Pitched between Scylla and Charybdis: Metz Jews’ Litigation Hurdles in the Metz Beit Din and Ancien Regime French Courts

In: Review of Rabbinic Judaism
Shael Herman Tulane University New Orleans, Louisiana USA

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During the eighteenth century, French courts expanded their competence over Jewish disputes in order to consolidate the kingdom’s hegemony over Alsatian Jewry. In Metz, the expansion was sanctioned by a royal order for the composition of the Recueil des Loix, Coutumes, et Usages Observes par les Juifs de Metz (1742). A blend of Jewish law and French customary law tailored for ancien regime Alsatian courts, the Recueil enabled a Jewish claimant to sue in either the beit din or a French tribunal. These judicial alternatives posed strategic dilemmas. French rulings were frequently vehicles for persecuting Jewish claimants and debasing their law, while rabbinical enforcement mechanisms typically lacked the aggressive bite of their French judicial counterparts. This article examines how the law, and these options, worked in practice.


During the eighteenth century, French courts expanded their competence over Jewish disputes in order to consolidate the kingdom’s hegemony over Alsatian Jewry. In Metz, the expansion was sanctioned by a royal order for the composition of the Recueil des Loix, Coutumes, et Usages Observes par les Juifs de Metz (1742). A blend of Jewish law and French customary law tailored for ancien regime Alsatian courts, the Recueil enabled a Jewish claimant to sue in either the beit din or a French tribunal. These judicial alternatives posed strategic dilemmas. French rulings were frequently vehicles for persecuting Jewish claimants and debasing their law, while rabbinical enforcement mechanisms typically lacked the aggressive bite of their French judicial counterparts. This article examines how the law, and these options, worked in practice.

1 Prelude

According to a venerable rabbinic injunction, Jews were encouraged to settle their differences in-house, in the beit din of the kehillah, and steer clear of gentile courts (arkhaot shel goyim).1 Akin to folkloric admonitions against washing one’s laundry in public, the rabbis probably calculated their advice to shield Jewish affairs from Christian rumormongers and French officials.2 Unlike divisive litigation in the French courts, that of the Metz beit din supposedly rested on the common consent of the kehillah. To promote congregational cohesion, a collegial rabbinate promised rational elaboration of Jewish law. As ancien regime institutions withered and French society hurtled toward revolution, however, pervasive centralizing pressures prompted Alsatian Jews increasingly to seek recourse in French courts. According to Professor Jay Berkovitz:

Jews were viewed as members of a shared public. Law offered a universal language; though there was no presumption of equality, Jews enjoyed within the legal sphere the illusion of citizenship before they were actually admitted as citizens.3

Although promises of Jewish citizenship had long been illusory, official persecution of Jews and debasement of their law were real. French magistrates were not celebrated for detailed knowledge of Jewish law unless that knowledge enhanced their ability to monitor and discipline Jewish subjects’ activities.

1.1 Beit Din Arbitrations

Informed by church doctrine, a host of French regulations dashed Alsatian Jews’ hopes for even a patina of dignity among French officials. In commerce, worship, or daily discourse, Jews encountered official barriers and trip-wires. Both the beit din’s intrinsic limitations and officially prescribed strictures helped trap Alsatian Jews in French procedural machinery, even though Jewish activities were traditionally regulated by an autonomous kehillah. According to Berkovitz, the beit din’s invocation of French enforcement procedures betokened a Jewish minority’s pragmatic accommodation of centralization. In appealing to French procedures, the beit din went beyond accommodation to calibrated coordination with the rabbis’ French counterparts. Inseparable from substantive law, French procedures left a deepening imprint upon Jewish disputes. If, at the conclusion of a beit din proceeding, a Jewish litigant sought relief from a French judge, the latter would likely have relied on French procedure, though rarely the substantive Jewish law at issue.

The duality of procedure and substance enhances our appreciation of French judicial interactions with the beit din. In a western legal conception, procedure and substance have typically constituted opposite sides of a single coin, although one side may be predominant. As western law evolved, procedure and substance blended into an alloy. Impressed by dynamics between substance and procedure, an English jurist, Henry Maine, memorably remarked that “substantive law … was gradually secreted in the interstices of procedure.”4 A beit din’s adjudication of a Jewish litigant’s unsecured claim, unlike those of French tribunals, did not authorize the rabbis’ unilateral compulsion of a party. Rather, the validity of beit din arbitral awards depended upon universal party consensus. By the 1740s, the Alsatian Parlement’s restrictions on beit din rulings and the humiliation of Jewish litigants were hardening into norms of Alsatian Jews’ experience.

