NOTE 



The Shetar's Effect on English Law— A Law of 
the Jews Becomes the Law of the Land 

The rational study of law is still to a large extent the study of history. 

Holmes, The Path of the Law 1 

I. INTRODUCTION 

English law, like the English language, is an amalgam of diverse cultural 
influences. The legal system may fairly be seen as a composite of discrete ele- 
ments from disparate sources. After the conquest of 1066, the Normans im- 
posed on the English an efficiently organized social system that crowded out 
many Anglo-Saxon traditions. 2 The Jews, whom the Normans brought to 
England, 3 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. 4 Notable among these is the written credit agree- 
ment — 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) 5 that has 
been traced as a source of the modern mortgage. 6 Under Jewish law, the shetar 

1. 10 HARV. L. REV. 457. 469 (1897). 

2. I CM. TREVELYAN, HISTORY OF ENGLAND 142-48 (1953). 

3. 1 F. POLLOCK 4 F.W. MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF ED- 
WARD I 468 (reissued 2d ed. 1968). There is some dispute whether the Jews arrived by William the 
Conqueror's invitation or merely with his permission. 4 S. BARON, A SOCIAL AND RELIGIOUS HISTORY 
OF THE JEWS 77 (1957). 

4. See generally J. RABINOWITZ, JEWISH LAW 250-72 (1956) (discussing Jewish Gage, Odaita. Starr 
of Acquittance, and Representation by Attorney). 

5. See infra text accompanying notes 34-36 (describing shetar and accompanying lien). 

6. Rabinowitz, The Common Lav Mortgage and the Conditional Bond, 92 U. PA. L. REV. 179-94 
(1943). The author traces the two-instrument (debt and release) mortgage to its origin as a device to 
avoid asmakhta. a Jewish principle invalidating penalty clauses. Under that doctrine. Jewish money 
lenders were forbidden to exact a penalty conditioned on the future failure of the debtor's obligation. 
Id. at 184-85. If a conveyance involved asmakhta, it was void. Id at 182. Invalidation as asmakhta 
could be avoided if all obligations were incurred at the time of the original transaction. Id. at 184. 185- 
86. Land was seizable as security only if the creditor went into possession at the time of the loan: 
"Meakhshav" — "from now". Id at 185. For this reason, the debt instrument included an immediate 
conveyance of the land that was to serve as security against default. A second instrument, the acquittal, 
would release the security and reconvey the land to its original owner if the debt were paid on or before 
its due date. Id. at 185. The entire written obligation (shetar) remained in the hands of a third party for 
the duration of the debt. Id at 192. The document proved that the debt existed and clarified the rights 
and duties of the parties in case of default. See also 2 C HERZOG, THE MAIN INSTITUTIONS OF JEWISH 
LAW 71-92 (2d ed. 1967) (chapter on asmakhta). 

Rabinowitz finds in these and other early Jewish devices for avoiding asmakhta both the structural 
and substantive roots of the English mortgage and the later developed equitable right of redemption. J. 
RABINOWITZ. supra note 4, at 250-72. See also F. LINCOLN, THE STARRA 47-50 (1939) (outlining the 
same derivation); see generally F. LINCOLN, THE LEGAL BACKGROUND TO THE STARRA (1932) (same). 
Compare the historical period of equitable right of redemption with the same term of protected re- 



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permitted a creditor to proceed against all the goods and land of the defaulting 
debtor. 7 Both "movable and immovable" property were subject to distraint. 

In contrast, the obligation of klight 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. 9 The dominance of personal feu- 
dal loyalties equally forbade the attachment of land in satisfaction of a debt; 
only the debtor's chattels could be seized. 10 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 Eng- 
land. To obtain funds from Jews, nobles offered their land as collateral. 12 Al- 
though the Jews, as aliens, could not hold land in fee simple, 13 they could take 
security interests of substantial money value. 14 That Jews were permitted to 
hold security interests in land they did not occupy expanded interests in land 
beyond the traditional tenancies. 15 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 widesnread innovation abated. By 1250, scutage 1 ' had completely re- 
placed leuflal services: tenant obligations nad been reduced to money pay- 



demption in Leviticus 25:29: "And if a man sell a dwelling house in a walled city: then he may redeem 
it within a whole year after it is sold; for a full year shall he have the right of redemption." Id 

I. J. RABINOWITZ, supra note 4, at 253. See infra text accompanying notes 33-47 (describing shetar in 
Jewish law). 

8. Set infra text accompanying note 35 (extent of lien imposed by shetar). 

9. T.F. BERGIN A P.O. HASKELL, PREFACE TO ESTATES IN LAND AND FUTURE INTERESTS 8 (1966). 
Land tenure was central to social organization within the feudal system: 

The feudal system originated in the relations of a military chieftain and his followers, or king 
and nobles, or lord and vassals, and especially their relations as determined by the bond 
established by a grant of land from the former to the latter. From this it grew into a complete 
and intricate complex of rules for the tenure and transmission of real estate, and of correlated 
duties and services .... 

BLACK'S LAW DICTIONARY 560 (rev. 5th ed. 1979) (emphasis in original). 

10. 2 F. POLLOCK A F.W. MAITLAND. supra note 3. at 596. 

II. See H.G. RICHARDSON, THE ENGLISH JEWRY UNDER ANGEVIN KINGS 94 (I960) (Jews' liquida- 
tion of land obligations broke down rigidity of structure of feudal land tenure and facilitated transfer of 
land to new capitalist class). 

12. E. JENKS, EDWARD PLANTAGENET, THE ENGLISH JUSTINIAN 40-41 (1923). 

13. See F. LINCOLN, THE STARRA 114-1hfp5; __utJews could possess lands, but not hold by fee); 
SELECT PLEAS, STARRS, AND OTHER RECORDS FROM THE ROLLS OF THE EXCHEQUER OF THE JEWS ix- 
x (J.M. Rigg ed. & trans. 1902) [hereinafter J.M. RIGG] (Jews religiously barred from swearing Chris- 
tian oath of fealty, and therefore disabled from holding feudal estate). 

14. E. JENKS, supra note 12, at 40-41. 

15. Cf. 1 F. Pollock A F.W. MAITLAND, supra note 3, at 469 (alien to English law for creditor not 
in possession of land to have rights in it). 

16. E. JENKS, supra note 12, at 41. 

17. Scutage, in medieval feudal law, was a payment by the tenant in lieu of military service. D. 
WALKER. THE OXFORD COMPANION TO LAW 1121 (1980). See Infra note 18. 



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ments. And as the identity of the principals in the landlord-tenant 
relationship became less critical, a change in the feudal rules restricting aliena- 
bility 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 Eng- 
land had a specified legal status. They alone could lend money at interest. 19 
They were owned by the King, and their property was his property. 20 The 
King suffered their presence only so long as they served his interests 21 — pri- 
marily as a source of liquid capital. 22 

Becau Jews, whonding by Christians was infrequent, English law had not 
established its own forms of security. 23 The Jews operated within the frame- 
work of their own legal practice, 24 which was based on Talmudic law devel- 
oped 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. 25 Previously inalienable rights in land gave way to eco- 
nomic necessities, and the English ultimately adopted the Jewish practices. 26 

This note examines a moment of contact between two peoples, when neces- 
sity, proximity, and social upheaval prompted a cultural exchange between the 
Jewish merchants and moneylenders and those they served. The note de- 
scribes the effect on English law brought about by the King's Jews as they 



18. In feudal land holding, the tenant's possessory right in land was limited to usufruct, as granted 
by the King, who retained absolute dominion over the land. The denotation of the tenant's interest as 

fee (ox fief , feud, or feodum) reflected the tenant's obligation to render service to the sovereign in return 
for the privilege of using the land. 2 W. BLACK STONE, COMMENTARIES 104-05. 

