelfth and thirteenth centuries
Paul Brand
By 1200, and probably for at least a decade prior to then, England’s Jewish community was the only group whose members were permitted by law to lend money ‘usuriously’. Both then and later, they were certainly not the only money lenders who lent money on such terms, particularly if one adopts one of the broader definitions of ‘usury’ that were current among canonists and theologians, that is, one which considered as usury requiring payment of anything in addition to the sum originally lent, whether in the form of a fixed additional profit disguised by requiring repayment of a sum larger than that originally lent, or requiring the debtor to hand over land as a pledge and allowing the creditor to keep income from that land while the pledge lasted (a mortgage), or requiring the payment of per diem expenses for the creditor while the debt remained unpaid. But members of the
Jewish community were, for the first three quarters of the thirteenth century at least, allowed to take usury openly: by making loans which required full repayment of the loan by a certain date and setting in advance a fixed rate (of so many pence in the pound each week) for any part of the loan not repaid by that date by way of interest
(or what was often called ‘usury’ (usura) or, more generally ‘profit’ (lucrum)), payable or receivable in addition to the originally sum lent, the ‘chattel’ (catallum).
And, more than that, the Christian kings of England and their officials not only tolerated a form of lending by Jews that was prohibited to their Christian subjects and which the kings themselves took action to punish when it was undertaken by those same Christian subjects, they were also by 1200 giving their Jewish subjects active assistance in enforcing repayment of those loans with interest.
Acceptance of money lending at interest by members of the Jewish community, or at the very least its toleration, seems to have been one of the
Page 1 of 22
privileges included in a now lost charter to the Jewish community of England and
Normandy issued some time in the reign of Henry II (1154-1189), which is known only from the enrolled copy of a charter confirming (but confining the privileges it contained to a specific Jew, Isaac the son of rabbi Joce, and his children, and their men) issued by Henry’s son and successor, Richard I, at Rouen on 22 March 1190 and from a second (but this time general) charter issued by Richard’s brother and successor, John, on 10 April 1201.1 This mentions in passing two different forms of
Jewish lending. The most important of these, and the one best attested by later evidence, is lending on the security of the debtor’s land or lands. Here the only indirect mention in either charter is the provision that if there is a dispute between a
Jew and a Christian about the lending of money the Jew is to prove the sum lent and the Christian the interest.2 Neither charter specifically mentions the land which is the normal security for such loans but both earlier and later evidence suggests that loans were not in general made without a such security and that a dispute about interest and capital is most likely to have arisen in the context of just such a loan. The charters implicitly indicate royal acceptance of the practice. The other form of lending, generally for significantly smaller sums of money, was that made on the security of movables. There are two clauses in both charters (and in the charter of
Henry II which lies behind them both) which make indirect reference to this practice and again implicitly manifest royal acceptance of it. One allows Jews ‘to accept and
1 Rotuli Cartarum, p. 93.
2 C 52/21, m. 3 [Cartae Antiquae] [printed in Rymer’s Foedera, I, I, p. 51 which is useful for supplying what can no longer be read in the original including the bracketted passage here]: Et si inter Christianum et aliquem predictorum Judeorum vel infancium suorum [fuerit dissencio] de accomodacione alicujus pecunie
Judeus probabit catallum suum et Christianus lucrum (Richard’s charter); C 53/3, mm. 5-4 [Charter Roll]
Page 2 of 22
to buy anything brought to them without being troubled for this other, than things belonging to the church and bloody cloth’.3 ‘Acceptance’ in this context is most likely, I think, to mean acceptance by way of security for a debt (though it might also perhaps mean by way of satisfaction of a debt) and similar restrictions are later found on pawns deposited with Jews as security for loans. The second clause allows
Jews to sell their ‘gages’ freely after it is certain that they have held them for a year and a day.4 ‘Gage’ might be a reference to either kind of security (land or movables) and it may be that at one stage the privilege applied to both kinds of security. 5 But later, as will be seen, this relatively short period of time (a year and a day) during which property could be redeemed was something which can have applied only in the case of gages of movables, and it may be that this was already the case at the time Henry II’s charter was issued.
Royal involvement and implicit approval of Jewish moneylending on the usual terms (including the charging of interest) advanced much further as from 1194.
In that year the men who were administering England in the absence of Richard I in
[printed in Rot. Cart, p. 93; earlier in Prynne, part II, pp. 5-6]: Et si inter Christianum et Judeum fuerit dissencio de accomodacione alicujus pecunie Judeus probabit catallum suum et Christianus lucrum (John’s charter).
3C 52/21, m. 3: Et liceat predictis Judeis omnia que eis aportata fuerunt sine occasione accipere et emere, exceptis illis que de ecclesia sunt et panno [con?]sanguinolento (Richard’s charter); C 53/3, mm. 5-4: Et liceat
Judeis omnia que eis apportata fuerunt sine occasione accipere et emere, exceptis illis que de ecclesia sunt et panno sanguinolento (John’s charter).
