Extract from: ShetarArticle
The Shetar’s Effect on English Law – A Law of
the Jews Becomes the Law of the Land – Judith A. Shapiro
The rational study of law is still to a large extent the study of history. Holmes, The Path of the Law. The legal system may fairly be seen as a composite of discrete elements from disparate sources. After the conquest of 1066, the Normans imposed on the English and efficiently organized social system that crowded out many Anglo-Saxon traditions. The Jews, whom the Normans brought to England, in their turn contributed to the changing English society. The Jews brought a refined system of commercial law: their own form of commerce and a system of rules to facilitate and govern it. These rules made their way into the developing structure of English law.
Several elements of historical Jewish legal practice have been integrated into the English legal system. Notable among these is the written credit agreement-shetar, or starr, as it appears in English documents. The basis of the shetar, or “Jewish Gage,” was a lien on all property (including realty) that has been traced as a source of the modern mortgage. Under Jewish law, the shetar permitted a creditor to proceed against all the goods and land of the defaulting debtor. Both “movable and immovable” property were subject to distraint.
In contrast, the obligation of knight service under Anglo-Norman law barred a land transfer that would have imposed a new tenant (and therefore a different knight owing service) upon the lord. The dominance of personal feudal loyalties equally forbade the attachment of land in satisfaction of a debt; only the debtor’s chattels could be seized. These rules kept feudal obligations intact, assuring that the lord would continue to be served by his own knights. When incorporated into English practice, the notion from Jewish law that debts could be recovered against a loan secured by “all property, movable and immovable” was a weapon of socio-economic change that tore the fabric of feudal society and established the power of liquid wealth in place of land holding.”
The Crusades of the twelfth century opened an era of change in feudal England. To obtain funds from Jews, nobles offered their land as collateral. Although the Jews, as aliens, could not hold land in fee simple, they could take security interests of substantial money value. That Jews were permitted to hold security interests in land they did not occupy expanded interests in land beyond the traditional tenancies. The separation of possessory interest from interest in fee contributed to the decline of the rigid feudal land tenure structure. At the same time , the strength of the feudal system’s inherent resistance to this widespread innovation abated . By 1250, scutage had completely replaced feudal services: tenant obligations had been reduced to money payments. And as the identity of the principals in the landlord-tenant relationship became less critical, a change in the feudal rules restricting alienability of interests in land became possible. One catalyst for this change may have been the litigation surrounding debt obligations to Jews secured by debtors’ property. The Jews in Norman England had a specified legal status. They alone could lend money at interest. They were owned by the King, and their property was his property. The King suffered their presence only so long as they served his interests primarily as a source of liquid capital.
Because moneylending by Christians was infrequent, English law had not established its own forms of security. The Jews operated within the frame-work of their own legal practice, which was based on Talmudic law developed over centuries of study. But the peculiar status of the Jews as the Crown’s de facto investment bankers encouraged the King to direct his courts to enforce the credit agreements made by Jews under their alien practice. This nourished the growth of Jewish law in a way that blurred the absolutes of feudal land tenure. Previously inalienable rights in land gave way to economic necessities, and the English ultimately adopted the Jewish practices.
This note examines a moment of contact between two peoples, when necessity, proximity, and social upheaval prompted a cultural exchange between the Jewish merchants and moneylenders and those they served. The note describes the effect on English law brought about by the King’s Jews as they executed and registered debt instruments, assigned and enforced the underlying obligations, and generally survived by moneylending, the only profitable occupation open to them. It first reviews the Jewish credit agreement and its function in Anglo-Norman feudal society. It then suggests a rational explanation for a development in medieval English law heretofore perceived only as an anomaly: that the early writs of debt, which were for recovery of money, used terminology more appropriate to an action for recovery of land. This confusion now appears to be merely the linguistic expression of an innovation in the law due to the development of an action to recover alternative relief: repayment of money lent or award of collateralized land.