Because the Recueil des Loix, Coutumes, et Usages Observes par les Juifs de Metz (hereinafter, Recueil Juifs) valued parties’ reconciliation as a “worthy task,”5 the rabbis frequently urged them to reach a settlement rather than seek judgment by strict law. To set the stage for a compromise, each party named an arbitrator. Together the appointed arbitrators named a third arbitrator. The selected arbitral panel guided the parties toward compromise.6 Like modern alternative dispute resolution, the beit din’s arbitration process afforded parties latitude in both negotiating admissibility of evidence and formulating legal conclusions and enforcement terms. Party latitude animated a decisional process that required party consent to the institution of a legal proceeding and its enforcement. Long before the years embraced by Berkovitz’s Protocols, the Recueil Juifs granted parties recourse to French courts “as if nothing had occurred before the rabbis” (Recueil Juifs, Appendix, article ii, p. 2).

The drafters of the Recueil Juifs seem to have succumbed to the Alsatian Parlement’s pressures by enshrining certain French arbitration norms in their collection. Those norms typically required litigants, on agreeing to arbitrate their differences, to stipulate in their preliminary arbitration agreement financial penalties against a party who ultimately refused to acquiesce in an arbitral sentence.7 Unsupported by ordinary enforcement mechanisms, these penalties frequently afforded leverage over a recalcitrant party who might otherwise have escaped punishment for his non-performance.

Under Alsatian Parlement’s pressure, the Recueil Juifs was sometimes recast to diminish the gravity of rabbinical penalties upon recalcitrant parties. This tendency underscored French official humiliation of the rabbis and French courts’ annulment of rabbinic penalties. At other times, French magistrates imperiously turned rabbinically inspired penalties against the rabbis themselves. Because an Alsatian chief rabbi’s appointment to office ultimately depended on French authorities, French courts displayed few misgivings toward debasing his rulings as if he were a humble underling. An illustrative ruling poured scorn upon a rabbi:

How could a rabbi dare disregard our wise laws? On the feast of St. Barthelemy, we fined two Jews for baking bread at home. The Jews exist in the province by the tolerance of the Prince … and they practice their superstitious ceremonies…. How can rabbis suspend such wise laws?8

French officials disciplined the rabbis like other vassals; and like loyal sergeants of a fief, the rabbis were expected in turn to discipline their congregants in “their superstitious ceremonies.”9

1.2 Beit Din Referrals for Expert Opinions

Besides deciding Jewish disputes, the beit din fulfilled a number of institutional non-adjudicative functions, including gathering evidence and authenticating legal documents, even ones that French courts had originated. By deferring to advisory opinions of French avocats-consultants, the rabbis frequently seemed to placate French courts. Advisory opinions, while they might have helped parties navigate French law applicable to their disputes, did not compel them to comply with French law. The tentativeness of beit din proceedings contrasted with decisive French rulings that compelled a party’s performance, if necessary, by seizing both his person and his assets.

A sensitive avocat-consultant’s opinion might have insulated parties from official French humiliation. The avocat’s opinion was usually flexible enough to allow the litigants to negotiate if they questioned his opinion. Assuming they finally settled their differences, however, a recalcitrant party could have foiled the arbitral award by persuading a French magistrate to upset the settlement. Perhaps the party flouted the beit din ruling by charging the rabbi with unfairness; for his part, a French judge, though uninformed about Jewish law, frequently credited a litigant’s scurrilous assertions about the rabbi.

To an extent, the parties’ negotiations with a rabbinical judge may have been shaped by the perceived fragility of enforcement mechanisms deployed without party approval. On appeal, a French court itself sometimes blocked enforcement of a rabbinical order because the enforcement phase tangentially involved a Christian. For example, in a beit din ruling that ordered a groom to pay his prospective bride a promised dowry, the Alsatian council took over the case because the bride had obtained a seizure of the groom’s assets lying in the hands of Christian third parties indebted to the groom10 (Recueil Edits, II, p. 440).