4C 52/21, m. 3: Et liceat predictis Judeis quiete vendere vadia sua postquam certum erit illos ipsa per unum annum integrum et unum diem tenuisse (Richard’s charter); C 53/3, mm. 5-4: Et liceat Judeo quiete vendere vadium suum postquam certum erit eum illud unum annum integrum et unum diem tenuisse (John’s charter).
5For Richardson’s suggestion that during the reign of Henry II Jewish moneylenders might ultimately exercise a right to sell to third parties land which had been gaged to them see HG Richardson, The English Jewry
Page 3 of 22
France (after his brief return from captivity in Germany on his way home from the
Crusade) created a system of officially sponsored(and mandated) chirographs for recording Jewish loans and chirograph chests for keeping official copies of loan agreements.6 This envisaged that in future all Jewish loans (though from the first the system seems to have applied only to loans made on the security of the debtor’s lands) would be recorded in bipartite chirographs, of which the Jewish creditor would keep one part (sealed by the debtor) and a second (identical but unsealed) part or copy would be kept in an official chirograph chest. Chirograph chests were to be established in six or seven places each of them under the control of two Christians
(soon to be known as chirographers), two Jews (also to be known as chirographers) and a clerk appointed by William de St Mere Eglise and William de Chimilli
(perhaps early Justices of the Jews) for each chirograph chest. There were to be two official scribes (scriptores) to write the chirographs in each place. The clerk of these two men was also to make a roll of transcripts of the chirographs and to alter it with any alteration made to the chirographs themselves. A triplicate record of moneys received by Jewish creditors in payment of their debts was also to be compiled: one roll to be kept by the Christian chirographers, one by the Jewish chirographers and one by the keeper of the roll recording the terms of chirographs. This scheme in essence survived down to the time of the Expulsion of the Jewish community in
1290, but it was subject to a number of incremental changes. The most important of these were those of 1233 which turned bipartite into tripartite chirograph, of which
under Angevin Kings (London, 1960), p. 86, but Richardson does not provide any conclusive evidence of this happening.
6Chronica Rogeri de Hovedene, ed. W. Stubbs (Rolls Series, 1868-71), iii, 266-7(most conveniently accessible in Stubbs’ Select Charters, at pp. 256-7).
Page 4 of 22
the third part was to go to the Christian borrowing the money,7 and of 1239 which ensured that it was the (unsealed) foot of the chirograph (pes chirographi), hitherto the part deposited in the chest, that went to the creditor, and the third part of the chirograph sealed by the debtor, which had hitherto gone to the creditor, which went instead to the chirograph chest.8 There was also a considerable expansion in the number of towns where there were chirograph chests, so that there were seventeen chests by 1220. Still others came into operation later, though sometimes only for limited periods of time.9 Changes were also made in the overall administrative scheme. Later evidence makes no mention of any clerk appointed (whether by the
Justices of the Jews or by others) to share control of the chest and its contents with the locally based chirographers or to keep a roll of transcripts of chirographs. There are mentions even in the reign of Edward I of memoranda recording the name of
Christian debtor and Jewish creditor, the amount of money owed, the day and year of payment and the name of the witnesses and date of the transaction, but these are described in the Christian chirographers’ oath as being one of their responsibilities
(though perhaps one shared with the Jewish chirographers).10 Only the chirographers had keys to the chest, though each of the Jewish or Christian chirographers seems to have had one of his own. Later evidence, though not conclusive, suggests that there was only a single clerk writing chirographs at all the chirograph chests other than
7Richardson, The English Jewry under Angevin Kings, p. 294.
8Liber de Antiquis Legibus, pp. 237-8; BL MS. Additional 62534, ff. 257v-258r. Both texts take the form of legislation apparently specifically for London but this change seems to have been a general one.
9Joe Hillaby, ‘A magnate among the marchers: Hamo of Hereford, his family and clients, 1218-53', Jewish
Historical Studies, xxxxi (1988-90), 23-82 at 23-4.
10BL MS. Additional 62534, f. 256r.
Page 5 of 22
the most busy, those at London and York.11 The system had advantages for Jewish creditors, their Christian debtors and for the Crown. For the creditor there was always a back-up copy, in official custody, of the document recording his loan, so that even if he lost his copy or had it stolen from him or it was destroyed he still had access to written proof of its terms. For the debtor there was a safeguard against any attempt by the creditor to alter the terms of the agreement after it was made. For the
Crown there was a full record of the loans made by the Jewish community which came in useful in assessing and collecting Jewish tallage (taxation) and collecting the king’s post-mortem entitlement to a third of Jewish estates or the whole of the debts of individual Jews who had forfeited their possessions.12
A further advantage of this system from the governmental point of view was that it allowed a fairly effective control over the terms under which loans were made. A maximum rate of interest of two pence in the pound (240 pence) per week is first mentioned in the 1233 legislation.13 This maximum rate was probably not something new in 1233 for legislation of 1239 describes the same maximum rate of interest as something set ‘by an assize granted communiter to the Jews by us and our ancestors’.14 There is, however, other evidence to suggest that for a period in Henry
11For the latter see EJ, ii, p. 181 and EJ., i, p. 303. In 1275, an order was given for two clerks to be chosen at Devizes, but only one was in fact chosen: EJ, iii, pp. 42-3.