Finally, the note focuses on the incorporation of Jewish law into English practice through a series of thirteenth century cases involving the same Jewish litigant. Jewish debt procedure had by then become part of everyday business in England. Even as the Jews began to be excluded from moneylending, their procedures were adopted into the general English law governing debt registration and collection. In 1275, the statute “De Judeismo” forbade the Jews’ usurious practices. In 1285, the Statute of Merchants formalized creditor remedies that paralleled the provisions of the Jewish shetar. In 1290, the Jews were expelled, but their credit practices remained.
II. JEWISH CREDIT AGREEMENTS IN FEUDAL ENGLAND
A. THE SHETAR IN JEWISH LAW
The law of the shetar, developed and elaborated by 500 A.D. in the Babylonian Talmud, antedates the Norman Conquest by six centuries. Historically, the “shetar hov” (or generally just “shetar”) was an instrument that established formal obligation, either in contract or in debt. At the moment that a debtor acknowledged his indebtedness through a shetar, a general lien was established encumbering all the debtor’s property as security for ultimate repayment. In case of default, the creditor could proceed not only against movable and immovable property held by the debtor, but also against encumbered land that the debtor had transferred to a third party. The debt attached to the land, and the creditor’s Lien had priority over subsequent alienations.
Because of the severe obligations imposed by the shetar, the contents of the instrument followed a standard form designed to ensure authenticity and precision. Each shetar recited standard clauses of obligation, the creditor’s right to customary modes of execution, and a final phrase stating that the document was not merely a form but a statement of an express contract. Inserted into the form language were the names of the parties, the sum and the currency of the debt, and the date of the obligation, thereby indicating the creation of the lien. To prevent fraud, the document was signed by two witnesses who knew the parties.
A nation of wanderers, in adapting to a variety of cultures, determined that the language in which the shetar was written should be irrelevant to its legal validity. Thus, in dealings with a surrounding Gentile populace, Jews were content that loan agreements be formalized in Latin or in the Norman French of early England. Generally, the Jewish parties and witnesses would attest in Hebrew and the Christians in French or Latin. Although neither party may have understood the other’s language, the document had the full force of law in both communities.
The crucial limitation on debt collection under Jewish law was that a creditor had a lien against the debtor’s land, but not against the debtor’s person. Personal freedom was not to be diminished by a debt obligation, and a creditor could not enslave one who was unable to repay him. The origin of this practice was the Biblical protection of the dignity of debtors, as embodied in the injunction not to enter the debtor’s home to receive a pledge, but rather to wait outside for the debtor to bring it out. This was the structure of the law of obligation that the Jews brought with them to England.
B. NORMANS IN ENGLAND—A CENTRALIZING MONARCHY
Unique among its feudal neighbors, the Norman Duchy was governed as a centralized unit, with no baron strong enough to challenge the Duke’s authority. Although the Norman Duke owed fealty to the King of France, that King lacked effective power over his vassals, who independently governed their own territories. In Normandy, however, feudalism was strictly territorial: a pyramid of land tenure embodied a system of military obligations ascending from knight through baron to Duke, from whom all land and authority derived. On the continent, and later in England, William the Conqueror set out to maintain and strengthen this Norman system of centralized governance. With the Conquest, the Normans introduced to England a well organized central authority.
The early governance of conquered England concentrated power in the King. As William the Conqueror imposed the rigorous order of the feudal system, he avoided the system’s tendency toward decentralization and disintegration that had sapped the power of the French kings. He limited the power of his tenants-in-chief by granting each of them landholdings scattered over the realm, instead of large, contiguous tracts. He governed the counties through sheriffs who depended on him for their power. He maintained a national militia, thereby shunning total reliance on the loyalty of his tenants-in-chief. And he had all significant landholders swear an oath of primary allegiance to him. This concentration of power in the monarch grew during the successive reigns of a series of strong kings who increasingly assumed more power—military, legislative, and judicial—over the nation.