During the first century of nd, 92 U.  Conquest land was held by military tenure, in which the 
tenants owed a specified number of days per year in knight service. 1 F. POLLOCK A F.W. MAITLAND, 
supra note 3, at 252. Either the tenants or their servants owed personal service in the King's army. 
Later, the King came to require a standing army to pursue extended campaigns on the Continent. Id. 
In place of short-term combat service, the King accepted "scutage" (literal derivation: "shieldage"), 
whereby his tenants-in-chief sent money in lieu of themselves or their knights. Id. at 266. The scutage 
fees enabled the King to employ professional troops and permitted the gentlemen to remain at home. 
Id. Set generally id at 252-82 (section on knight's service). By the reign of Edward I in 1272, both 
personal service and scutage failed to provide adequate military resources; additional taxes were insti- 
tuted in their stead. E. JENKS, supra note 12. at 102. 

19. 1 F. Pollock A F.W. MAITLAND, supra note 3, at 468. 

20. Id at 468. 471. 

21. See Mandatum Regis Justiciariis Ad Custodiam Judeorum Assignatis de Quibusdam Statutis per 
Judeos in Anglia Firmiter Observandis. Anno Regni Regis Henrici Tricesimo Septimo (Mandate of the 
King to the Justices Assigned to the Custody of the Jews Touching Certain Statutes Relating to the 
Jews in England Which are to Be RIGorously Observed. The Thirty-Seventh Year of King Henry) 
[A.ctural 
aMandate of Henry III ordaining "(t)hat no Jew remain in England unless he do the King 
service, and that from the hour of birth every Jew, whether male or female, serve Us in some way"), 
printed in J.M. RIGG, supra note 13, at xlviii-xlix. 

22. 1 G.M. TREVELYAN, supra note 2, at 250-51. 

23. J. RABINOWITZ, supra note 4, at 262. 

24. Set J.M. RIGG, supra note 13, at xix (Jews made loan arrangements according to traditional law 
of the shetar). 

25. See 2 F. POLLOCK A F.W. MAITLAND, supra note 3, at 123-24 (Jewish creditors' rights in land 
enforced by King; same rights not available originally to Christian creditors). 

26. See 1 F. POLLOCK A F.W. MAITLAND, supra note 3, at 475 (Second Statutes of Westminster of 
1285 gave Christian creditor the remedy of elegit, similar to the choice of remedies afforded Jewish 
creditors). See also Infra text accompanying notes 168-78 (Statute of Merchants adopted enrollment 
procedures and eventual award of land to unpaid creditor). 



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executed and registered debt instruments, assigned and enforced the underly- 
ing obligations, and generally survived by moneylending, the only profitable 
occupation open to them. 27 It first reviews the Jewish credit agreement and its 
function in Anglo-Norman feudal society. It then suggests a rational explana- 
tion for a development in medievce of land 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 registra- 
tion and collection. In 1275, the statute "De Judeismo" 28 forbade the Jews' 
usurious practices. 29 In 1285, the Statute of Merchants 30 formalized creditor 
remedies that paralleled the provisions of the Jewish shetar. 31 In 1290, the 
Jews were expelled, 32 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 Babylo- 
nian Talmud, antedates the Norman Conquest by six centuries. 33 Historically, 
the "shetar hov" (or generally just "shetar") was an instrument thattem origined 
formal obligation, either in contract or in debt. 34 At the moment that a debtor 
acknowledged his indebtedness through a shetar, a general lien was estab- 
lished, encumbering all the debtor's property as security for ultimate repay- 
ment. 35 In case of default, the creditor could proceed not only against movable 

27. 1 F. POLLOCK A F.W. MAITLAND, supra note 3. at 471 (English Jews could profitably engage 
only in moneylending). Although the Talmud prohibited charging interest on loans, even to Gentiles, 
authorities including Rabbenu Tarn (a 12th-century Talmud scholar whose opinions are still cited with 
respect) permitted Jews to lend Gentiles money at interest "because no other avenues of trade or com- 
merce (were) open to Jews, and the lending of money (was) the only means of livelihood left to them." 
D M. SHOHET, THE JEWISH COURT IN THE MIDDLE AGES 89-90 (1931). 

28. 1 STATUTES OF THE REALM 221 (London 1810 A photo, reprint 1963). This statute, which is 
undated, is generally thought to date from 1275. See 10 S. BARON, supra note 3, at 111 (attributing 
statute to 1275); J.M.RIGG, supra note 13, at xxxviii (attributing statute to 1274-75). STATUTES OF THE 
REALM attributes the statute to either 4 Edw. (1275-76) or 18 Edw. (1289-90). 1 STATUTES OF THE 
REALM 221 n.[l). 

29. SeeLesEstatutz de la Jeuerie (The Statutes of Jewry) <pgrph> 1 STATUTES OF THE REALM 22 1,221 
(pro7. Scutaget henceforth no Jew lend at usury upon land, rent, or other thing; that interest accruing 
after previous Feast of St. Edward not be collectible; that debts to Jews secured by chattels be paid by 
Easter or be forfeited; and that the King will no longer enforce the Jews' usurious contracts, but will 
punish the lender). 

30. Statute of Merchants, 1285, 13 Edw., Stat. 3. 

31. See infra text accompanying notes 168-78. 

32. 10 S. BARON, supra note 3, at 113. 

33. G. HOROWITZ, THE SPIRIT OF JEWISH LAW 16 (1953). 

34. Fuss, Shetar, in PRINCIPLES OF JEWISH LAW 186 (M. Eton ed. 1975). 

35. Id The shetar imposed a lien on all the real property Out the debtor owned at the time of the 



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and immovable property held by the debtor, but also against encumbered land 
that the debtor had transferred to a third party. 36 The debt attached to the 
land, and the creditor's Lien had priority over subsequent alienations.- 17 

Because of the severe obligations imposed by the shetar, the contents of the 
instrument followed a standard form designed to ensure authenticity and pre- 
cision. 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. 38 Inserted into 
the form language were tiously inaf the parties, the sum and the currency of 
the debt, and the date of the obligation, thereby indicating the creation of the 
hen. 39 To prevent fraud, the document was signed by two witnesses who knew 
the parties. 40 

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. 41 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. 4 Generally, the Jewish parties and witnesses would attest in 



instrument's formation, regardless of whether the lien was expressly written into the shetar. Jewish law 
originally did not attach debt obligation to chattels. During the amoraic period. Jewish law extended 
the lien to the movable property of the debtor if specifically noted in the shetar. But the rabbinic courts 
would not enforce a lien against movable property that had been sold by the debtor to a third party. Id. 