12 King John may even have attempted to enforce payment of any usury accumulated on such loans. In part of clause 10 of Magna Carta he had to promise that if a Jewish debt came in to his hands he would only take the principal (catallum) contained in the ‘charter’. This disappeared from later reissues of Magna Carta.
13Richardson, English Jewry under Angevin Kings, p. 294: Nullus judeus aliquid det mutuo per penam set de libra capiat duos denarios per ebdomadam de lucro et non plus, ita quod nichil ponatur in sortem nisi primum mutuum.
14Liber de Antiquis Legibus, pp. 237-8: Et prohibemus ne aliquis judeus aliter pecuniam suam mutuo det quam per assisam communiter judeis a nobis et antecessoribus nostris concessum est, scilicet ne quis ultra sortem
Page 6 of 22
III’s reign the maximum rate had been higher than this (at three pence in the pound per week) and that at some unknown date early in the reign it was reduced to the maximum mentioned in 1233 and 1239.15 The 1233 legislation also specifically forbids any attempt to evade this maximum by inflating the amount recorded as having been lent and therefore repayable.16 The earlier existence of such a rule can again be inferred, in this instance from a case enrolled in the Exchequer of the Jews in 1220 alleging breach of ‘the assize’ (not further specified) where only six and a half marks had been lent but the debt was recorded in the chirograph as being ten and a half marks and a seam of corn.17 Breach of the rule is also mentioned later in a case of
1253.18 The 1233 legislation also prohibited a different form of disguised usury: that of lending on a penalty, with a larger sum payable if the debt was not repaid on time.19
The king’s involvement in this system of registration of debts (with interest) owed to Jewish money-lenders went further than this. Although nothing is said about this in the regulations creating the chirograph chest system it seems likely,
de libra per ebdomadam plus quam duos denarios capere presumat. It also appears in much the same words in
BL MS. Additional 62534, ff. 257v-258r.
15See the undated mandate preserved in the archives of the Nottingham chirograph chest and now among the various chirograph documents preserved at Westminster Abbey, where it is Muniment 6719: ’H. dei gracia rex Anglie etc. vicecomiti Noting’ et cyrographariis Christianis et Judeis et clericis cyrographariis salutem.
Prohibemus vobis quod nullum cyrographum vel tallia permittatis fieri vel in archa cyrographariorum reponi in quibus contineatur plus quam .ij denarii de libra in septimana quia nolumus quod assisa prius habita de .iij. denariis de libra ulterius teneatur. e
16Above, note 13.
17EJ, I, pp. 27-8, 43-4.
18EJ, I, 127-8.
19Above, note 13.
Page 7 of 22
though perhaps no longer provable, that from the beginning it was the king and his officials who assisted the creditor in recovering his debt and interest. When we can catch glimpses of the system what seems to have happened when a debt recorded in a chirograph became due, or when the creditor at some later date wanted to enforce payment, was that he obtained a writ from the Exchequer of the Jews to the local sheriff to instruct the debtor to repay the debt (plus interest) and, if the debtor failed to do so, instructing the sheriff to place the creditor in possession of chattels of the debtor to the value of the sum owed. Only if these did not suffice to pay the debt was the sheriff instructed to place the creditor in possession of the debtor's lands as well, to hold until he had received what was owed out of the profits of the land.20
Such a writ would be issued without the debtor being summoned to appear at the
Jewish Exchequer and probably on production of the creditor's part of the chirograph and the writ was not, it seems, returnable into the Exchequer of the Jews either. Both the issuing of the writ and the action undertaken under it would normally go unrecorded there. Although the writ issued on behalf of Jewish creditors (or those to whom they assigned their debts) for the enforcement of debts did not mention it, there were certain additional limits on what the creditor could do, when he took possession. The earliest case alleging that a debtor and his family had been wrongfully ejected from their houses ‘against the assize and statutes of the
Jewry’ in the course of the levying a Jewish debt brought in the Exchequer of the
Jews was in 1268 and the defendant was the sheriff who had placed the creditor in
20 The rule that the sheriff or local bailiff needed a royal warrant to place a creditor in seisin of the debtor's lands is apparent in the earliest rolls: EJ, i, pp. 41, 48. For evidence of its observance in the post-1265 period see e.g. EJ, i, p.185; EJ, ii, pp. 255-6. The form of the writ which required primarily distraint on chattels, and seizure of lands only if the chattels did not suffice for the debt, can be deduced from EJ, ii, pp. 255-6, and from the post-1275 version of the same writ (for which see below).