C. THE JEWS UNDER THE NORMAN KINGS
Outsiders in feudal society, both Anglo-Norman and continental, the Jews were not part of the network of land based obligations. They could not own land. On the Continent, they were owned as chattels by the local lords, who protected the Jews’ possessions on the understanding that what a Jew owned, he held for the ultimate use of his lord. The Jews in Norman England, however, were within the exclusive domain of the King’s personal control, living at his sufferance and according to his wishes. The first settlement of Jews in England came in the wake of William the Conqueror. William determined that he should be the sole owner of Jews in England. Others could own Jews only with the King’s permission as expressed by royal grant. The Leges Edwardi Confessoris, a twelfth-century compilation and translation into Latin of laws attributed to Edward the Confessor, the least vassal to the King. The underlying reality was that the Jews were no more than the embodiment of the King’s accounts receivable. Jews were subject to periodic tallage and tithing when the King required them to turn over money that was held, ultimately, on his behalf. The King preserved the Jews and their investments as representing his own financial future.
The royal charters, in effect, permitted the Jews usufruct of money much as their Christian neighbors were permitted use of the land. At the King’s pleasure, they would derive a livelihood by lending money at interest. Because Jews could lend money at interest, they were available to finance excursions to continental Europe and on Crusade. In addition to the extraordinary fiscal demands of the Crusades, the nobles still owed knight service. Taxpaying began to replace personal service in the practice of “scutage”—money assessed from landowners in lieu of knight fees. For this too, the Jews’ assets were liquid, and available for a fee.
It was convenient to the realm to have a source of credit. It was further convenient that the profits from the loan arrangements, forbidden to Christians, be available to the King via his Jews. And it was to the King’s advantage to enforce the contracts of credit made by the Jews.
III. THE JEWISH PRESENCE IN THE DEVELOPING LAW OF COMMERCE
A. IN THE KING’S COURT
The most striking development in English law during the twelfth century was the expansion of the royal courts. Under Henry II, the King’s court assumed an increasing share of litigation that previously had been heard only by local courts. This was done through the issuance of royal writs, originally executory commands to the sheriff, but, with time, increasingly representing a formal summons initiating action in the royal courts. Glanvill’s treatise, written at the close of the reign of Henry II, is in part a form book of writs instructing the proper method of litigation and procedure. The categories of writs reflect the precise boundaries of the then recognized forms of action.
Among the writs developed during this formative period was the writ of debt. Initially, litigants most commonly used the writ to collect loans of money.” Because the Jews were the predominant moneylenders, they would have been the predominant users of the early writ. But the Jews were not merely the unintended beneficiaries of a fortuitous royal innovation. Taken together, the coincident circumstances of the Jews’ relation to the King, the then unique form of relief afforded them by their shetars, and certain peculiarities in the wording of the early writs all suggest that the Jews contributed in heretofore unexplained ways to the development of the early writ of debt. In accord with their traditional practice, when the Jews lent money, they did so under written credit agreements documented in the traditional form of the shetars. Because of his relation to the Jews, the King had manifold interests in enforcing these shetars. And, because “what the Jews held, they held for the King,” what the Jews lost through litigation or to an evasive debtor was lost to the King. Nor were these losses small: the Jews accumulated immense wealth through their moneylending and the King’s Exchequer relied heavily on the Jews as an important source of tax revenues. And the King had an even more immediate stake in the revenues from court costs. When the debtor refused to pay, the King enforced the Jewish contracts through his royal court, at a cost of one-tenth to one sixth of the sum at issue. Yet, despite the royal interest, the questions posed by litigation of the shetar were not questions that English practice was designed to solve.
When a Jew sought to enforce a shetar, he asked alternative forms of relief: payment of the money owed or award of the land and chattels securing the debt. But this request apparently was an aberration from English practice of the early twelfth century. A Jew’s request tracked the terms of his unique contract: only a Jewish creditor of a defaulting debtor would be forced to seek either money or security, because only his alien procedure left the debtor in possession of the land pledged to secure the debt.
It appears likely that, at that time, a Christian litigant asked for only a single remedy, either a thing or money. A Christian creditor took and kept possession of the land until the debt was satisfied. In case of default, therefore, his suit would be for money only. If the debtor wrongfully put him out of possession of the land securing the debt, English practice barred the Christian creditor from bringing an assize of novel disseisin to recover the land: the English system relegated him to a suit only for the underlying debt. Conversely, the debtor regained the possessory rights to his property once the underlying debt was satisfied. If the creditor refused to return the security, the debtor’s suit would be limited to return of the pledged property. A Jewish creditor was apparently the only person in the realm who would seek execution on a significant personal obligation by either transfer of a thing or payment of a sum.