According to the Recueil Juifs, if a party to a beit din arbitration refused to acquiesce in an arbitration ruling, then he could have commenced a new action in the French courts as if no proceeding had occurred before the rabbis. Once the rabbis and parties had reached a compromise, an appeal of the arbitral sentence went directly to the Parlement or the Presidial, a court inferior to the Parlement (Recueil Juifs appendix, art 3, p. 2). Litigants’ actions combined with the Alsatian council’s ruling to nullify or dilute rabbinic authority over questions central to kehillah authority. For example, the Recueil Juifs permitted “every excommunicated Jew for causes unrelated to the religion [to] seek from … [French] judges an order lifting the excommunication, [and] even to condemn them to damages and penalties” (Recueil Juifs, appendix, p. 2).

A leading French jurist, Merlin, discounted the beit din’s power and diluted the legal authority of the rabbis’ judgments:

The Jewish decisions … are merely individualized advice binding only those who submit to them. Only the Parlement or the superior council, in reversing them, or confirming them, can make them binding or null; this French authority gives them the force that their Jewish source cannot give them.11

Many Jewish claimants, because they were unsure of gaining the beit din’s help,12 would have justifiably taken their chances in the French courts. In belittling the beit din’s authority, Merlin perhaps had in mind the Parlement’s intrusions into the beit din’s jurisdiction. In 1734, the Parlement limited rabbinical jurisdiction to cases in which parties had agreed voluntarily to submit to arbitration; the Parlement further curtailed the imposition of the herem and other disciplinary measures. Besides these limitations, French courts frequently displaced the beit din in disputes involving an official action in respect of the kehillah or a synagogue. In oscillating between the beit din and a French tribunal, a Jewish litigant benefited from application of substantive Jewish law. Recalling Maine’s maxim, however, the Jewish law might have been tempered by French procedure dispositive of the litigant’s rights.

According to the Metz taqqanah (1769), rabbinical rulings originating in the beit din might have required a French court’s enforcement orders.13 A beit din dispute over a Jewish estate could have been entertained in a French tribunal in which French officials performed an estate inventory and collected taxes. Estate assets, because they were nearly as good as funds already in the royal treasury, had allure for French fiscal agents; in an estate inventory, they could have seen a ready source of royal income because they had already evaluated the assets. By conditioning the distribution of estate assets upon payment of taxes and fees, royal tax collectors showed their understandable preference for payment from estate assets more than encumbered assets of a barely solvent debtor. The crown acquired significant leverage over estate heirs by blocking distribution of estate assets until they paid the prescribed taxes. To raise funds for royal taxes, an heir would have consented to liquidation of estate assets descending to him.

1.3 “Mr. Marshall Has Made His Decision. Now Let Him Enforce It.”

Issued by United States President Andrew Jackson on learning the outcome of a celebrated supreme court controversy, Worcester v Georgia (1832),14 the challenge quoted in our subtitle represented for the American chief justice a crucial challenge to the court’s legitimacy. Whether addressed to a beit din, a French magistrate, or a United States judge, such a challenge prompted a court to evaluate potential enforcement measures against a recalcitrant party. If a claim involved a Jewish debtor, a creditor’s remedy entailed comparison of French enforcement tools with their Jewish counterparts. If a Jewish petitioner cared little about his debtor’s spiritual and physical welfare, perhaps he concluded that French imprisonment was appropriate; alternatively, he might conclude that the beit din’s powers of “moral suasion”15 were adequate to force the debtor to perform. According to Berkovitz, many debtors performed under a beit din’s threat of being cast out of the kehillah, excluded from Jewish worship, and denied personal security and livelihood. If a Jewish debtor did not care for such social advantages, then, according to Berkovitz, the beit din’s authority over him was diminished. Even a social pariah could have started a new life in a region where he was unknown.

1.4 Bodily Constraint: The Queen of Compulsion

According to ancien regime procedure, the queen of compulsory remedies consisted of a debtor’s bodily constraint [contrainte par corps].16 This remedy was informed by a venerable adage of enforcement: “if a debtor could not pay with his purse, then he paid with his hide.” A foretaste of debtor’s prison, this remedy animated a creditor’s chaining and imprisoning his debtor until he or his associates made good on the debt. Before the French Revolution, French judges granted the remedy in an array of actions including merchant suits and actions that expressly authorized the remedy.