Page 8 of 22
possession, not the creditor himself.21 Additionally the creditor in possession of his
‘gage’ was not able to do anything that led to a deterioration in the longer term capital value of the land concerned by committing what the common law knew as
‘waste’ by demolishing buildings or cutting down trees or causing unfree tenants to leave their holdings.22 A similar writ was also apparently available against those who held lands which had belonged to the debtor when he had acknowledged the debt by his grant,23 and also against the guardian of the debtor’s heir.24
One of the privileges included in Henry II’s charter to the Jews of England and Normandy and confirmed by Richard I in his 1190 charter (but only for specific
Jews) related to the enforcement of the repayment of a debt when the original debtor died. It promised that the Jewish creditor was not to be disturbed ‘in relation to his debt’ by the minority of the debtor’s heir, unless the land of the heir was in the king’s hands (by way of wardship).25 Presumably this meant that the creditor who was in possession of land pledged to him as a surety for payment of the debt was to
21EJ, i, pp. 160-1.
22EJ, i, pp. 178, 275; EJ, ii, pp. 26, 31-2.
23The form of the writ is partially transcribed in an enrolment of an assize of novel disseisin heard in the
1268 Wiltshire eyre (JUST 1/998A, m. 2): 'Henricus dei gracia etc. vicecomiti Wylt' salutem. Precipe Roberto de
Waude tenenti terras que fuerunt Willelmi de Rokeseye in Edemeston' quod sine dilacione reddat Deulecres' de
Wylton' judeo vel ejus nuncio decem libras quas ei debet occasione predictarum terrarum quas tenet et que sunt vadium suum pro predicto debito secundum convencionem factam inter predictum Willelmum et ipsum
Deulecres' per cyrographum decem librarum unde altera pars est in arca cyrographariorum Wylton' etc. Et nisi fecerit et dictus judeus ostenderit tibi cyrographum quod inde habet tunc sine dilacione seisias dictum judeum vel ejus nuncium de vadio in dicto cyrographo nominato de quo idem Robertus nunc habet seisinam ad valenciam dicti debiti decem librarum et ipsum judeum vel ejus nuncium in seisina illa custodias et manuteneas...'
24Below, note 31.
25C 52/21, m. 3: Et si debitor Christianus obierit qui pecuniam Judeo debeat et debitor heredem [habeat, pro puericia heredis] Judeus de debito suo non disturbetur, nisi terra heredis in manu nostra fuerit.
Page 9 of 22
retain it and thereby override the claims of the heir’s lord to wardship of the same land, unless that lord was the king. The same clause does not appear in John’s confirmation of his father’s charter. The subject (and the conflicting claims of lords, debtors and creditors) was evidently a difficult one. In 1215 among the demands made of king John by the barons and then conceded in Magna Carta were two overlapping clauses relating to it.26 Clause 10 of Magna Carta promised that if a debtor owing money to the Jews died before payment and left a minor as his heir the debt was not to incur interest (debitum non usuret) as long as the heir was under age, of whomsoever he held. Clause 11 added that the widow of a debtor who owed money to the Jews was to get her dower from her husband’s lands (which means that they were not to be treated as a ‘gage’ for the payment) and was not to be liable for any part of the debt; and that the underage children of the deceased debtor were to be provided with necessities suitable to their father’s holding, and the debt paid out of the remainder, but reserving the services owed to lords. This suggests that the
Jewish creditor was still to be allowed to recover part of his debt despite the minority of the heir but he was not to get all of it. These clauses disappeared from the later revised reissues (of 1216, 1217 and 1225). A similar concession in regard to usury not running against heirs under age who were in wardship does, however, appear as something apparently recently conceded by king Henry III in a mandate to the justices of the Jews enrolled on the Close Rolls and dated at Westminster on 6
December 1235 in which the king mandated the observance of this concession in respect of William of Pirrow, who was under age and in the wardship of the prior of
Thetford, in respect of the debt of his grandfather(also William of Pirrow) to Isaac of Norwich and both in respect of his own period of wardship and the period when
26For these original demands see Articles of the Barons, clauses 34 and 35.
Page 10 of 22
his father William had also been in wardship.27 The concession was restated as c. 5 of the Provisions of Merton which were issued on 30 January 1236 but had been agreed at Merton on 23 January. Thuis also had a rider making it plain that there was to be no respite because of the minority in the enforcement of the payment of the principal and the interest accumulated up to the time of the death of the ancestor (Et propter hoc non remaneat solucio debiti principalis cum usuris ante mortem antecessoris).28 One further mandate to the sheriff of Yorkshire enrolled on the Close Rolls of 17 January
1238 seems to extend the royal concession made in 1235-6 still further. It recites how
Richard de Waterville had shown the king that he had recently recovered by a judgment of the Common Bench at Westminster against Roger de Coleville the wardship of land at Dalton which had belonged to Odinell d’Aubigny until Odinell’s heir came of age but that the Jew Aaron of York, whose gage (vadium) the land was said to be, had subsequently by another king’s writ recovered seisin of it as his vadium. The writ then recited both the king’s concession that (rex generaliter concessit in regno suo) that while heirs were under age usury should not run on their lands which were the gages of Jews, but also a more general rule or concession that such gaging should not deprive lords of the wardship of lands held of them by knight service (nec hujusmodi invadiaciones auferre debent dominis feodorum custodiam terrarum que de eis tenentur per servicium militare) and ordered the sheriff to put Richard back in seisin of the land.29 That this did not necessarily, however, mean that the guardian was not subject to pressure to pay the debt (and accumulated interest) during the wardship is suggested by a further Close Roll mandate of the autumn of 1241 addressed to the sheriff of Norfolk. Hugh de Hoyville had complained to the king
27Close Rolls, 1234-7, p. 214.
