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The Jew as Chattel in medieval Europe.

WHEN ROMAN LAW WAS SUPPLANTED BY CATHOLIC Canon law the Jews lost their right to practice their religion as citizens but not legal autonomy. At the start of the Middle Ages, when the pagans took over the western provinces of the Roman Empire, now the countries of Western Europe, they regarded the Roman citizens as strangers. As these pagans converted to Christianity, the two groups fused: but the Jews still remained distinct, the result being that they were still considered strangers without losing the traditional right to regulate their own communities. (1)

According to Germanic custom, which was tribal in concept, a stranger was considered a person without a master and as such enjoyed no rights. The normal procedure was for the stranger to seek protection by paying a tax to the chief ruler of the area which he entered. The stranger then lived under this protection and an attack on him was considered an attack on his protector.

This custom was adequate for pilgrims or transient merchants but obviously did not fit the odd situation of two resident communities--Jew and gentile--living side by side for generations but governed by different rules. The first rather clumsy attempt to deal with this problem was the issuance of residence permits with commercial rights, somewhat similar to passports. We have historical proof of this from the writings of Archbishop Agobard of Lyons (779-840), who attacked the practice in hatred of the Jews. One of his letters complained to Louis the Pious, Charlemagne's son, that the governor of the province was protecting the Jews from his attacks. However, such Jewish privileges were based neither on generosity nor a changed view of the "stranger," but rather for the profit of rulers. It was only through express permission, which had to be paid for, that the status of a stranger was suspended.

A new problem was introduced by the Crusaders when it became evident that the Jew needed protection neither as a transient nor as a resident but rather as a non-Christian subject from the fanaticism of Christian mobs. A temporary solution was found in the General Peace accepted by the different powers within the Holy Roman Empire in 1103, wherein the Jews were classed with women and clergy as people subject to protection because they could not protect themselves.

All these diverse ideas were tied together in the later medieval definition of Jewish status as "servitudo camerae" sometimes "servi camerae," "serfs of the chamber [treasury]," somewhat akin to the position of the villein in feudal structure, that is, having security through custom, subject however to his ruler's will. In the rather optimistic view of Meir son of Baruch of Rothenburg (the Maharam, 1220-1293), this means that the "Jews are not bound to any particular place as gentiles are; for they are regarded as impoverished freemen who have not been sold into slavery; the government attitude is according to this." (3) Perhaps the general Jewish view that "the law of the government is law" best expressed the fact that one had to survive under different legal and political structures, hoping that benevolence at best and bribery as a norm would lessen the worst effects of such a system of values.

Charters granting some security to Jews were the privilege of individual overlords. This created diverse and often conflicting charters--a principal source of misery to the Jews--for some were granted by kings or emperors, some by clerical or secular princes, and some by cities. In many cases these overlapped. The Jewish community of Regensburg, for example, fell under the jurisdiction of three authorities, the Holy Roman emperor, the Bavarian duke, and the municipality: as we shall see, this was the reason for its destruction.

The situation in the south of Europe was not quite the same as in the north, for the Jewish communities had been established there since Roman times, the main difference with their neighbors being religion; and it was only toward the very end of the Middle Ages (sometimes even against the wishes both of the local population and the gentry) when they were destroyed or expelled by mandate from above. In northern Europe, however, Jewish communities were often artificial in the sense that Jewries were deliberately introduced, expelled, and then reintroduced, for the sole purpose of usury to benefit the overlord: the Jew thus was a sponge through which the Christian ruler sucked up money and then, after squeezing the sponge dry, threw it away. Starting in the thirteenth century and most common in the fourteenth century, those communities became pawns in the hands of lords, churchmen, and city burghers, who vied with one another for the profits from Jewish usury, usually ranging from ten percent and more of their total income. The Jews were forced to charge higher interest rates, and then still higher, in order to pay the crushing taxes: indeed, in some cases Jewish communities were deliberately encouraged to increase these rates to feed their overlords.

The inevitable result was that the granting of Jewish resident charters became mere speculations and when they were wrung out, the Jews were expelled. (4) As is obvious, the gentile population, plucked clean by this usury, had even less love for their oppressors than did the overlords using them. Since by the late Middle Ages certain powerful Christian families--Italians and those from southern France called the "pope's usurers"--already controlled commercial loans, the ill-will was heightened. The strong residue of this hatred in Germany was a factor in the coming to power of a man like Adolf Hitler many centuries later.

