The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to Second Edition.
• From Preface to First Edition.
• Historical Introduction
• Part I.: Events Leading to Magna Carta.
• Part II.: Feudal Grievances and Magna Carta.
• Part III.: Magna Carta: Its Form and Contents.
• Part IV.: Historical Sequel to Magna Carta.
• Part V.: Magna Carta: Original Versions, Printed Editions and Commentaries.
• Text, Translation, and Commentary
• Preamble.1
• Chapter One.
• Chapter Two.
• Chapter Three.
• Chapter Four.
• Chapter Five.
• Chapter Six.
• Chapter Seven.
• Chapter Eight.
• Chapter Nine.
• Chapter Ten.
• Chapter Eleven.
• Chapter Twelve.
• Chapter Thirteen.
• Chapter Fourteen.
• Chapter Fifteen.
• Chapter Sixteen.
• Chapter Seventeen.
• Chapter Eighteen.
• Chapter Nineteen.
• Chapter Twenty.
• Chapter Twenty–one.
• Chapter Twenty–two.
• Chapter Twenty–three.
• Chapter Twenty–four.
• Chapter Twenty–five.
• Chapter Twenty–six.
• Chapter Twenty–seven.
• Chapter Twenty–eight.
• Chapter Twenty–nine.
• Chapter Thirty.
• Chapter Thirty–one.
• Chapter Thirty–two.
• Chapter Thirty–three.
• Chapter Thirty–four.
• Chapter Thirty–five.
• Chapter Thirty–six.
• Chapter Thirty–seven.
• Chapter Thirty–eight.
• Chapter Thirty–nine.
• Chapter Forty.
• Chapter Forty–one.
• Chapter Forty–two.
• Chapter Forty–three.
• Chapter Forty–four.
• Chapter Forty–five.
• Chapter Forty–six.
• Chapter Forty–seven.
• Chapter Forty–eight.
• Chapter Forty–nine.
• Chapter Fifty.
• Chapter Fifty–one.
• Chapter Fifty–two.
• Chapter Fifty–three.
• Chapter Fifty–four.
• Chapter Fifty–five.
• Chapter Fifty–six.
• Chapter Fifty–seven.
• Chapter Fifty–eight.
• Chapter Fifty–nine.
• Chapter Sixty.
• Chapter Sixty–one.
• Chapter Sixty–two.
• Chapter Sixty–three.
• Appendix. Documents Relative To, Or Illustrative Of, Magna Carta.
• I.: The Charter of Liberties of Henry I.1 (1100.)
• II.: The Second Or Oxford Charter of Stephen.1 (1136.)
• III.: Charter of Henry II.1 (circa 1154.)
• IV.: The So–called “unknown Charter of Liberties” of John.2 (circa 1214–1215.)
• V.: The Articles of the Barons.1 (1215.)
• VI.: Writs Supplementary of John’s Great Charter.
• VII.: The Great Charter of Henry III.2 (third Reissue, 11th February, 1225.)
• VIII.: Carta De Foresta.1 (6 November, 1217.)

CHAPTER TEN.

Si quis mutuo ceperit aliquid a Judeis, plus vel minus, et moriatur antequam illud solvatur, debitum non usuret quamdiu heres fuerit infra etatem, de quocumque teneat; et si debitum illud inciderit in manus nostras, nos non capiemus nisi catallum contentum in carta.

If one who has borrowed from the Jews any sum, great or small, die before that loan be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold;1 and if the debt fall into our hands, we will not take anything except the principal sum2 contained in the bond.