28Close Rolls, 1234-7, p. 338.
29Close Rolls, 1237-42, p. 119 (and cf. 472-3).
Page 11 of 22
that he was only one of several guardians holding land in wardship which had belonged to Peter of Melton and that all these lands had been gaged to various unnamed Jews for various debts but that the sheriff had only distrained Peter for the debts and not those who held much more extensive lands and the king accordingly order an enquiry as to the quantities of land held by each (and thus how much should contribute to payment).30 There is also the uncertain evidence of a writ copied into a private register of writs of c. 1250 which seems to derive from a writ actually issued but which has in the course of copying lost its identifying names and dates.
This too starts by reciting the king’s concession that usuries were not to run while an heir was under age, but goes on to order the guardian of such an heir to pay two
Jews or their messengers (nunciis, the normal term for agents in this context) the debt which his father owed them as recorded in an agreement made in a chirograph of which the other part was in the Stamford chirograph chest and to provide that if the
Jews or their agents showed the sheriff the chirograph he was to put them in seisin of the gage named in the chirograph to the value of the debt, currently held by the guardian and to maintain them in seisin of it.31 The type of money lending about which least is known, but which may have been the most common in
30Close Rolls, 1237-42, p. 363.
31BL MS. Additional 35179, f. 81v: ‘Rex vicecomiti salutem. Quia concessimus quod heredes illorum qui debita debent judeis quieti sint de usuris quamdium fuerint infra etatem, precipe W. custodi terre et heredis R. de N. quod sine dilacione reddat A e B judeis vel eorum nunciis debitum quod predictus R eis debuit perconvencionem inter eos factam per cyrographum sub nomine suo unde altera pars cyrographi est in archa apud Stanford ut dicit. Et nisi fecerit et dicti judei vel eorum nuncii ostendant tibi cyrographum suum quod inde habent, tunc sine dilacione facias eos vel eorum nuncios de vadio in cyrographo illo nominato, de quo quidem vadio idem W. nunc habet saysinam occasione dicte custodie, ad valenciam dicti debiti et ipsos judeos vel eorum nuncios in saysina sua custodias et manuteneas, non inferens aut inferri permittens molestiam aut gravamen quia secundum assisam judeismi non debent placitare de cyrographis suis. Ne amplius inde clamorem audiamus. Teste etc.
Page 12 of 22
practice, was that of lending on the security of pawned goods or valuables. As we have already seen, there seems to have been some references to this in the charters of privileges issued by Henry II (but now lost) and by his sons Richard I in 1190 and
John in 1201.32 Later legislation confirmed and extended the range of articles that could not be accepted in pawn: 1233 legislation stated that no Jew was in future to give loans on (the security) of ecclesiastical vessels or cloth that was bloody or wet or quasi vi confunctos,33 and an order of 1246 apparently sent only to the sheriff of a single county (Northamptonshire) but perhaps of more general application, extended the range of ecclesiastical property that Jews were forbidden to take in pledge to bibles (libros), chalices and other ecclesiastical equipment (alia ornamenta ecclesiastica) on threat of forfeiture of chattels and unspecified corporal punishment.34
However, the fourth of the ’articles of the Jewry’ of 1275x1279, perhaps intended for out of term local sessions held by the justices of the Jews, asked only about Jews
‘receiving stolen articles, cloth with blood or ornaments of Holy Church’.35 Loans of this kind might be usurious in two different ways. Interest seems to have been payable on a weekly basis on the sum borrowed and again there seems to have been maximum rate, perhaps the same as that for the interest due on the security of land.
All that is known for sure, though, from a complaint made in 1220 by Robert fitzHenry, the father of Walkelin the clerk, is that a rate of ten pence in the pound a week on a loan of twenty shillings on the surety of gages was considered excessive,
32Above, p. 000.
33Richardson, English Jewry under Angevin Kings, p. 294: Nullus judeus de cetero aliquid mutuum det super vasa ecclesiastica aut super pannos sanguinolentes aut madidos aut quasi vi confunctos.
34Close Rolls, 1242-7, p. 476.
35Paul Brand, ‘Jews and the Law in England, 1275-90', EHR 115 (2000), 1138-58 at 1144-7.