36. Id at 186. During the post-Talmudic period, it became customary to insert in the shetar a provi- 
sion imposing a lien on the debtor's after-acquired property. J. RABINOWITZ. supra note 4, at 254. 

37. Eton, Lien, in PRINCIPLES OF JEWISH LAW 288 (M. Eton ed 1975). 

38. Fuss, supra note 34, at 184-85; G. HOROWITZ, supra note 33, at 509-11. 

39. G. HOROWITZ, supra neir knight 511. 

40. Id at 511. In contrast to the documentary procedure of the written shetar, credit agreements also 
could be made orally under Jewish law. Milveh be-al peh — literally "loan by mouth" was distin- 
guished from milveh bi shetar — "loan by writing." Shiloh, Loans, in PRINCIPLES OF JEWISH LAW 262 
(M. Eton ed. 1975). The oral creditor, however, had no right to levy on the debtor's alienated and 
encumbered property to obtain satisfaction of the debt Id 

41. 1 C. HERZOG, THE MAIN INSTITUTIONS OF JEWISH LAW 152 (2d ed. 1965). 

From the time of the Jewish exile in Babylonia, 586 B.C., the Jews had lived as outsiders in foreign 
lands. In order to live within their own law, they developed a doctrine to minimize conflicts between 
Jewish law and the law of the surrounding community. G. HOROWITZ, supra note 33. at 79. In deal- 
ings with the Christian populace, the Jewish community followed the principle that "the law of the 
Kingdom is the Law" (dina de-malkhuta dina). They accepted and obeyed any law that did not con- 
flict with Jewish laws governing specific religious obligations. Dina De-Malkhuta Dina. in 6 ENCYCLO- 
PEDIA JUDAICA 51, 54 (1972). Respect for the rale of the Gentile sovereign raised the problem of 
determining the applicable law: 

The decrees of the king are law to us; but the national law is not our law. Among all nations 
there are cer rights inmental rights and privileges which belong to the sovereign. Within this 
scope, the commands of the king are law. But this does not bold true of the judgments ren- 
dered in their courts. For the laws which the courts apply are not the essence of royalty. They 
are based on the precedents to be found in their writings. You cannot dispute this distinction, 
for otherwise you would annul, God forbid, the laws of the Jews. 

0. HOROWITZ, supra, at 79-80 (quoting Rashba, Rabbi Solomon ibn Adret of Barcelona (1235-1310)). 

Jewish courts would enforce external civil laws and formalities, id at 80, but did not permit such civil 
law to sanction behavior otherwise forbidden to Jews. Id Thus, a transaction enforceable in Gentile 
courts might still be invalidated (as applied to Jews) by a Jewish tribunal. Id at 80-81. 

42. J.M. RIGG, supra note 13, at xix. See HEBREW DEEDS OF ENGLISH JEWS (M.D. Davis ed. A 
trans. 1888) [hereinafter M.D. DAVIS] (reproducing the Hebrew portion of shetars in Hebrew and 
Latin); STARRS AND JEWISH CHARTERS PRESERVED IN THE BRITISH MUSEUM (1. Abrahams, H.P. 
Stokes A H. Loewe eds. A trans. 1930-32) (hereinafter STARRS AND CHARTERSI (reproducing Hebrew 
and Latin portions of shetars). 



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Hebrew and the Christians in French or Latin. Although neither party may 
have understood the other's language, the document he Jewish 
l force of law 
in both communities. 44 

The crucial limitation on debt collection under Jewish law was that a credi- 
tor had a lien against the debtor's land, but not against the debtor's person. 43 
Personal freedom was not to be diminished by a debt obligation, and a creditor 
could not enslave one who was unable to repay him. 4 * The origin of this prac- 
tice 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. 47 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 author- 
ity. 48 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. 49 In Normandy, however, feudalism was strictly territo- 
rial: a pyramid of land tenure embodied a system of military obligations as- 
cending from knight through baron to Duke, from whom all land and 
authority derived. 5 On the continent, and later in England, William the Con- 
queror set out to maintain and strengthen this Norman system of centralized 
governance.u Tarn (a he Conquest, the Normans introduced to England a well- 
organized central authority. 2 

The early governance of conquered England concentrated power in the 
King. As William the Conqueror imposed the rigorous order of the feudal 

43. See, eg., J.M. Rigg. supra note 13, at xix (Hebrew creditor signed in Hebrew); id at 46 (record 
of Exchequer documenting shetar written in Hebrew with Latin duplicate). In England the terms of the 
acquittance took the Jewish form of the release: "from the beginning of the world" to the present. J. 
RABINOWITZ, supra note 4, 265-69. 

44. Both Jewish and English courts recognized the force of a shetar offered as evidence of a debt. 
J.M. Rgg, supra note 13. at xix-xx. Rigg describes the elaborate recording and witnessing procedures, 
including both Jewish and Gentile participants, designed to avoid fraudulent documents. Id The 
King's courts enforced a duly enrolled shetar. See infra text accompanying notes 132-48 (discussing 
mechanism by which Exchequer enforced debt obligations). The courts within the Jewish community 
routinely enforced shetars. 

45. Elon, Imprisonment for Debt, in PRINCIPLES OF JEWISH LAW 634 (M. Elon ed. 1975). 

46. id. at 634. See also M. ELON, RESTRAINTS OF THE PERSON AS A MEANS IN THE COLLECTION OF 
DEBTS IN JEWISH LAW (1961) (precis of doctoral dissertation) (Jewish tradition had no personal impris- 
onment for debt, reasoning thaPRINCIPLEStor's home could not be entered, even less could the debtor be 
taken; in the 13th century, Jewish scholars began to debate and approve imprisonment for evasive 
debtors, but only in carefully prescribed conditions). 

Unlike Jewish law, English law specifically envisioned such imprisonment. See Statute of 
Merchants, 1285, 13 Edw., Stat. 3 (establishing imprisonment of the body of a defaulting debtor); Stat- 
ute of Acton Burnell 1283, 1 1 Edw. (if debtor's goods insufficient to satisfy debt, debtor imprisoned 
pending repayment, but creditor responsible for assuring bread and water sufficient to sustain life of 
imprisoned debtor, who must further reimburse creditor upon release). 

47. Deuteronomy 24:10-11 (to preserve debtor's dignity in bis own home). 

48. 1 G.M. TREVELYAN, supra note 2, at 144. 

49. Id at 144-45. 

50. Id at 143. 

5 1 . W. STUBBS, THE CONSTITUTIONAL HISTORY OF ENGLAND 74-75 (abr. ed. 1979). 
52. G.M. TREVELYAN, supra note 2, at 142. 



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system, he avoided the system's tendency toward decentralization and disinte- 
gration that had sapped the power of the French kings. 53 He limited the power 
of his tenants-in-chief by granting each of them landholdings scattered over 
the realm, instead of large, contiguous tracts. 54 He governed the counties 
through sheriffs who depended on him for their power. 5nd. 4 Geneained a 
national militia, thereby shunning total reliance on the loyalty of his tenants- 
in-chief. 56 And he had all significant landholders swear an oath of primary 
allegiance to him. 57 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. 5 

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, how- 
ever, were within the exclusive domain of the King's personal control, living at 
his sufferance and according to his wishes. 60 

The first settlement of Jews in England came in the wake of William the 
Conqueror. 61 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. 62 The Leges Edwardi Confessoris, a twelfth-century compila- 
tion and translation into Latin of laws attributed to Edward the Confessor, 63 



53. W. STUBBS, supra note 51, at 85-91. 

54. Id at 90-91. 

55H LAW 152 . 