Usury, denied by law to Christians, was carried on by Jews under disadvantages and risks. The rates of interest were proportionately high, ranging in normal cases from two to four pence per pound per week; that is, from 43⅓ to 86⅔ per cent. per annum.3 During his nonage a ward had nothing wherewith to discharge either principal or interest, since he who had the wardship drew the revenue. At the end of a long minority, an heir would have found the richest estates swallowed up by a debt which had increased automatically ten or twenty–fold.4

Magna Carta prevented this injustice to the ward; but, in doing so, inflicted some injustice on the money–lenders. During the minority no interest at all, it was provided, should accrue to Jew or other usurer; while, if the debt passed to the Crown, the King must not use his prerogative to extort more than a private debtor might; he must confine himself to the principal sum specified in the document of debt. The provision that no interest should run during minorities was confirmed by the Statute of Merton,1 which made it clear, however, that its provisions should not operate to discharge the principal sum or interest accrued before the ancestor’s death. The Statute of Jewry, of uncertain date,2 made interest irrecoverable by legal process. All previous acts against usury were repealed by the statute 37 Henry VIII. c. 9, which, however, forbade the exaction of interest at a higher rate than 10 per cent., and this remained the legal rate until reduced to 8 per cent. by 21 James I. c. 17.

I.

The History of the Jews in England.

In the policy of the Crown towards aliens of the Hebrew race, three periods may be distinguished. From the Norman Conquest to the coronation of Richard I., the Jews were fleeced and tolerated; during the reigns of Richard and John and the minority of Henry III., they were fleeced and protected; and finally they were fleeced and persecuted, this last stage ending with the ordinance of 1290, which banished Jews from England. The details of this long story of hardship and oppression, tempered fitfully by royal clemency, can be only glanced at here. There were Jews in England before the Norman Conquest; but the first great influx came in the reign of Rufus, whose financial genius recognized in them an instrument for his gain, and who would the more gladly protect them, as likely to prove a thorn in the side of his enemy the Church. A new immigration led to the disarming of Jews in 1181, a measure which left them at the mercy of the Christian rabble.

When a disturbance occurred at the coronation of Richard I., on 3rd September, 1189, a general massacre took place in London. York and other towns were not slow to follow this example. The King was moved to anger, not so much by the sufferings of the Jews, as by the destruction of their bonds; for the more the Jews had, the more could be extorted from them. Richard, returning from captivity a few years later, in urgent need of money, determined to prevent a repetition of such interference with a valuable source of revenue. His motive was selfish, but that was no reason why the Israelites should not pay for a measure designed for their own protection. Assembled at Nottingham, they granted a liberal aid, in return for a new expedient devised to secure their bonds. This scheme,1 for the details of which Richard was probably indebted to the genius of his great justiciar, Archbishop Hubert Walter, was of a comprehensive and practical character. In London, York, and other important cities, offices or bureaus were established under the Crown’s protection, containing treasure chests, called archae, fitted with triple locks, to be opened in presence of custodians, known as chirographers, who kept the keys. These were four in number, two Christians and two Jews, chosen by juries summoned for that purpose by the sheriff; and they were obliged to find sureties. Only in their presence could loans be validly contracted between Jews and Christians; and it was their duty to see such bargains reduced to writing in duplicate copies. No contract was binding unless a written copy or chirograph had been preserved in one or other of those repositories or arks, which thus served every purpose of a modern register, and other purposes as well. If the money–lender suffered violence and was robbed of his copy of the bond, the debtor was still held to his obligations by the duplicate which remained. If the Jew and all his relatives were slain, even then the debtor did not escape, but was confronted by a new and more powerful creditor, the King himself, armed with the chirograph. Lists of transactions were preserved, and all acquittances and assignments of debts, known from their Hebrew name as “starrs,” had to be carefully enrolled.2 Stringent rules, codified by Hubert Walter, were issued to the judges when starting on their circuit in September, 1194.3