Page 13 of 22
‘unjust and contrary to the assize’.36 What may be the same rate is mentioned in further litigation of 1267 brought by John Renger against Samuel le Blund though here the loan is of 50s. The interest may, howver, be the total interest paid rather than the sum paid for each pound borrowed (which would reduce the interest to four pence in the pound each week).37 The other potentially profitable, indeed usurious, aspect of such loans was that the chattel or chattels pawned were forfeited after a specific period of time and were themselves generally worth considerably more than the sum lent. If the interest rate was high and none of it had been paid then much of the difference might, of course, be accounted for by unpaid accumulated interest. As we have seen, the charter of Henry II seems to have envisaged gages being forfeited if unredeemed within a year,38 but that particular time period seems difficult, if not impossible, to confirm from other later sources.
That there was such a period is suggested by a 1278 case in the Exchequer of the
Jews brought by one of the Oxford Carmelites for three theological works pledged to
Margarina of Oxford, which after an initial denial she agreed she had sold ‘by lapse of time’.39
*
' The position established by the charters of privileges of Henry II, Richard and
John and the creation of the chirograph chests in 1194 was evidently one of mutual benefit for both the Jewish community and the English Crown and it survived for almost eight decades without major modification. In 1275, however, a new king of
England, Edward I, who had been on Crusade when his father died in 1272 and only
36E 9/1, m. 8 [AALT image 0018]: calendared in EJ, I, p. 34.
37E 9/7, m. 1: calendared in E.J., I, 139-140.
38Above, p. 00.
39EJ, v, no. 401 (and Select Pleas etc., pp. 103-4).
Page 14 of 22
returned to England in 1274, began his reign with some major pieces of legislation.
Among them was a Statute of Jewry enacted at the Michaelmas parliament. This made a significant reduction in the existing privileges of the Jewish community.40
Among other things it prohibited all future Jewish loans, whether secured on land or on movables, on which usury was charged. Not only would the King no longer give any assistance to individual Jewish creditors in recovering either the interest or the principal on such loans, but any such lenders were in future to be punishable 'at the king's will' for making them (this was probably intended to authorise only fines and brief imprisonment, not capital or even corporal punishment). The statute did not cancel existing loans but it did radically alter their terms. No further interest was to accumulate on existing loans as from 13 October 1275 (St Edward’s day), although the interest accumulated on them up to that date was still to be repayable together with the principal. The statute also made important changes in the procedures available for enforcing the repayment of Jewish loans secured on lands. Under existing procedures all the chattels of a debtor had been liable to seizure (and sale by the creditor) for repayment of a debt and, if these did not suffice, the whole of the debtor's landed property (except for his house) had been handed over to the creditor to hold until the debt (plus interest) had been paid from its income.41 The statute allowed the debtor in future to keep half of his chattels and also half of his
40For the text see Statutes of the Realm, i. 221-221a.
41This is difficult to reconcile withe evidence from an assize of novel disseisin in the 1271 Kent eyre in which a debtor claimed that it was contrary to the lex judeismi not just for a creditor (here the Christian assign of a
Jew) to put him out of his house but also for him to cultivate or work the land concerned: his right was merely to receive the chattels found there (presumably including the crop): 'cum non liceat alicui judeo occasione pignoris aliquem dehospitare vel terram quam habeant nomine pignoris excolere vel manuoperari immo tantummodo catalla in eisdem tenementis inventa percipere..': JUST 1/365, m. 17d. But this may only refer to an initial stage of the process of putting the creditor in possession.
Page 15 of 22
lands: thus the creditor would have in effect to wait twice a long to recover his debt in full. The statute also required that before any lands were handed over to the creditor these should be valued, so that it could be known in advance when the debt would be paid off. Changes were also made in the procedures applicable where the original debtor was no longer in possession of the lands he had held when he had contracted the debt, either because he had died or because he had given or sold all of his lands to third parties. Hitherto, as has been seen, it had been possible for the creditor simply to obtain an executive order addressed to the local sheriff to be put in possession of the lands of the debtor's heir or the grantees of the debtor's lands, provided he had the chirograph proving the debt. Now he would have to prove the debt in court (before the justices of the Jews) before such measures were authorised.
For loans made on the security of movables different rules were to apply. The
Christian debtors concerned were to be given till Easter 1276 to redeem their pledges and after that they were to be forfeit to the Jewish creditor.The reason given for these changes was, so the king said, the many evils and disinheritances of the prodes houmes of his land to which usury had led and the many evils which had followed,142 although he conceded that he and his ancestors had received great profit from the
Jewish community and its activities in the past.43 What he was now doing was he said
‘for the honour of God’ and for the common profit of the people’.44
Lending money at interest had probably been the major, if certainly not the only, source of income for members of the Jewish community prior to 1275. This was recognised in other clauses of the statute which envisaged a different economic role
42Pur ceo ke le rey ad veu ke mouz de maus e deseritizens des prodes homes de sa terre sunt avenu par les usures des Jeus e unt fet ca en arere, e ke mult de pecchez en sunt suiz
43ja seit ceo ke lu ou ces auncestres eieint eu grant pru de la gyuerie tot tens ca en arrere.