56. Id at 86. 

57. Id at 84. 

58. Id. at 117-18. The dates of the Norman and Angevin Kings from the Conquest to the expulsion 
of the Jews in 1290 are: 



William I 


1066-1087 


William U 


1087-1 100 


Henry I 


1100-1135 


Stephen 


1135-1154 


Henry II 


1154-1189 


Richard I 


1189-1199 


John 


1199-1216 


Henry HI 


1216-1272 


Edward 1 


1272-1307 



D. WALKER, supra note 17, at 1317. 

59. F. LINCOLN, supra note 13, at 8-9. As "Administrator of the Realm," the continental King had 
interstitial power in the areas where no vassal could substantiate a rival claim; upon (his theory, the 
King had asserted special authority over widows and orphans, aliens, Jews, lunatics, etc. E. JENKS, 
supra note 12, at 90-91. 

60. F. LINCOLN, supra note 13, at 10. 

61. H.G. RICHARDSON, supra note 11, at 1. 

62. F. LINCOLN, supra note 13, at 10. 

63. 1 F. POLLOCK & F.w. MAITLAND. supra note 3, at 103. Pollock and Maitland believe that the 
laws of Edward the Confessor are of dubious authority as descriptions of historical fact perhaps reflect- 
ing some unknown 12th-century author's hopeful imagination. 



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the least vassal to the King. The underlying reality was that the Jews were no 
more than the embodiment of the King's accounts ce externa. Jews were sub- 
ject to periodic tallage and tithing when the King required them to turn over 
money that was held, ultimately, on his behalf. 82 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 83 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. 8 In addition to the extraordinary fiscal 
demands of the Crusades, the nobles still owed knight service. Taxpaying be- 
gan to replace personal service in the practice of "scutage" — money assessed 
from landowners in lieu of knight fees. 85 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 Chris- 
tians, be available to the King via his Jews. And it was to the King's advan- 
tage 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 courtr the debtenry II, the King's court as- 
sumed an increasing share of litigation that previously had been heard only by 
local courts. 86 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. 87 Glanvill's treatise, writ- 
ten at the close of the reign of Henry II, 88 is in part a form book of writs 
instructing the proper method of litigation and procedure. The categories of 



Becket pointed to the Jews' internal juridical independence as an argument for a separate autonomous 
clergy. 4 S. BARON, supra note 3, at 277. 

82. 10 S. BARON, supra note 3, at 96-99. The Saladin Tithe of 1188, to finance the Third Crusade, 
demanded that the Jews turn over 60,000 pounds, one-fourth of the value of their entire property in the 
country. 4 S. BARON, supra note 3, at 81. 

83. The King forbore from his absolute rights in the Jews' possessions, permitting continued invest- 
ment to accrue profits for his later use. G.M. TREVELYAN, supra note 2, at 251. 

84. E. JENKS, supra note 12, at 40. 

85. 1 F. POLLOCK A F.w. MAITLAND, supra note 3, at 271-74. 

86. R.C. VAN CAENEGEM. ROYAL WRITS IN ENGLAND FROM THE CONQUEST TO GLANVILL 349-51 
(1959). 

87. Id at 195-97. 

88. Glanvill's treatise is believed to have been written between November 29, 1187 and July 6, 1189. 
GLANVILL. supra note 68. at xxx-xxxi. The man whose name the treatise bean, Ranulf Glanvill, was 
appointed Henry H's chief justiciar in 1180. 1 F. POLLOCK & F.W. MAITLAND, supra note 3, at 163. 
After Henry's death in 1189, Glanvill accompanied the new King, Richard I, on Crusade and died in 
Acre in 1190. Id The authorship of the treatise is unknown but has been attributed to at least three 
men: Glanvill; Hubert Walter, who became chief justiciar in 1193; and, Geoffrey fitz Peter, the sheriff 
of Northampton. GLANVILL. supra note 68, at xxxi-xxxiii. It is equally likely that the book is the work 
of an unknown clerk of the King's court. Id at xxxiii. 



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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. 90 Initially, litigants most commonly used the writ to collect loans of 
money." Because the Jews were the predominant moneylenders, 92 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 peculiar- 
ities 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. 93 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," 94 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. 95 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. 96 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. 97 But this request apparently was an aberration from English practice of 
the early twelfth century. 8 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. 99 

89. See GLANVILL, supra note 68, Book X, ch. 7, at 122 (writ of gage); id. Book XII, chs. 3-5, at 150- 
51 (writs of mort d'ancestor). 

90. R.C. VAN CAENEGEM, supra note 86, at 254-56. 

91. 2 F. POLLOCK A F.W. MAITLAND, supra note 3, at 207. 

92. See 1 F. POLLOCK A F.W. MAITLAND, supra note 3, at 473 (Jews had monopoly in lending 
money at interest). 

93. See generally M.D. DAVIS, supra note 42 (reproducing portions of credit agreements between 
English debtors and Jewish creditors); STARRS A CHARTERS, supra note 42 (reproducing Hebrew and 
Latin portions of credit agreements between English debtors and Jewish creditors). 

94. See supra text accompanying note 65 (quoting Bracton). 

95. See H.G. RICHARDSON, supra note 11, at 161-75 (discussing heavy taxation of Jews under Kings 
Henry II, Richard I, and John). 

96. See 10 S. BARON, supra note 3, at 94 (court fee during King John's reign one tenth of debt); R.C. 
VAN CAENEGAM, supra note 86, at 258 (court fees at end of Henry It's reign average one-sixth of debt; 
during 10th year of John's reign, one-seventh). 

97. See supra text accompanying notes 36-37 (describing creditor's remedies under shetar). 

98. The explicit categorization of actions as real or personal did not arise in English law until 
Bracton's time. See Williams. The Terms Real and Personal In English Law, 4 L.Q.R. 394, 398-400 
(1888) (Bracton classifies actions; Glanvill does not). See also 2 H. DE BRACTON. DE LEGIBUS ET 
CONSUBTUDINISUS ANGLIAE 290-91 (G.E. Woodbine ed. A S.E. Thorne trans. 1968) (first division of 
actions). 

99. Set 2 F. POLLOCK A F.W. MAITLAND, supra note 3, at 123 (Jewish creditor frequently not in 



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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 posses- 
sion of the land until the debt was satisfied. 100 In case of default, therefore, his 
suit would be for money only. 101 If the debtor wrongfully put him out of pos- 
session of the land securing the debt, English practice barred the Christian 
creditor from bringing an assize of novel disseisin to recover the land: the Eng- 
lish system relegated him to a suit only for the underlying debt. 102 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. 103 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 con- 
ventional litigant, suing on a personal obligation and seeking only money, 
could not get judgment if the defendant did not appear in court. 04 In contrast, 
any litigant seeking an award of land would be awarded judgment if the de- 
fendant had been absent, without excuse, after three successive summonses. 105 
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.' 06 Conse- 
quently, 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. 107 This disparate 
justice dissatisfied Bracton, who proposed that the courts grant relief to claim- 
ants of personal obligations who were faced with a defaulting defendant by the 
distraint and award of the defendant's property. 108 But because this solution 



possession of land securing debt); 1 F. POLLOCK 4 F.W. MAITLAND, supra note 3. at 469 (Jewish credit 
arrangement novel and alien institution to English because Jewish creditor did not take possession of 
land securing debt). 