If this cunningly–devised system prevented the Christian debtor from evading his obligations, it also placed the Jewish creditor completely at the mercy of the Crown; for the exact wealth of every Jew could be accurately gauged from a scrutiny of the contents of the archae. The King’s officials knew, to a penny, how much it was possible to wring from the coffers of the Jews, whose bonds, moreover, could be conveniently attached until they paid the tallage demanded. The custom of fixing on royal castles as the places for keeping these arks, probably explains the origin of the special jurisdiction exercised over Jews by King’s constables (“qui turres nostras custodierunt”).1 In their dungeons, horrible engines were at hand for enforcing obedience. Such jurisdiction, however, extended legitimately over trivial debts only.2 Important pleas were reserved for the officials of the exchequer of the Jews, a special government department, which controlled and regulated the whole procedure. Evidences of the existence of this separate exchequer have been traced back to 1198, although no record has been found of a date prior to 1218.3 John, while despising the Jews, protected their wealth as a reservoir from which he might draw in time of need. Thus, by a charter dated 10th April, 1201, he took 4000 marks for confirming their privileges; and he obtained a similar amount after his rupture with Rome. The charter of 1201 was only a confirmation of rights already enjoyed by English Jews in virtue of the liberal interpretation put upon the terms of an earlier charter, granted by Henry I. to a particular father in Israel and his household, but subsequently extended, with the tacit concurrence of the Crown, to the whole Hebrew race. Under John’s charter they enjoyed valuable and definite privileges, which exempted them from all jurisdictions except those of the King’s justices and castellans.4

When a repetition of the massacres that had disgraced his brother’s coronation was threatened in 1203, John promptly ordered the mayor of London to suppress all such attempts: his promise of protection, “even though granted to a dog,” must be held inviolate.1 Protection was accorded, however, only that they might furnish a richer booty when the occasion came: suddenly John issued orders for a wholesale arrest of Jews throughout England. The most wealthy members of their community were brought together at Bristol, and, on 1st November, 1210, compelled to give reluctant consent to a tallage of the enormous sum of 66,000 marks. This amount had been fixed as the result of an exaggerated estimate of the contents of the archae, and was more than they could pay. The methods adopted by John’s castellans to extort arrears are well known, especially the case of the unfortunate Jew of Bristol, from whom seven teeth were extracted, one each day, until he consented to pay the sum demanded.2

It was doubly hard that the race thus plundered and tortured by the King should be subjected to harsh treatment by the King’s enemies on the ground that they were pampered protégés of the Crown. Yet such was the case: on Sunday, 17th May, 1215, when the insurgents on their way to Runnymede entered London, they robbed and murdered Jews, using the stones of their houses to fortify the city walls.3 It is not to be wondered, then, that the same insurgents, in forcing on King John the demands that formed the basis of Magna Carta, included provisions against usury.

The advisers of the young Henry in 1216 omitted these clauses, but not from love of the Jews. They were unwilling to impair so useful a source of revenue, which has been compared to a sponge which slowly absorbed the wealth of the nation, to be quickly squeezed dry again by the King. The Jews were always willing to disgorge a portion of their gains in return for protection in the rest; but their lot became hard indeed when Henry III., urged by popular clamour and the wishes of the Pope, began a course of active persecution. In 1253, a severe ordinance inflicted vexatious regulations on the Hebrews, almost converting their quarters in each great city into ghettos, like those of the Continent of Europe.

This was merely the commencement of oppressive measures, the outcome of the growing hatred with which Christians regarded Jews—a result partly of the heated imagination of the rabble, ready to believe unauthenticated stories of the crucifixion of Christian children, and partly of the fact that rich Jews, in spite of all persecution, had possessed themselves of the landed estates of freeholders and barons and claimed to act as lords of Christian tenants, enjoying wardships, escheats, and advowsons, as any Christian might have done. The scope of this enquiry excludes any detailed account of the stages through which repressive legislation passed. The Statute of Jewry, however,1 was of exceptional importance; taking from usurers the right to recover interest by legal process, and limiting execution for the principal to one half of the debtor’s lands and chattels. In return, some temporary concessions were granted. One by one, however, these privileges were again withdrawn, until the end came in 1290 with the issue of a decree of perpetual banishment by Edward I., who was compelled to sacrifice his royal preserve of Jews, in deference to national prejudice.

II.

Legal Position of the Jews.