44ne pur kaunt en le honur de Deu e pur le commun pru del people ...
Page 16 of 22
for them in future, which would have made Jews much less distinct (in this respect at least) from members of the majority community. It envisaged (and apparently wished to encourage) Jews with capital turning to trade and specifically authorised the contacts with Christians that Jews would need for buying and selling.45 At the same time, however, the king made it impossible for Jews to be accepted as part of mercantile communities in towns since it prohibited them from being in ‘scot and lot’ or paying tallage with the citizens or inhabitants of towns,46 which would have been essential prerequisites to their acceptance as merchants. It also seems to have envisaged that those Jews who were without the capital required for trade would need to take up physical labour.47 For those Jews without enough capital and unable to live from their labour specific authorisation was given to take land on lease, but this concession came hedged around with provisos. It was not to allow the taking of homages and fealties or any kind of obedience from Christians or to include the advowson of churches; the term of the lease was only to be for ten years or less; and the concession itself was only to last for fifteen years (to 1290).48
The 1275 statute was an attempt at radical social engineering. It attempted to turn Jewish owners of capital from money lenders into merchants not just by depriving them as money lenders of the royal assistance they had hitherto enjoyed in
45e le rey lor graunte kil vivent de marchaundise leaus ... e kil communent ove les Crestienz pur leaument marchaunder en vendaunte en achataunt.
46E ne velt pas le reys par encheson de lor marchandise kil seient lote ne en escot ne en taillages o ceus des citez ou des burgs ou il meinent ...
47e le rey lor graunte kil vivent .. par lor labur
48Derechef le rey lor graunte .. kil pussent prendre e achater formed ou terre a terme de dyz ans ou a meins saun prendre homages ne feutez ne tele manere de obeissaunce de Crestiens e saunz aver avouweson de eglise e pur gainer ne le secle lor vivre sil ne sevent marchaunder ou il ne pount laborer. E ceo pur prendre a fereme ne ur dora for quinz auns de cete hure en avaunt.
Page 17 of 22
enforcing repayment of their loans but also by making the lending of money for profit itself illegal. Scholars have generally doubted whether this attempt was successful and have held that it was its very lack of success that explains (either in part or in whole) the Expulsion of 1290. Robin Mundill has argued that the scholarly consensus that the post-1275 contracts for the delivery of quantities of corn and wool to individual Jews were no more than a disguised form of money-lending is wrong and that there was a real shift in the activities of at least some members of the Jewish community into providing advance credit to producers of wool and corn against the future delivery of quantities of those commodities.49 But as the late Vivian Lipman argued, these agreements would look much more convincing as advance purchase contracts if the money equivalents stated for the produce fluctuated more over time and if the produce delivery times were at all related to the production cycle, close to sheepshearing or harvest time.50 Mundill himself admits another flaw in his argument for there is no evidence to show individual Jews dealing in considerable quantities of corn or wool either by selling or by exporting them in the years after
1275. If Jews really had become major commodity brokers in this period some evidence of their activity would surely have survived and would by now have been noticed by scholars. It also seems doubtful whether even those contracts which really did genuinely envisage the future delivery of commodities would not also have been regarded as ‘usurious’ under contemporary canon law, since the form
49R.R. Mundill: 'Anglo-Jewry under Edward I: credit agents and their clients', Jewish Historical Studies vol. xxxi (1988-90), pp. 1-21.
50Vivian D. Lipman, The Jews of Medieval Norwich (Jewish Historical Society of England, 1967), pp. 163-
168. For similar views see P. Elman, 'Jewish trade in thirteenth century England', Historia Judaica, i (1939), 104; P.
Elman, 'The economic causes of the Expulsion of the Jews in 1290' Econ. HR vii (1938), 148; Lipman, 'The
Anatomy of Medieval Anglo-Jewry', TJHSE xxi (1968), 72-73.
Page 18 of 22
they took seems designed to ensure a profit for the Jew who was providing the producer with credit.
There is also the evidence of an undated specimen writ found in three different pre-1290 registers of writ. It orders the Justices of the Jews to take action on the complaint of a named Christian alleging that a named Jewish creditor is demanding repayment of a debt of two sacks of wool worth twenty pounds and distraining the debtor for this despite the fact that the original loan had been only of a much smaller sum.51 The writ specially draws their attention to the 1275 statute and the fact that this demand is in breach of the statute and orders them to see that justice is done ‘in accordance with the statute and as by right and according to the law and custom of the said Jewry is to be done’.52 The people named in the writ
(Thomas of London and Haketin Polet) are real people and the writ seems to be a genuine one. Here we can see how the advanced purchase contract might function as a disguised money loan that would ensure a profit for the lender.
That there was a general perception by the mid-1280s (in government circles at least) that the 1275 statute had not in fact been successful in stopping 'usurious'
Jewish money-lending. This took the form of an unfinished draft of a statute which was copied, probably by mistake, around 1300 into a mainly legal MS. now in the
British Library, BL MS. Additional 32085 (at ff. 120r-121r).53 The draft reads like an official one and there is other evidence of official drafts of legislation being copied by the owners of private MSS. The draft is not dated but it probably belongs to the
51Only twenty shillings according to two MSS., but twenty marks according to a third.