100. GLANVILL supra note 68, Book X, ch. 8. at 122-24; 2 F. POLLOCK 4 F.W. MAITLAND. supra 
note 3, at 120. 

101. See GLANVILL supra note 68. Book X, ch. 7, at 122 (writ for summoning debtor to redeem 
gage). 

102. Id Book X. ch. 11, at 126; . see 2 F. POLLOCK 4 F.W. MAITLAND, supra note 3, at 121 ("the 
creditor is really entitled to . . . the debt, not the land. If he comes into court he must come to ask 
judgment for that to which he is entitled"). 

The assize of novel disseisin was a possessory action for land. Through summary process in the 
King's court, a freeholder recently ousted from land could recover possession by showing prior occupa- 
tion without the formality of testing legal title. See 2 F. POLLOCK 4 F.W. MAITLAND, supra note 3, at 
47-52 (describing assize). 

103. GLANVILL supra note 68, Book X, ch. 9, 10, at 125 (writ for summoning creditor to restore gage, 
and different replies of creditor in court). 

104. 2 F. POLLOCK & F.W. MAITLAND, supra note 3, at 594; Williams, supra note 98, at 401. 

105. GLANVILL supra note 68, Book I, ch. 7, at 5-6; 2 F. POLLOCK 4 F.W. MAITLAND, supra note 3, 
at 592-93; Williams, supra note 98, at 400-01. 

106. GLANVILL supra note 68, Book I, ch. 7, at 5-6. This was the procedure under a writ of right for 
land. See id Book I. ch. 6, at 5 (exemplar of writ initiating action). The procedure for novel disseisin 
was similar. Williams, supra note 98, at 401. 

107. Williams, supra note 98, at 401. 

108. 2 F. POLLOCK A F.W. MAITLAND, supra note 3, at 594-95. 



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was not generally adopted until 1832, a Jewish creditor's avenues of en- 
forcement 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 en- 
forcement of the terms of the shetar. The King first manifested his interest in a 
command to pay in the form of a writ praecipe, 110 which if disregarded, con- 
ferred jurisdiction on the King's court. 11 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. 112 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 develop- 
ment 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."" 4 Professor van Caenegem observes that this wording closely 



109. Id. at 595. 

110. See R.C. VAN CAENEGEM. supra note 86, at 254 (writ praecipe for money originated in Henry I's 
with commands to Jews' debtors to pay). The writ praecipe was a summary order from the King to his 
sheriff to command someone to do something (here, to pay money owed) prior to judicial determina- 
tion of the rights of the parties. Id at 234-35. From a purely executive order, the writ developed into a 
form which initiated judicial process in the King's court. Id See generally id. at 234-35 (discussing 
development of writs praecipe). 

Evidence of the issuance of these writs is in the Pipe Roll for the 31st year of the reign of Henry I 
(1130-31). The Pipe Rolls were the annual balance sheets of the Exchequer, recording the accounts 
rendered by those responsible for royal revenues, principally the sheriffs. J. JACOBS, supra note 70. at 
303-04. Because a Jew had to pay the King for the privilege of a writ praecipe, a record of the transac- 
tion was entered on the Pipe Rolls. Among the entries involving Jews for 1130-31 are the following: 

Rubi Gotsce and other Jews to whom earl Ranulf was indebted, owe 10 Marks of gold for that 
the king might help them to recover their debts against the earl. 

Abraham and Deuslesalt, Jews, render account of one mark of gold that they might recover 
their debts against Osbert de Leicester. 

Id at 14-15 (translated from the abbreviated Latin in which the Pipe Rolls were written). Twelfth- 
century Pipe Rolls also survive for the years 1155 to 1200. Id at 305. Joseph Jacobs has collected and 
translated many of the entries involving Jews in these Pipe Rolls. See generally id. at 44-221 (inter- 
spersing select entries from Pipe Rolls from 1155 to 1206). 

111. Id at 234. 

112. Cf. H.G. RICHARDSON, supra note 11, at 112-13 (Pipe Rolls indicate most actions in which Jews 
were plaintiffs were for recovery of money lent or mortgaged land). 

113. R.C. VAN CAENEGEM, supra note 86, at 254. 

114. GLANVILL supra note 68, Book X ch. 2, at 116-17 (emphasis added). The writ of debt in 
Glanvill's original Latin read: 

Rex uicecomiti salutem. Precipe N. quod iuste et sine dilatione reddat R. centum marcas quas 
ei debet ut dicit, et unde quentur quod ipse ei iniuste deforciat. Et nisi Fecerit, sumone eum 
per bonos sumonitores quod sit coram me uel iusticiis meis apud Westmonasterium a clauso 
Pascha in quindecim dies, ostensurus quare non fecerit. Et habeas ibi summonitores et hoc 
breue. Teste etc. 

Id This translated in English: 

The king to the sheriff, greeting. Order N. to give back justly and without delay to R. a 
hundred marks which he owes him, so he says, and of which he complains that he deforces 



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resembles that of the classic praecipe for land. 115 Specifically, the writ of debt 
adopted the words "unjustly deforces" (wide . . . ei iniuste deforciat) m from 
the praecipe. 117 To "deforce" is to wrongfully withhold possession of land from 
one who is lawfully entitled to it. 118 The impropriety of the transplanted termi- 
nology, therefore, lies in the sense of the wrong conveyed by the words, "un- 
justly 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," 9 van Caenegem indicates that Jews were the princi- 
pal beneficiaries of the early writ. 120 

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 
strongly 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 con- 
note 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. 121 The King 
did not customarily intervene in private disputes. 1 2 The purported fiction was 



him unjustly. And if he does not do it, summon him by good summoners that he be before me 
or my justices at Westminster a fortnight after the octave of Easter to show why he has not 
done it. And have there with you the summoners and this writ. Witness: N. At M. 

R.C. VAN CAENEGEM. supra note 86, at 437. 

115. R.C. VAN CAENEGEM, supra note 86, at 254; see also 2 F. POLLOCK 4 F.W. MAITLAND, supra 
note 3, at 173 (writ of debt as given by Glanvill closely similar to writ of right for land known as the 
Praecipe in capite). 

116. Approximately: "of which (hel unjusdy deforces him." See supra note 114 for complete text of 

writ. 