A royal ordonnance (1667) formulated the essential features of contrainte par corps.17 According to the ordonnance, a debtor cast in judgment for a monetary amount had to satisfy it within a fixed period. If he failed to pay in full, the court ordered a bailiff [huissier] to search for him and, if necessary, to break down his doors. The bailiff arrested him and marched him to jail. The imprisoned debtor18 could earn release [main levee] by paying the judgment plus costs; alternatively he could post adequate sureties to guarantee his debt. Needless to say, even a debtor’s close friend or relative would have cautiously appraised the debtor’s request to become a surety because he wanted his assurance that he could promptly raise the cash for his creditor.19 Without that assurance, the prospective surety realized that he risked imprisonment if he defaulted on his guarantee. During the revolution, the remedy of contrainte par corps endured in the law 15 germinal an 6 (4 April 1798).

1.5 Seizure and Auction of Asset

A French court typically concluded its judgment by ordering a defaulting debtor to make a monetary payment. If the debtor, having exhausted his appeals, refused to pay, then the petitioner moved to execute the judgment; a judge instructed a court bailiff to seize the debtor’s assets20 and auction them to the highest bidder for cash.21 The bailiff’s seizure of a debtor’s assets presupposed a scrupulous search for them. A recalcitrant debtor, on learning of the petitioner’s search, could have concealed his movables with cooperative friends and relatives. Perhaps the judgment creditor decided not to seize certain assets because they were heavily mortgaged and would have offered too little equity to satisfy his debts. Expenses of the search and seizure could have substantially increased the debtor’s liability: in addition to the judgment amount itself, the debtor was liable for auctioneer’s fees and expenses of court officials who had seized the assets and maintained their custody.

A judicial sale of real estate effected a surgical strike upon the debtor, especially if he occupied the property at the moment of seizure.22 For the debtor, the element of surprise was important. Armed with an enforceable judgment, a bailiff would move promptly to occupy the property, lest the debtor cannibalize the buildings or pick the land clear of crops. Proceeds of the sale would be applied to the judgment amount. If the proceeds were insufficient, a court official could identify other assets whose aggregate value would satisfy the judgment and costs. The debtor’s dispossession might abruptly have severed relations with his business associates.

Besides tying up a debtor’s immovable property, a seizure could be deployed against movables.23 To illustrate, let us assume that the debtor had leased an immovable to several tenants who together owed aggregate monthly rents large enough to satisfy the judgment. To avoid disturbing the tenants’ possession and cutting off the rental stream, a creditor, without seizing the immovable itself, could execute the judgment upon the monthly rents flowing from the debtor’s tenants. Until the judgment was satisfied, the law barred the judgment debtor from releasing any tenants from their leases to the prejudice of the creditor’s claim.

A court could also effectuate a seizure upon a stream of payments yielded by promissory notes in the debtor’s hands, or, as we shall see below, payments owed a judgment debtor by his own debtor. Once the debtor’s assets were exhausted, the remaining indebtedness still attached to him personally. If he later inherited or purchased property, the balance of his debt encumbered his subsequent acquisitions. The subsequently acquired assets could be seized for his remaining debt.24

If the court issued an injunction, the debtor had to comply either by doing something or abstaining from doing it; if he did not comply, then court officials pursued him with the goal of imprisoning him. The officials frequently sought his compliance by piling daily fines on him. Ultimately almost any debtor would have succumbed to seizure and auction of an asset. If he still did not pay, his liability mounted, exposing him to arrest for much more than the original judgment award.25

2 Beit Din’s Enforcement Tools

Unlike formally educated French avocats, beit din attorneys were typically “off-duty judges, … parnasim [and] leading community figures, not professional lawyers.”26 Their guild-like training, like that of English barristers at the inns of court,27 probably deepened their appreciation of legal doctrine and reinforced the coherence of their legal elaboration. According to Berkovitz, the Pinkas revealed little about conduct of beit din legal proceedings.28 The beit din’s … warnings to a recalcitrant obligor reveal that “the court’s leverage, absent coercive force, was limited to infliction of certain disabilities or inevitable legal consequences.“29 Though the beit din vaguely hinted at consequences for a losing suitor, its coercive instruments typically depended on denying him advantages of procedure and pleading.30 According to Berkovitz, “limitations on the use of force to compel community members to obey communal regulations and court rulings undoubtedly help account … for … judicial restraint and acquiescence regularly evidenced by the beit din’s rulings.”31 Collected under the rubric “ostracism” [herem], a party’s penalties were weakened if he was outside the rabbinate’s authority [she-eino tahat harabbanut].32 Small wonder that many a Jewish claimant would have preferred French punishment for his debtor but rabbinical punishment for himself.