All through these vicissitudes of fortune, the legal status of the Jews had remained unchanged in essentials. Their position was doubly hard; they were plundered by the Crown and persecuted by the populace. If John saved them from being robbed by his Christian subjects, it was that they might be better worth the robbing by a Christian king. Yet, for this protection, at once fitful and interested, the Jews had to pay a heavy price; not only were they liable to be tallaged arbitrarily at the King’s will, without limit and without appeal, but they were hated by rich and poor as the King’s allies. Such feelings would of themselves account for the unsympathetic treatment accorded to money–lenders by Magna Carta; two other reasons contributed. Usury was looked on in the Middle Ages as immoral (although illegal only for Christians); while excessive interest was habitually exacted.

The feudal scheme of society had no place for Jews. They shared the disabilities common to aliens, in a form unmitigated by the protection extended to other foreigners by their Sovereigns and by the Church. As exiles in a foreign land, exposed to attacks of a hostile mob, they were forced to rely absolutely on the arm of the King. The Jews became the mere perquisites or chattels of the Crown, in much the same way as the villeins became the serfs or chattels of their lords. Rights they might have against others by royal sufferance, but they had no legal remedy against their master. In the words of Bracton,1 “the Jew could have nothing of his own, for whatever he acquired, he acquired not for himself but for the king.” His property was his merely by royal courtesy, not under protection of the law. When he died, his relations had no legal title to succeed to his mortgages, goods, or money; the exchequer, fortified by an intimate knowledge of the extent of his wealth (for that consisted chiefly in registered bonds), stepped into possession and could do what it pleased. The King usually, indeed, in practice contented himself with one–third of the whole; but if the relations of the deceased Jew received less than the balance of two–thirds, they would be well advised to offer no remonstrance. The Crown did not admit a legal obligation; and there was no one either powerful enough, or interested enough, to compel fulfilment of the tacit understanding that restricted the royal claims. Whatever the Jew had amassed belonged legally and potentially not to him but to the Crown. Magna Carta, in striking at money–lenders, was striking at the King.

[1 ]The words “de quocumque teneat” include Crown–tenants and under–tenants, and suggest that only freeholders were protected by this clause.

[2 ]Catallum and lucrum were the technical words for “principal” and “interest.” See Round, Ancient Charters (Pipe Roll Society, Vol. X.), No. 51, and John’s Charter to the Jews, Rot. Chart., p. 93.

[3 ]See Pollock and Maitland, I. 452, and Round’s Ancient Charters, notes to Charter No. 51.

[4 ]The Crown was sometimes called in to enable a debtor, overwhelmed by the accumulation of interest, to come to a settlement with his creditors. In 1199 Geoffrey de Neville gave a palfrey to the King to have his aid “in making a moderate fine with those Jews to whom he was indebted.” See Rotuli de Finibus, p. 40. Ought we to view John’s intervention as an attempt to arrange a reasonable composition with unreasonable usurers, or was it simply a conspiracy to cheat Geoffrey’s creditors?

[1 ]20 Henry III. c. 5.

[2 ]Statutes of Realm, I. 221.

[1 ]Cf. Cap. de Judaeis (Sel. Ch. 262).

[2 ]Cf. J. M. Rigg, Sel. Pleas of the Jewish Exchequer, p. xix.

[3 ]Sel. Charters, 262.

[1 ]See John’s Charter to the Jews of 10th April, 1201, in Rotuli Chartarum, p. 93.

[2 ]See Pollock and Maitland, I. 453 n.

[3 ]Rigg, Op. cit., xx.

[4 ]See Rot. Chart., I. 93. Complaints brought by Christians against Jews were to be judged “per pares Judei,” a phrase which Harcourt, Steward, 228, interprets as equivalent to “the justices or custodes of the Jews,” but see infra under c. 39.

[1 ]Rot. Pat., I. p. 33, and New Rymer, I. 89. The date is 29th July, 1203.

[2 ]See Rigg, ibid., xxiv.

[3 ]See Miss Norgate, John Lackland, p. 231.

[1 ]Statutes of Realm, I. 221.

[1 ]Folio 386b.