117. R.C. VAN CAENEGEM, supra note 86, at 254; 2 F. POLLOCK 4 F.W. MAITLAND, supra note 3, at 
204. 

118. See D. WALKER, supra note 17, at 347 (defining deforcement). 

119. See R.C. VAN CAENEGEM, supra note 86, at 254 ("unjustly deforces" was "inappropriate in a 
personal action for debt, although appropriate enough in a real action for tenure"). Others have also 
noted the peculiar wording of the writ. See R.L. HENRY, CONTRACTS IN THE LOCAL COURTS OF MEDI- 
EVAL ENGLAND 15 (1926) ("[a] person who does not pay his debt may be said to detain something 
which does not belong to him, but he can hardly be said to 'deforce'"); 1 F. POLLOCK 4 F.W. 
MAITLAND, supra note 3, at 204-05 (noting peculiarity and explaining it: 'The bold crudity of archaic 
thought equates the repayment of an equivalent sum of money to the restitution of specific land or 
goods"); A.W.B. SIMPSON, A HISTORY OF THE COMMON LAW OF CONTRACT, THE RISE OF THE ACTION 
OF ASSUMPSIT 55-56 (1975) (noting peculiarity and concluding: "The use of the word deforciat may" 
look slightly curious in a debt writ, but again its use in all probability is not significant"). 

120. R.C. VAN CAENEGEM, supra note 86, at 437. 

121. R.L. HENRY, supra note 119, at 16. Henry first notes the anomaly posed by the formal declara- 
tion in debt litigation in the seignorial courts. There, the plaintiffs claim that the defendant "detains 
and deforces" the amount of the debt sometimes was supplemented by "against the peace of the lord." 
Id at 15. Henry theorizes that the local formula mimicked those used in the King's court, because the 
local lords, like the King, wanted to usurp the traditional jurisdiction of the hundred and county courts. 
Id at 16. 

122. See GLANVILL. supra note 68, Book X. ch. 8. at 124 ("[i]t is not the custom for the court of the 
lord king to protect or warrant private agreements of this kind concerning the giving or receiving of 
things as a gage, or other such agreements, whether made out of court or in courts other than that of the 
lord king; it follows that, if such agreements are not kept, the court of the lord king will not concern 



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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. 1 3 

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. 124 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. 25 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 Jew- 
ish 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 terminol- 
ogy to describe a private judicial proceeding for money that jeopardized pos- 
session 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, 126 approximately the time when Jewish litigation had been removed 
to the newly established Exchequer of the Jews. 127 In the seignorial courts, the 
term fell into disuse by 1291, 12 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 IEWS 

At no time during their two-century presence in England were the Jews per- 
ceived as more than a necessary evil: a source of capital. The Jews, welcomed 



itself with them, and is therefore not bound to pronounce upon the rights or privileges of the several 
prior or subsequent creditors"). 

123. R.L. HENRY, supra note 119, at 16. 

124. See supra text accompanying notes 64-65 (Jews held property ultimately for King). 

125. See H.G. RICHARDSON, supra note 11, at 84-98 (explaining method by which Jews who had 
been awarded land liquidated their interest in it). 

126. 2 F. POLLOCK 4 F.W. MAITLAND, supra note 3, at 173. 

127. See infra notes 129-48 and accompanying text (discussing Exchequer of the Jews). 

128. R.L. HENRY, supra note 119, at 15. 



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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 Jew- 
ish 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. 129 Beseiged by the mob, hundreds of the York Jews 
chose death over baptism. The warriors, joining religious hatred to their eco- 
nomic 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. 130 

Following his return from the Crusades and release from captivity, 131 Rich- 
ard 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. 132 

Archae were established in all towns with sizeable Jewish populations. The 
registries consisted of Chirograph Chests and four Chirographers — two Chris- 
tians and two Jews — and their clerks. 133 The Chirograph procedures were 
strongly reminiscent of traditional Jewish practice. 134 All bonds were to be 
formalized in the presence of the official witnesses, and immediately dupli- 
cated. 135 The original and duplicate were usually written on the same skin and 
were divided by an irregular cut, producing corresponding tallies. 136 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. 137 When 
the debtor satisfied the debt, the creditor gave the debtor a deed of acquit- 
tance. 138 The debtor could then prove satisfaction of the debt only by deliver- 



129. J.M. Rigg, supra note 13, at xvii-xviii. 

130. Id; H. MARGOLIS & G. MARX, A HISTORY OF THE JEWISH PEOPLE 384-88 (1965 reprint). M.D. 
Davis' collection of shetars includes one recording substantial debts owed by Richard Malebysse. ("out 
of the great debt which he owes to my master Aaron, and for which I gave him this writing.") In the 
Hebrew versions of the documents, his name is translated into the Hebrew for "evil beast" (khayah ra- 
ah), the literal translation of the Norman surname. M.D. DAVIS, supra note 42, at 288. This translation 
was a playful though prophetic pun by the creditor. The Hebrew phrase is used in the Book of Gene- 
sis by Jacob's sons to describe the animal they falsely claim has devoured their brother Joseph. Genesis 
37:33. This biblical passage would have been read in synagogues the same week this shetar was written. 
M.D. DAVIS, supra note 42, at 288. 

131. The government assessed the Jews 5,000 marks of the 100,000 mark ransom for the release of 
Richard I. 4 S. BARON, supra note 3, at 81-82. 

132. J.M. Rigg, supra note 13, at xviii-xix; 1 W. HOLDSWORTH, supra note 80, at 45-46. 

133. J.M. Rigg, supra note 13, at xviii-xix. Chirograph, literally "handwriting," was the term used 
for the written documents. 

134. See supra notes 34-40 and accompanying text (describing documentary procedure of shetar). 

135. J.M. Rigg, supra note 13, at xix. 

136. See generally STARRS AND CHARTERS, supra note 42 (photographic plates of bonds, showing 
irregular cut). 

137. J.M. RIGG, supra note 13, at xix. 

138. Id The acquittance frequently was written on the back of the original bond of debt. 1 STARRS 
AND CHARTERS, supra note 42, at xiv-xv. 



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ing the acquittance to the Archa, for which he obtained the pes, which 
cancelled the debt. 139 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. 140 

The King's Exchequer oversaw the King's accounts. A contemporary trea- 
tise described its organization and duties: the "Dialogue of the Exchequer." 141 
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. 142 Beginning in 1198, "Custodes Judaeorum," or "Wardens of 
the Jews," were appointed, 143 subordinate to the Exchequer. 144 The Custodes 
Judaeorum were the first Justices of the Jews. They exercised exclusive juris- 
diction over all matters involving Jews and Christians, except those in which 
the Jew was criminally accused. 145 During the thirteenth century they were 
charged with enforcing the shetars of the Jews. 146 This special branch of the 
Exchequer could effectively ascertain the amounts due the King's treasury via 
the King's Jews. 147 

The Chirograph Chests preserved the bonds of debt and the deeds of acquit- 
tance, and the Archae preserved the Chirograph Chests. 148 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 satis- 
faction 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 for- 
malism and alien law, inter-religious suspicions, and everyday venality. 
Within the pleas of the Exchequer of the Jews, the appearances of one recur- 



139. J.M. Rigg, supra note 13, at xix. 

140. 1 W. Holdsworth, supra note 80, at 45. By 1240, the system had changed: the sealed bond 
was kept in the Archa. and copies were given to both the creditor and the debtor. 1 Starrs AND 
CHARTERS, supra note 42. at xv. 