A Jewish creditor’s ability to ask two forms of relief gave him more than the obvious advantage over a Christian creditor. Important procedural privileges inhered in the option of getting real relief for a personal obligation. The conventional litigant, suing on a personal obligation and seeking only money, could not get judgment if the defendant did not appear in court. In contrast, any litigant seeking an award of land would be awarded judgment if the defendant had been absent, without excuse, after three successive summonses. After the defendant’s third unexcused absence, the land was “seized into the King’s hand” for fifteen days and then adjudged to the plaintiff. Consequently, only a litigant demanding land was assured complete relief regardless of a defendant’s attempts to evade the court’s power. Other litigants could gain access to defendants’ property only through successful attempts to secure defendants’ presence through distraint of chattels and lands. This disparate justice dissatisfied Bracton, who proposed that the courts grant relief to claimants of personal obligations who were faced with a defaulting defendant by the distraint and award of the defendant’s property. But because this solution was not generally adopted until 1832, a Jewish creditor’s avenues of enforcement remained unique in medieval England, enabling him to pursue his claim to judgment even though the defendant did not appear to answer the writ.
The Jews asked for a remedy that the English system was unaccustomed to offering. This challenge was met by the King, who himself commanded enforcement of the terms of the shetar. The King first manifested his interest in a command to pay in the form of a writ praecipe, which if disregarded, conferred jurisdiction on the King’s court. By the shetar’s terms, the debtor had the choice of paying the debt or relinquishing the property which secured the obligation. To enforce this choice, the King’s command would have had to reflect the divergent remedies: money or property. Eventually, this form of writ praecipe evolved into the writ of debt.”
The King’s intervention on behalf of his Jewish moneylenders may explain and in turn have produced some anomalous terminology in the early development of the writ of debt. The wording of the writ evidences the intrusion of land interests into personal litigation. In the writ, as exemplified in Glanvill, the King ordered the Sheriff to “[o]rder N. to give back justly and without delay to R. a hundred marks which he owes . . . and of which .. . he deforces him unjustly.””Professor van Caenegem observes that this wording closely resembles that of the classic praecipe for land. Specifically, the writ of debt adopted the words “unjustly deforces” (unde . . . ei iniuste deforciat) from the praecipe. To “deforce” is to wrongfully withhold possession of land from one who is lawfully entitled to it. The impropriety of the transplanted terminology, therefore, lies in the sense of the wrong conveyed by the words, “unjustly deforces,” which calls for an immediate remedy for an egregious interference with land tenure. But the underlying complaint was default on a debt. Thus the terms of the writ appear to ask for inappropriate relief. Noting the apparent confusion,”van Caenegem indicates that Jews were the principal beneficiaries of the early writ.
The “misuse” of the words “unjustly deforces” in the early writs conveys more than just the verbal conservatism of the early common law. Use of the term implies an underlying land obligation securing a certain sum, which suggests the existence of an arrangement like the Jewish shetar. Here, however, the King himself compelled payment in money or in land to be made by the debtor found in breach of a private agreement. The term “deforce,” then, communicates the Jew’s ability to circumvent the procedural limitations of personal actions.
R.L. Henry has suggested, alternatively, that the writ used “deforce” to connote a breach of the King’s peace: as an empty incantation with the single purpose of lending substance to a claim of the King’s jurisdiction. The King did not customarily intervene in private disputes. The purported fiction was that withholding payment on a debt breached the King’s peace. Henry argues that the formalism was dropped once the action was well-established and the fiction no longer necessary.
But the invocation of the King’s peace has another explanation, derived from the unique relationship between the King and his Jews. Because the early actions at debt were principally on behalf of Jews, and because Jews claimed their rights in the King’s name, all obligations owed to them were ultimately owed to him. Withholding a debt owed, even indirectly, to the King is a breach of the King’s peace that requires no legal fiction. If the price of the writ was paid, the King’s courts were ready to stand behind a Jewish creditor’s complaint in debt. To enforce the debt was to restore peace to a small part of the realm.