52BL MS. Harley 748, ff. 30r-v; Library of Congress MS. 131, ff. 27r-v; Philadelphia Free Library MS. LC
14.16, f. 174r.
53It was first printed by Charles Gross in Papers of the Anglo-Jewish Exhibition at pp. 219-224. It was printed again by Rigg in Select Pleas, Starrs etc., pp. liv-lx.
Page 19 of 22
period 1284x1286. It is the preamble to this draft statute which provides this evidence. It suggests that 'usury' had indeed continued under the guise of what had appeared to be trading contracts ('under colour of trade and good contracts and agreements which they have recently made with Christians by bonds and various instruments...') under which the Christian debtor promised in effect to repay a sum which was double, triple or quadruple what he had received. Indeed not only was it being perceived by the mid-1280s that the 1275 statute had failed in its main aim but this draft suggests that by then serious consideration was being given to authorising the resumption of open Jewish money-lending at interest, though subject to various additional restrictions. There was to be a fixed maximum annual rate of interest as before 1275. This was to be either eight shillings and eight pence in the pound each year (the same as the pre-1275 maximum) or at the lower rate of six shillings and eight pence a year. Interest was, no longer to be allowed to run indefinitely. It was to accumulate only during the first three or first four years after the making of the loan.
All loans secured on land were again to be recorded in a tripartite chirograph and the sealed part placed in one of chirograph chests; but there was now to be a single uniform formula used. New safeguards were also to be provided to ensure that
Jewish lenders did not act as ‘front men’ for others or assign their debts to other
Jewish creditors. The draft legislation also contained provisions authorising the resumption of lending on the security of pawned movables. All such loans for sums of twenty shillings or more were to be recorded on a roll kept by one of the clerks attached to the local chirograph chest and he was only to act in the presence of one of the chirographers. Another clause would also have changed the older rule which had been part of the privileges of the Jewish community which allowed a Jew who was sued for the return of a pledge allegedly pawned to him to deny receiving the object and prove his denial by an oath on his bible or scrolls and substituted jury
Page 20 of 22
trial (by a mixed jury of Christians and Jews) in its place. If this draft legislation comes, as it seems to, from the period 1284x1286 this would place it during the period after the enactment of the statute of Acton Burnel of 1283 and possibly after the enactment of the statute of Merchants of 1285. It thus belongs to a period when the king was offering Christian lenders the facility of having their loans officially registered and payment enforced by a process (imprisonment of the debtor; seizure and sale of all of his movables; delivery to the creditor of all of his lands until the debt was paid off) which was considerably harsher than anything available even prior to 1275 for enforcing the repayment of Jewish loans. Under these proposals
Jewish lenders would have enjoyed a position that was a good deal less relatively privileged than had been the case earlier, now that Christian moneylenders could also have their debts registered and could obtain royal assistance in securing their repayment. Only in their ability to openly charge interest would they have enjoyed any real advantage over their Christian competitors but they would have been relatively disadvantaged compared with them in the sanctions available to secure repayment of their loans.
Mundill cannot conceivably be right in believing with some older scholars that our text represents legislation actually enacted during the 1280s.54 The text contains a number of mutually incompatible alternative provisions which could not have survived in a final draft and the final clause of the text is a no more than a note about the subject matter to be covered by the next clause in the text which was not even translated into a rough draft. Nor is it at all likely that our text is the draft of something later enacted in a more finished form. The king’s writ of November 1290 sent to the Treasurer and Barons of the Exchequer justifying the Expulsion said that
54Mundill, art. cit., pp. 3-4, 6.
Page 21 of 22
despite the 1275 legislation the Jewish community had not turned to living by trade or by their own labour but had continued with money-lending, merely changing the form of the 'usury' concerned to curialitas (a favour).55 This clearly presupposes that there had never been any official relaxation of the 1275 prohibition of usury. Nor are there hints in any of our other sources of any lost Jewish legislation of the mid-1280s allowing such a relaxation.
At the end of the twelfth century the lending of money at interest by members of
England’s Jewish community had been something that was not simply tolerated by the kings of England but also something positively facilitated by them and was evidently something from which both individual Jews and English kings derived benefit. All this changed in the last quarter of the thirteenth century when Edward I by legislation prohibited such lending and withdrew the assistance Jewish creditors had hithero received in enforcing such loans.
The 1275 Statute of Jewry appeared to envisage a transformation in the role Jews would play in the economy but did almost nothing to facilitate it and it is hardly surprising that Jews continued to lend money at interest but attempted to disguise that fact. That they had failed to make any change was then one, but only one, of the reasons given in justification of the
Expulsion of the entire Jewish community from England in 1290.
55Rigg, Select Pleas, pp. xl-xli.
Page 22 of 22