141. DIALOGUS DE SCACCARIO, supra note 68. The unknown author of the 12th century (ca. 1176) 
"dialogue" describes the exchequer board, a table covered with a checkered cloth, from which the court 
derived its name. The members of the court sat around an oblong table, ruled off into squares to 
facilitate a system of accounting (described in detail in the "Dialogus") used to determine debts owed to 
the King. Id at xxxv-xxxix. 6-7; see also 1 F. Pollock & F.W. MAITLAND. supra note 3, at 191-92 
(describing Exchequer as compound institution: judicial tribunal and financial bureau). 

142. J.M. Rigg, supra note 13, at xx. 

143. Id Of the original four "wardens," Simon de Patesbull, Henry de Wichenton, Benedict de 
Talemunt, and Joseph Aaron, the latter two were Jews. Id 

144. 1 W. HOLDSWORTH. supra note 80, at 45-46. The Barons of the Exchequer could annul the 
judgments of the Custodes Judaeorum. Id 

145. See Id at 46 (cases in which Jews accused of crimes found among Crown Pleas). 

146. See generally J.M. Rigg, supra note 13, at 3-134 (a collection of pleas before the Exchequer of 
the Jews from 1220 to 1285). 

147. See id at xx (King could order scrutiny of Archae to determine financial position of Jews; when 
done, Archae closed under triple lock and seal and all business suspended). 

148. Id at xix. 



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rent litigant, Cok Hagin, 149 sometime Chief Rabbi, 150 serve as an exemplar of 
the cultural contact between Jew and Christian. Cok's changing fortunes illus- 
trate 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 immedi- 
ately, 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 sure- 
ties. If he defaulted, they, equally with him, would be subject to distraint of 
their lands, debts owing, chattels, and their bodies. 151 

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. 52 Later that year, the court noted that the appointed 
date had passed without payment of tallage or penalty. The penalty was as- 
sessed and paid. 153 

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, 154 — le aving blank the amount due until after the debtor had signed. 
Additionally, Bundy was charged with having lived, for some time, in Ray- 
leigh without the King's license. For this offense all Bundy's goods and chat- 
tels were forfeit to the Crown. When Bundy failed to appear for his appointed 
court date, the court found Cok Hagin and his co-surety "in mercy." 56 

In 1275, the King notified his Justices that he had granted all of Cok Hagin's 
possessions as gifts to his "dearest Consort, Eleanor, Queen of England." She 
was 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 sub- 
mit to trial "according to the Law and Custom of the Jewry.'" 57 Edward con- 



149. "Cok Hagin" is an English corruption of the Hebrew name Yitzhak Hayim. C. ROTH, ESSAYS 

AND PORTRAITS IN ANGLO- JEWISH HISTORY 24 (1962); C. ROTH, HISTORY OF THE JEWS IN ENGLAND 

93-94(1941). 

150. J.M. RIGG, supra note 13, at 119 n.l. 

151. Id at 67-68. Here, not only the principal, but also his sureties are subject to real actions arising 
out of a personal obligation. 

152. Id at 77. 

153. Id at 77. 

154. Id at 82. 

155. Id at 82 n.l. 

156. Id at 82-83. "In mercy" means subject to fine or punishment at the discretion of the court. 
BLACK'S LAW DICTIONARY 708 (rev. 5th ed. 1979). 

157. Id at 87-88. The offense, apparently, is one "against his Law," indicating that the Jew had 
transgressed against Jewish doctrine rather than against a secular command. Id Other sources report 
that Cok Hagin was, at the time, on the losing side of a power struggle within the Jewish Community. 
C. ROTH, ESSAYS AND PORTRAITS IN ANGLO-JEWISH HISTORY, supra note 149, at 25. 

In their own religious courts, Jews were subject to penalties of excommunication for violation of 
Jewish law. Religious courts operated independently of the Crown, whose control began only when the 
defendant was ejected from the protection of his community and formal social position. The excommu- 
nicate Jew or the Jew who converted forfeited his goods to the King. See J.M. Rigg, supra note 13, at 
87-88, 96 (excommunicated Jew); Id at 99-100 (converted Jew). On leaving his community, a Jew 



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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." 158 

By 1282, in the tenth year of Edward's reign, Cok was again doing busi- 
ness. 15 ' In that term, Cok summoned Roger de Ling to answer for the princi- 
pal and interest owed on a debt represented by one Chirograph, sworn to be 
duplicated in the London Chirograph Chest. 1 0 In the same year, Cok's real 
estate deals apparently proliferated. In return for a fee interest in a plot of 
land and a house in London, he exchanged a nine-year term on a farm in 
Essex in which he had a liveried interest. 161 The farm had been obtained "on 
account of divers debts" of the former owner, a knight. 162 The prior agree- 
ment, 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." 16 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 acknowledge- 
ment to Cok Hagin's document. 164 

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 acquittance 
of 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 con- 
sent," they discharged the debt as fully paid. 65 

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 



abandoned the role of holding goods for the ultimate use of the King. See id at 61 (goods forfeited by 
Jew living without King's license, outside Jewish community). The King would have been eager to 
encourage enforcement of Jewish law, at least to the extent of seizing the goods of those 
excommunicated. 

158. J.M. RIGG, supra note 13, at 87. 

159. The Queen had encouraged the King to confirm Cok Hagin's election as Chief Rabbi in 1281. 
Id at 119 n.l. His excommunication apparently had been temporary. 

160. Id at 117. 

161. Id at 118-20. By a royal edict of 1271, Jews were forbidden to own land. See Mandatum Regis 
Super Terris et Feodis Judaeorum in Anglia. Anno Regni Regis Henrici Quinquagesimo Quinto )Man- 
date of the King Touching Land and Fees of Jews in England. The Fifty-fifth Year of the Reign of 
King Henry) [A.D. \21 \\printed in J.M. RIGG, supra note 13, at 1-lv (mandate of Henry III prohibiting 
Jews to have "freehold in manors, lands, tenements, fees, rents or tenures of any kind whatsoever by 
charter, grant, feoffment, confirmation, or any kind of obligation, or in any other manner," but permit- 
ting Jews to dwell in houses in the city). Despite this prohibition, the exchequer record clearly states 
that Cok Hagin had taken the land "by livery — i.e., by livery of seisin, a form of land tenure denied 
the Jews by the preceding edict. Perhaps this was possible through some direct intervention of the 
Queen or because he held in her name only. 

162. J.M. Rigg. supra note 13, at 118. 

163. Id at 120. It IS doubtful that Cok here submitted to knight service, per se, but he likely assumed 
all taxes (including scutage fees) assessed on the property. Cf. id at xiii (Jew could not swear homage 
or fealty, which were necessary duties of freeholder in feudal system). 

164. J.M. RIGG. supra note 13, at 118-20. Cok Hagin was apparently the Queen's chattel. She, not 
the King, would have power to affirm or deny his actions. 

165. Id at 133-34. 



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and acquittance, and a royal conveyance whereby his goods and, arguably, he 
himself were granted to the Queen. The Exchequer enforced the law "accord- 
ing 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 every- 
day litigation in the King's courts. 