Use of the term “deforce” symbolizes the courts’ interference with rights in land. Used to imply “breach of the peace,” it invokes the image of the King’s wrath. The otherwise puzzling formalism signaled an institutional conflict: in the courts of feudal England, land tenure had been distinct from personal rights in law. Jews were asking the courts to award land—to compel transfer of property to satisfy a personal obligation—before final judgment. Because the King was, in effect, the real party in interest, the interference with land tenure was done with his consent and support. Lacking the King’s hand, the action would have been impossible. Only the King’s interest in enforcing Jewish creditors’ remedies could make possible this invasion of land beyond the limits of relief in personal actions.
The traditional Jewish procedure governing lien-accompanied debt was an innovation in feudal society. The embryonic legal system lacked the terminology to describe a private judicial proceeding for money that jeopardized possession of land. From this came the hybrid use of the term “deforce.””Deforce” disappeared from the King’s court shortly after the time of Glanvill, approximately the time when Jewish litigation had been removed to the newly established Exchequer of the Jews. In the seignorial courts, the term fell into disuse by 1291, one year after the expulsion of the Jews from England. Though this may be adventitious, the decline of the phrase and its underlying Royal obligation coincides with the decline of the Jews in England. When the King’s Jew was no longer the creditor, default on a debt no longer implicated the interest of the Royal treasury.
B. THE EXCHEQUER OF THE JEWS
At no time during their two-century presence in England were the Jews perceived as more than a necessary evil: a source of capital. The Jews, welcomed as moneylenders, were despised as creditors. So long as the King enforced the Jews’ debt instruments, the best way to avoid obligation was to attack the Jewish community, destroying people and records. Sporadic incidents culminated in riots against the Jews during the Coronation of Richard I in 1189 and in the Massacre at York in 1190. Beseiged by the mob, hundreds of the York Jews chose death over baptism. The warriors, joining religious hatred to their economic motivation, were quick to destroy the deposits of shetars held within the Jewish community. At York, the riot was instigated by Richard Malebysse, a nobleman deeply indebted to the Jews. After 500 Jews died in the Citadel, Malebysse led the mob to the Cathedral, where they destroyed the debt records, which had been held for safety in the Chapter House. When the smoke cleared, both creditor and debt had been eradicated.
Following his return from the Crusades and release from captivity, Richard I was displeased by the attacks on his Jewish moneylenders. Because duplicates did not exist for many of the documents destroyed, the King was unable to collect debts that would otherwise have escheated to him. He was concerned with preserving a record of debts owed to ensure their payment. By 1200, this concern prompted the establishment of Archae (Registry of Bonds) and of the Exchequer of the Jews.
Archae were established in all towns with sizeable Jewish populations. The registries consisted of Chirograph Chests and four Chirographers—two Christians and two Jews—and their clerks. The Chirograph procedures were strongly reminiscent of traditional Jewish practice. All bonds were to be formalized in the presence of the official witnesses, and immediately duplicated. The original and duplicate were usually written on the same skin and were divided by an irregular cut, producing corresponding tallies. The Archa retained the duplicate, which was called the pes or “foot” of the bond, while the creditor retained the original, with the debtor’s seal affixed. When the debtor satisfied the debt, the creditor gave the debtor a deed of acquitance. The debtor could then prove satisfaction of the debt only by delivering the acquittance to the Archa, for which he obtained the pes, which cancelled the debt. No debt, acquittance, or assignment of debt was valid unless filed in the Chirograph Chest, which could be opened only by order of the Exchequer or in the presence of a majority of the Chirographers.
The King’s Exchequer oversaw the King’s accounts. A contemporary treatise described its organization and duties: the “Dialogue of the Exchequer.” Litigation of Jewish debt instruments comprised a substantial portion of the Exchequer’s business, so much so that a separate branch was created to try Jewish causes. Beginning in 1198, “Custodes Judaeorum,” or “Wardens of the Jews,” were appointed, subordinate to the Exchequer. The Custodes Judaeorum were the first Justices of the Jews. They exercised exclusive jurisdiction over all matters involving Jews and Christians, except those in which the Jew was criminally accused. During the thirteenth century they were charged with enforcing the shetars of the Jews. This special branch of the Exchequer could effectively ascertain the amounts due the King’s treasury via the King’s Jews.