The underlying tragedy involved in the granting of these charters, aside from their limited nature, was that they could be modified or revoked at the caprice of the overlord, for in both the theory and practice of medieval law the Jew was without fixed rights. In what might almost be considered a prologue to a Zionist tract of the late nineteenth century, a charter of John II of France in 1361 stated: "They have not country nor one single place in all Christianity where they can live, frequent and dwell, and it is only by the pure and singular license of the Seigneur or Seigneurs who desire to bear them as subjects that they will be gathered and received." (5) His predecessor Saint Louis put the matter more bluntly in his Statutes: "The Jew has nothing of his own and what he acquired, it is the king who acquires." (6) It thus became the custom for the Jews themselves and their property to be transferred as chattel.

Different practices developed in various countries. In England the kings pawned Jews but never surrendered to others authority over them. Henry II, for example, sold "his Jews" to his brother Richard, but never to the lesser nobility. Edward I and Henry III went so far as to give away property of Jews without bothering to inform them; while fighting in Gascony, Henry II would often write home to the justices of the Jews to inform them that he had canceled a debt, half a debt, the interest on another, etc. The situation became so fraught with danger that in 1254 the English Jews begged for permission to leave the country. Henry III refused, still hoping to wring from them more money and threatening with awful consequences anyone who tried to escape.

In France the Jews might belong to the king or the barons. If it were not for the fact that human beings were involved, one would be amused at the terms of early French treaties between the kings and their barons. What stands out from the background is how each is trying to steal the others' Jews and their property.

Under the Holy Roman Empire the emperor claimed an unconditional right over the Jews but often surrendered this right as part of the power politics involved among the various bodies within the empire. This sometimes degenerated into a farce with results more or less vicious depending on the circumstances. In the late thirteenth century, when Albert of Hapsburg was fighting with Adolf of Nassau as to which would be the emperor, the property and loans outstanding of Jews killed in the riots attending this struggle were a key in Albert's victory and consolidation of power. Emperor Charles IV in 1349 gave the archbishop of Trier (Treves) the goods of Jews "who have already been killed or may still be killed"; in the same year he offered the Margrave of Brandenburg the choice of the three best houses in Nuremberg "when there is next a massacre of Jews there." (7) Perhaps the most extreme position was taken by Margrave Albert III Achilles of Brandenburg who in 1463 declared that each new Holy Roman Emperor had the right to burn the Jews on his accession, to expel them, or to take a third of their property--and as the emperor's emissary he graciously chose the third alternative.

The insecurity created by such a legal system, if so it may be called, can barely be imagined by persons raised in a modern state where all inhabitants have equal protection under the law. This insecurity explains both the frantic scramble of Jews to survive in such a hostile environment and also certain personality traits ascribed to them by persons who see the end product of this psychological perversion without understanding its causes.

The fight over who would own the Jews became even more ferocious because it also involved control over lawsuits as well as over the licensing authority. In a system where the money income came from usury, lawsuits were common and the punishment meted out through fines was most lucrative. In Jewish affairs, new and more ingenious systems of licensing were invented to bilk the helpless victims: fees were charged for loan registering, trade licensing, marrying and abstaining from marrying, changing residence, burying the dead, even the birth of children and obtaining of servants. After quittances involving debt payments, perhaps the next largest number of documents involving Jews were concerned with buying defense against outrageous fees and licensing.

It should be emphasized as well that protection for Jews against church fanaticism or mob violence involved compensation to the royal purse and not to the injured Jews. Henry IV fined the Rhineland towns after the 1096 massacres, but the money went to him and not to rebuilding the shattered Jewish communities. After the savage religious fanaticism in Spain in 1391 almost destroyed Spanish Jewry, the royal fines imposed against the Christian population were taken by the king as recoupment for his losses because the remaining Jews were too impoverished to pay their taxes. The absolute powerless nature of the Jewish position may be summarized: "There was no custom, no tradition to which they could refer, as could the villeins or tenants, in the care of an autocratic master. Their owner could allow them to settle or reject them; could suddenly decide to alter the conditions of their residence, could as suddenly uproot them from one town and send them to another; or, if he so willed, expel them at a few days' notice from their dominions, or even kill them." (8) History indeed records that several times, by prearrangement throughout certain cities of England and provinces of Germany, as well as the entire realm of France, on a set day (which was kept strictly secret beforehand) the Jews in their entirety were seized, their papers confiscated, a plague of commissioners was sent down to survey their operations, dig up their cellars and threaten their Christian friends with excommunication if withholding money or information; and then the Jews were expelled as an entire community after being pressed dry, with a blanket cancellation of their outstanding debts.