2.1 Recourse and Non-recourse Liability

Berkovitz’s account of the beit din’s enforcement mechanisms may understate rabbis’ coercive powers. Though the beit din, unlike French courts, lacked the power of bodily arrest and imprisonment, a creditor, by requiring collateral for the debtor’s obligations, still could have gamely exploited coercive procedures to his advantage.

The Recueil Juifs’ dense regulation of non-recourse devices calls for a detour into a traditional distinction between 1) recourse [in personam] liability, a figure of pre-revolutionary French law but not Jewish law, and 2) non-recourse [in rem] liability, a figure common to both Jewish and French law. According to French law, recourse liability entailed a judicial action against a debtor who was personally obligated to a creditor. Besides a debtor’s physical arrest, recourse liability afforded the creditor unlimited access to the debtor’s present and future assets, including those held by the creditor as collateral for the debtor’s obligations. If a debtor had furnished realty as security, a key ordinance33 authorized his removal from the tenement if he refused voluntarily to surrender it.

Supposing that a debtor was not personally obligated to a creditor, a real action (i.e., an action resulting in non-recourse liability) was exercised on assets he had pledged to the creditor or on assets in custody of a third party not personally liable to the creditor, not upon the entirety of the debtor’s assets. An action also lay against a third party who was a debtor of the debtor or a depositary of the debtor’s assets. In a real action, the creditor’s enforcement remedies ended when the third party abandoned the assets to him. Non-recourse liability shielded the third party from the creditor’s personal action, because the former had no legal obligation to the latter. Hence the creditor would have had no grounds for a monetary judgment against the third party.

2.2 Third Party Seizure

To discharge a debtor’s monetary obligation, the beit din ordered the seizure of an asset in a third party’s hands. In one case, a groom failed to deliver his bride a promised dowry (Recueil Edits, II, p. 440). The bride, having obtained the beit din’s monetary judgment against the groom and then searched far afield for the groom’s assets, located some of his assets in the hands of third parties located in three cities. (The assets were not identified; perhaps they were movables on deposit with the third parties, or consigned to them for sale, or even promissory notes [billets a ordre] in favor of the groom.) Akin to garnishment of a debtor’s assets in the hands of an employer or a bank, a rabbinical judge’s issuance of the seizure against the third parties was anchored in the Recueil Juifs.

This garnishment procedure surely threatened the groom’s welfare. If he did not satisfy the debt to the prospective bride, the seizure could have harmed his relationships with co-contracting third parties and publicized his disloyalty among associates who counted on his good faith. In this particular case, the French tribunal ousted the beit din’s authority on the ground that the third-party debtors, as Christians, were shielded from the rabbi’s orders. We classify this garnishment remedy as non-recourse, because the third-party debtors’ obligations ended on seizure of the assets. Irrespective of the amount of the groom’s debt to the bride, the bride could have claimed from the third parties no amount beyond the assets in the third parties’ hands. Though indebted to the groom, they owed the bride no personal or contractual obligation. Assuming they were indebted to the groom for only movables or money in their possession, third parties awaited the French court’s identification of the rightful recipients of the assets.34

2.3 Recueil Juifs Regulation of Third Party Seizure

Recueil Juifs Title xxvi regulated the seizure of a debtor’s assets in terms that embraced assets seized by the bride in the preceding case:

… cash found at a debtor’s [domicile or place of business] is to be delivered to the [seizing] creditor; … if the debtor has it on deposit elsewhere, it shall be withdrawn and delivered to the creditor, excluding funds loaned to the debtor before arrival of the date for repayment. [Author: presumably, the lender of these funds acquired priority in them from the maturity date of the loan.] Unable to locate sufficient cash, the creditor can demand payment via a giving in payment [dation en paiement] of the debtor’s movables and immovables, and the creditor must content himself with what the debtor offers him, [author: he cannot cherry pick the best assets] and accept it by [rabbinical] estimation up to the amount he is owed.