The Chirograph Chests preserved the bonds of debt and the deeds of acquitance and the Archae preserved the Chirograph Chests. Many of the pleas brought before the Exchequer of the Jews still survive, and a substantial body of legal paper memorializes the interaction of the thirteenth-century British legal system with the Jewish law of the shetar. Surviving records indicate that the Exchequer of the Jews presided over matters arising from the full range of interactions between Christians and Jews. The primary document offered to prove the transfer of interest in land and the establishment, transfer, or satisfaction of a debt was the shetar.
C IN THE MATTERS OF COK HAGIN
The records of the Exchequer reveal the tensions between several elements: the King’s thinly disguised economic interest, the court’s struggle between formalism and alien law, inter-religious suspicions, and everyday venality. Within the pleas of the Exchequer of the Jews, the appearances of one recurrent illustrate not only the limits of the Jews’ personal freedom in English society, but also the extensive reliance on Jewish legal practice in the King’s court.
Cok’s first appearance was in 1272, when the Queen, through her clerk, claimed from him 100 pounds “in ready money.” Instead of paying immediately, Cok acknowledged debts to the Crown amounting to 100 pounds, but not in ready money, and asked that the King’s Council render judgment. To support the Queen’s claim, the Queen’s agent appealed to the King’s Council, the Queen’s Council, and the eyewitnesses to the making of the agreement. Cok agreed to pay the debt in two installments and named four Jews as sureties. If he defaulted, they, equally with him, would be subject to distraint of their lands, debts owing, chattels, and their bodies.
In 1273, Cok appeared with several others to pay a partial sum to delay the tallage assessed in the Easter Term of the first year of Edward I’s reign. They asked respite for the greater part owed, and agreed on a penalty that each would owe in default. Later that year, the court noted that the appointed date had passed without payment of tallage or penalty. The penalty was assessed and paid.
One year later, Cok Hagin appeared as co-surety to receive custody of Joce Bundy, a Jew who was charged with lending “money to Christians by blank tallies, leaving blank the amount due until after the debtor had signed. Additionally, Bundy was charged with having lived, for some time, in Rayleigh without the King’s license. For this offense all Bundy’s goods and chattels were forfeit to the Crown. When Bundy failed to appear for his appointedcourt date, the court found Cok Hagin and his co-surety “in mercy.”
In 1275, the King notified his Justices that he had granted all of Cok Hagin’spossessions as gifts to his “dearest Consort, Eleanor, Queen of England.” Shewas to receive all of the Jew’s debts owing and all his goods and chattels. These were forfeit because Cok Hagin was excommunicate for refusing to submit to trial “according to the Law and Custom of the Jewry.”‘Edward conditioned ditioned this gift to Eleanor upon her making good to the King, before Christmas, “the arrears of the last tallage assessed upon him, the Jew.”
By 1282, in the tenth year of Edward’s reign, Cok was again doing business. In that term, Cok summoned Roger de Ling to answer for the principal and interest owed on a debt represented by one Chirograph, sworn to be duplicated in the London Chirograph Chest.In the same year, Cok’s real estate deals apparently proliferated. In return for a fee interest in a plot ofland and a house in London, he exchanged a nine-year term on a farm in Essex in which he had a liveried interest. The farm had been obtained “on account of divers debts” of the former owner, a knight. The prior agreement, transferring the farm, was duly enrolled at the Exchequer. For his new property, Cok Hagin agreed to pay yearly, at Easter, “one gillyflower” to the former tenant and also to render “to the capital lords of the fee the services due and wonted therefor, in discharge of all secular services, customs, and all things exacted and demanded.” The two charters, granting respectively the properties to their new owners, contain the warranties, witness attestations, seals, and signatures required by the law of the shetar. The court received these elements as proof of the agreement’s validity. The court also recorded that the Queen’s attorney was present to give her consent and acknowledgement to Cok Hagin’s document.