The official attitude of the Church throughout this development, though deploring violence, was that the Jews must be kept in a condition of servitude as a deicide people; and certainly the creation and enforcement of various decrees involving the humiliating badge, the restriction to what were later called ghettos, and most especially the exclusion from many trades (9) aided in Jewish degradation. The final formal imprimatur of such actions was given by Saint Thomas Aquinas, who solemnly wrote that the Jew was legally a slave and that the Church, kings and princes could regard Jewish possessions as their own property (10)--thus wedding Canon law to Germanic custom. The basic problem was already seen in one of the prophetic letters of Bernard of Clairvaux, who instituted the Second Crusade but tried to protect the Jews at the same time: "They [the Jews] are for us like a living document recording the passion of our master. They are thus scattered all over the world, so that they may be witnesses to our redemption while they suffer the just punishment of such a deed." (11) As Wolfgang S. Seiferth comments in Synagogue and Church in the Middle Ages, "The Old Testament was restricted to its theological significance, which no longer cast any light on the lives of the Jews. They ceased to be 'descendants of the patriarchs and prophets' and were regarded as the 'murderers of Christ.'" (12)

The sole protection that individual Jews or Jewish communities could obtain was through money. This was called bribery and the legend rose, and persisted throughout the Middle Ages, that whenever a ruler offered the Jews some measure of security--whether the popes, kings, bishops, or barons--it was due to bribery. There is however in this condemnation a fault, for an important distinction exists between that bribery committed to escape the consequence of an illegal act and bribery committed merely to ensure physical survival. The latter type of bribery, permitting the right to exist in some degree of security, thus became almost common practice. Jews had to pay to obtain the right of settlement, to secure protection against mob violence and religious fanaticism, and even to avoid the result of accusations deliberately created to force them to yield more money. This was so accepted as normal custom that a Hebrew chronicler recorded with wonder that the aforementioned Bernard of Clairvaux actually tried to protect the Jews of France without being bribed. (13)

The poisoned seeds of this historic past in many ethnic, religious, and national groups are still with us today, actively or in temporary lull.

NOTES

1. In the view of H. H. Ben-Sasson, the roots of autonomous Jewish life conceded in Christian Europe went back to the ancient right given by Hellenistic kings to Jewish communities in the Diaspora "to live according to the Laws of the Fathers." H. H. Ben-Sasson, "The 'Northern' European Jewish Community and its Ideals," in "Jewish Society Through the Ages, edited by Ben Sasson and S. Ettinger (New York: Schocken Books, 1971), p. 209.

2. Wolfgang S. Seiferth, Synagogue and Church in the Middle Ages: Two Symbols in Art and Literature, translated by Lee Chadeayne and Paul Gottwald (New York: Ungar, 1970), p. 61; James Parkes lists the texts issued by Agobard. James Parkes, The Jew in the Medieval Community, 2nd ed. (New York: Hermon Press, 1976), p. 21.

3. See Shohet for the numerous decisions made on "The Law of the Land" by Maharam. A detailed description of the Jew as Chattel is reviewed on pages 13-15. David Menahem Shohet, The Jewish court in the Middle Ages: Studies in Jewish Jurisprudence According to the Talmud, Geonic and Medieval German Responsa (New York: Commanday-Roth Co., 1931).

4. In the years before the Black Death (1348-1350), there were exceptions in certain German urban centers. For example, at Cologne on the Rhine and Straubing in Bavaria, Jews were defined as "free inhabitants." In Frankfort on the Main, their names were entered on the city register exactly as Christians. The most striking is Worms, where Jews were repeatedly designated as citizens by both the bishop and the city council and had plenary rights except the right to vote or run for public municipal office.

Even in Spain, however, where the Jewish position was more secure before the extensive riots and killings of 1391, the judicial position in theory--though often not in practice--was similar to that of northern countries.

5. Parkes, introductory pages (author's translation).

6. Louis IX, Statutes.

7. Parkes, p. 118.

8. Parkes, p. 149.

9. The Fourth Lateran Council of 1215 prepared the way for the downfall of Jewish communities throughout Europe. It forbade Jews to practice Christian occupations, thus forcing them into isolation from Christian society.

10. Summa Theologica, Pars secunda secundae [part II, second section], quaest. X, art. 10.

11. Seiferth, p. 74.

12. Seiferth, p. 73.

13. Parkes, pp. 84, 152.

DANIEL M. FRIEDENBERG is Curator Emeritus of Coins and Medals at the Jewish Museum, New York City. He has written extensively on seals, including his book, Medieval Jewish Seals from Europe (1987). His article, "Early Jewish History in Italy," appeared in the Winter 2000 issue. This essay responds to Mel Gibson's film by discussing the antisemitic tradition it perpetuates.
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Author:Friedenberg, Daniel M.
Publication:Judaism: A Quarterly Journal of Jewish Life and Thought
Geographic Code:4E
Date:Jan 1, 2004
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