IV. CONCLUSION: THE EXODUS AND WHAT THE JEWS LEFT BEHIND 




Ruling during an era of socio-economic change 
(1272-1307), Edward was wont to legislate accord- 
ingly. And Edward was weary of the Jews. 166 Thus he 
issued laws forbidding the Jews from holding real 
property, denying them usurious practice, and order- 
ing them to wear distinctive dress and identifying 
badges. 167 

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 royal 
usurers. In the Statute of Merchants of 1285, 168 Ed- 
ward extended to creditors the forms of registry, rem- 
edy, and enforcement that had previously been the 
substance of the Exchequer of the Jews. 16 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 hand- 
writing, 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. 170 

More than the enrollment procedures paralleled the structures of the Ex- 
chequer of the Jews. The remedies also extended to Christian creditors the 
relief formerly available only to Jews. 171 No longer was a Christian creditor's 



Interdicta est iudeis 
licentia usurandi - 
Illustration of Jew wearing 
badge required by 
1275 Statute forbidding 
Jews the practice of usury. 
(MS British Museum) 



166. See T. TOUT. EDWARD THE FIRST 161 (1909) ("Edward disliked the Jews both on religious and 
economical grounds"). 

167. Id. at 160-62. Edward was following Henry Ill's precedent, issuing special restrictions for Jews. 
See J.M. Rigg. supra note 13 at xlvtii-lxi (provisions of Henry III and Edward I). Additionally, Ed- 
ward's Statutes of Jewry of 1275, see supra note 28 (dating statute), denied legal process for the recovery 
of interest and limited execution on the principal due to one-half of the debtor's land and chattels. J.M. 
RIGG. supra, at xxxviii. English practice no longer required Jewish jurors in cases involving Christians 
and Jews. Articles Touching the Jewry (undated statute of Edward I, which internal evidence indicates 
was issued after 1284) printed in J.M. RIGG, supra, at liv, xli. 

168. Statute of Merchants, 1285, 13 Edw., Stat. 3. The Statute of Acton Burnel, 1283, 11 Edw., which 
was enacted two yean before the Statute of Merchants, had been intended to establish a speedy remedy 
for merchant creditors. Because the sheriffs had failed to apply the statute correctly, the Statute of 
Merchants of 1285 re-enacted and expanded its provisions. 1 A.W. RENTON, ENCYCLOPAEDIA OF THE 
LAWS OF ENGLAND 116 (1897). 

169. Statute of Merchants. 1285, 13 Edw., Stat. 3. 

170. Id. 

171. See supra text accompanying notes 97-109 (comparing remedy available to Jewish creditor 
under shetar with remedy available to Christian creditor under early common law). In the same year 
that the Statute of Merchants was enacted, a Christian creditor, for the first tune in English law, was 



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1199 



relief before judgment limited by the debtor's absence. If the Christian credi- 
tor presented to the Mayor a matured, acknowledged debt instrument corre- 
sponding to an enrolled debt, he had established full right to relief. 172 If the 
debtor did not pay, the creditor eventually obtained access to the debtor's 
lands, 173 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. 174 The Statute of Merchants expressly allowed merchants 
"damages, and all necessary and reasonable costs in their labors, suits, delays, 
and expenses," 175 the same label that disguised otherwise usurious interest in 
Jewish contracts. 176 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. 177 The new law expressly excluded Jews. 78 

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. 179 No longer were 
the Jews the unique source of credit in England. 180 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 aliena- 
tion of the property. 

In addition to the property that escheated to the King on their departure, 181 
the Jews left behind a law of debtors and creditors developed in the Talmud, 



permitted to elect his remedy. Pollock and Maitland trace the writ of elegit (election of remedies) to the 
adoption by the Second Statutes of Westminster, 1285, 13 Edw., Stat. 1, ch. 18, of the remedy formerly 
available only to Jewish creditors. 1 F. POLLOCK A F.W. MAITLAND, supra note 3. at 475. The election 
was between a writ of fieri facias and transfer of the debtor's property to the creditor. Second Statutes 
of Westminster, 1285, 13 Edw., Stat. 1, ch. 18. 

The Statutes of Westminster introduced another innovation: where before, judgment in debt could be 
executed only from the debtor's chattels and the fruits of his lands. A.W.B. SIMPSON, supra note 119, at 
87, now only one half of the debtor's land and his "Oxen and Beasts of the Plough" were immune from 
execution. Second Statutes of Westminster, 1285, 13 Edw., Stat. 1, ch. 18. 

172. Statute of Merchants, 1285, 13 Edw., Stat 3. See also A.W.B. SIMPSON, supra note 119, at 127- 
28 (describing creditor's procedure for relief under Statute of Merchants). 

173. See Statute of Merchants, 1285, 13 Edw., Stat. 3 (upon creditor's presentation of debt instru- 
ment to Mayor, debtor arrested and imprisoned; if he has not paid within three months, he is enabled to 
sell his lands or chattels to satisfy the debt; if he still has not paid in another three months, a reasonable 
portion of his lands and chattels are delivered to the creditor to hold as security against ultimate repay- 
ment or until the debt is satisfied out of their proceeds). See also A.W.B. SIMPSON, supra note 119, at 
127-28 (same). 

174. Statute of Merchants, 1285, 13 Edw., Stat 3; cf. text accompanying note 102 (same remedy had 
been denied ejected creditor who had held by gage). 

175. Statute of Merchants, 1285,13 Edw., Stat. 3 (translation from 1 STATUTES OF THE REALM, supra 
note 28, at 100 n.4) 

176. See J.M. Rigg, supra note 13, at xxxviii-xxxix (although Statutes of Jewry prohibited their 
usurious practices, Jewish creditors concealed interest charges as expenses of recovery or penalties for 
defaults on installments). 

177. Statute of Merchants, 1285, 13 Edw., Stat 3. At fairs, the cost was one and one-half pennies per 
pound. Id 

178. Id 

179. See 10 S. BARON, supra note 3, at 109 (in 1271, the Jews were unable to raise a 6.000 mark 
tallage imposed for Prince Edward's Crusade). 

180. Id at 109-13. As Jewish revenues dropped, Edward borrowed from Italian and Cahorsin 
merchants. Id at 113. 

181. Id at 114. Edward allowed the Jews to take their movable property. T. TOUT, supra note 166, 
at 162. 



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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 con- 
tinued to be dischargeable only by a deed of release or by cancellation or de- 
struction of the debt instrument. 182 The practice of debt cancellation by 
requiring return of the pes of the chirograph continued from 1 194 until its 
abolition by statute in 1833. 183 

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 immova- 
ble." 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. 

Judith A. Shapiro 



182. A. KIRALFY, THE ENGLISH LEGAL SYSTEM 53 (6th ed. 1978); C.H.S. FIFOOT, HISTORY AND 
SOURCES OF THE COMMON LAW 231-33 (reprint 1970). 

183. F. LINCOLN, supra note 13, at 136-38. See supra text accompanying notes 137-39 (describing 
documentary procedure of Archa, under which pes was returned to debtor by Archa when debt was 



184. J. RABINOWTTZ, supra note 4, at 254-55. Some bonds further mimicked the shetar, extending 
the lien to all goods "present and future." Id 

https://archive.org/stream/pdfy-AxcuxNfzg1UDm2Da/The%20Shetar%20how-jewish-law-became-english-law_djvu.txt