Cok Hagin’s last appearance is as one of a group of the descendants of Master Elias joining together to acknowledge, by their shetar, the acquittanceof an ancient debt to their father. As his heir they released the debtor “from the creation to the end of the world.” “By spontaneous and unanimous consent,” they discharged the debt as fully paid. The surviving records of the Exchequer of the Jews cover a limited period (1220-1284). Cok Hagin’s experience is representative insofar as it illustrates personal and religious disputes, shetars of property transfer, debt registration and acquittance, and a royal conveyance whereby his goods and, arguably, he himself were granted to the Queen. The Exchequer enforced the law “according to the customs of the Jewry” for nearly a century until the expulsion in 1290. Over time, the alien ways of the Jews had become the subject of everyday litigation in the King’s courts.
IV. CONCLUSION: THE EXODUS AND WHAT THE JEWS LEFT BEHIND
Interdicta est iudeis
licentia usurandi –
Illustration of Jew wearing
badge required by
1275 Statute forbidding
Jews the practice of usury.
(MS British Museum)
Ruling during an era of socio-economic change (1272-1307), Edward was wont to legislate accordingly. And Edward was weary of the Jews. Thus he issued laws forbidding the Jews from holding real property, denying them usurious practice, and ordering them to wear distinctive dress and identifying badges. Even as he restricted Jewish moneylenders, Edward expanded the universe of non-Jewish moneylending. He had before him a model of secured debt contracts, enforced for centuries by the royal courts for the royalusurers. In the Statute of Merchants of 1285, Edward extended to creditors the forms of registry, remedy, and enforcement that had previously been the substance of the Exchequer of the Jews. Under the Statute, a debtor acknowledged the existence of his debt before the Mayor and one of the recording clerks. The clerks recorded the debt in two rolls, one to remain with the Mayor, one with the clerks. In his own recognizable handwriting, the clerk prepared a debt instrument, to which the debtor affixed his seal and the officials affixed the King’s seal. This instrument was given to the creditor, who would present it to the Mayor and the clerks to prove his rights if the debtor defaulted.
More than the enrolment procedures paralleled the structures of the Exchequer of the Jews. The remedies also extended to Christian creditors the relief formerly available only to Jews. No longer was a Christian creditor’s relief before judgment limited by the debtor’s absence. If the Christian creditor presented to the Mayor a matured, acknowledged debt instrument corresponding to an enrolled debt, he had established full right to relief. If the debtor did not pay, the creditor eventually obtained access to the debtor’slands, even as the Jews had done for years. And if the creditor were ejected from the debtor’s lands, he could bring an assize of novel disseisin to be put back in possession. The Statute of Merchants expressly allowed merchants “damages, and all necessary and reasonable costs in their labors, suits, delays, and expenses, “the same label that disguised otherwise usurious interest in Jewish contracts. Finally, the King assumed the duty of maintaining the Roll of Debts, affixing his seal next to the debtor’s and charging one penny for each pound of obligation. The new law expressly excluded Jews. Five years after the Statute of Merchants, Edward I expelled the Jews from England. Religious hostility was rife. Repeated tallages had depleted the Jews’ resources and lessened their value to the King’s purse. No longer were the Jews the unique source of credit in England. By the Statute of Merchants, Edward had granted to all non Jewish creditors the same remedies and procedural rights previously available to Jews. Debts were secured by land, and the security interest survived the death of the creditor and the alienation of the property.
In addition to the property that escheated to the King on their departure, the Jews left behind a law of debtors and creditors developed in the Talmud, introduced in the Exchequer, and preserved in the laws of England. Traces of the shetar procedure survived for centuries in English law. A sealed debt continued to be dischargeable only by a deed of release or by cancellation or destruction of the debt instrument. The practice of debt cancellation by requiring return of the pes of the chirograph continued from 1194 until its abolition by statute in 1833.
Most important, the encumbrance of real property permitted by the Jewish Law of the shetar had been adopted by English law. Bonds contained the traditional Hebrew formula pledging “all my goods, movable and immovable.”184
Creditors had the statutory right to execute against the debtor’s land. No longer were personal obligations and rights in land rigidly separate. Even while Edward was divesting himself of his Jewish moneylenders, he made their
legacy permanent. A small but significant principle of Jewish Law, wherein personal debt superseded rights in real property, had become the law of the land.