Recueil Juifs, art. 1, p. 225; author’s italics

This seizure regulation incorporated several salutary safeguards. To avoid a lawsuit, for example, the creditor could have accepted a dation en paiement, i.e., extinction of a debt by transfer of assets instead of cash. In the document embodying the dation en paiement the debtor declared a debt to a specific creditor and his inability to repay it in cash. Instead of payment, the debtor declared the transferred assets and their values. Both creditor and debtor would have agreed that delivery of the assets signified satisfaction of the debts. The rabbis’ appraisal enhanced the integrity and fairness of the transaction. Absent the appraisal, the creditor might have claimed too much property in satisfaction of the debt; or perhaps the debtor had offered him too little. Because natural events or improper use of assets could have driven down their value following their seizure, it was important to pinpoint their value by appraisal promptly after the seizure.

According to French law, a dation en paiement had to stipulate the amount of the debt to be extinguished, and frequently the document estimated the value of the assets delivered to the creditor. The regulation granted the debtor an option to select the items to be applied to his debt, probably because he knew best his requirements for continuing his business activities. Deprivation of these articles (tools of the trade, work garments) ought not to have destroyed the debtor’s means of livelihood.

2.4 Other Coercive Remedies in Recueil Juifs

The distinction between recourse and non-recourse liability looms behind the Recueil Juifs’ regulations of seizures, foreclosures, and rabbinical appraisals. These remedies enabled a creditor to compel his debtor’s performance, but, unlike French procedures, the creditor’s leverage depended on the debtor’s preliminary delivery of sufficient collateral to satisfy the debtor’s potential liability.

For a prospective auction of a debtor’s assets, the Recueil Juifs required advertisements in the synagogue. The rabbi estimated the asset’s value, an auction was conducted, and the asset was adjudicated to the highest bidder (Recueil Juifs, art. ii–v, pp. 226–227). The rabbi’s appraisal of the asset was essential: this requirement was confirmed in a declaration that “a simple seizure of an asset gave a creditor no right in an asset unless it was delivered to the rabbi for estimation” (Recueil Juifs, art. iv, p. 231). The rabbi’s appraisal enabled the parties to fix accurately the value of seized items, lest they depreciate because of natural forces or misuse. The debtor could have redeemed his asset upon reimbursing the appraised value. If the debtor’s promissory note waived a rabbinical appraisal, then the asset could have been adjudicated to a bidder without rabbinical appraisal and the debtor could not have redeemed it.

2.4.1 Creditor’s Leverage Implied in Recueil Juifs

Though unsupported by recourse liability, a creditor’s leverage informed specific provisions of the Recueil Juifs. For example, according to a provision in the chapter titled “Causes that may retard or block execution,” thirty days after a creditor’s demand for satisfaction of his note, the debtor acknowledged the debt, and execution occurred upon all the assets in the debtor’s possession (Recueil Juifs, art. i–iii, p. 223). [There was no deficiency claim personally against the debtor for a sum exceeding the proceeds of the auctioned property.]

If the debtor has claimed certain items in his possession do not belong to him, but to third parties who have deposited them with him for safekeeping or to be sold, he is not to be believed [author: because he is presumed to be shielding his own assets from liquidation by claiming they belong to third parties].

This provision presumed that the debtor owned the assets in his possession; if a third party owned an asset in the debtor’s possession, then the former would have had to intervene in the creditor’s action to prove his ownership and lift the seizure as to his particular asset.

2.4.2 Debtor’s Absence from Beit Din’s Jurisdiction Does Not Block Seizure of His Assets

Among advantages of non-recourse remedies, a creditor could enforce a debt even if against a debtor absent from the jurisdiction. The debtor did not require personal notification of enforcement, and the creditor’s recovery was limited to proceeds yielded by an auction. Nonetheless, safeguards protected the debtor’s rights:

Every creditor, in demanding execution upon his absent debtor, must prove the accuracy and integrity of his document of credit; that his debtor is too far away to come back within thirty days; that the assets really belong to the debtor; that he [the creditor] has not been paid; that the document justifies belief in the creditor even if the debtor is absent; the rabbi may authorize the execution and take the assets in pledge …

Recueil Juifs, art. 1, p. 234–35; author’s italics

2.4.3 Metz Taqqanah (1769)35 Authorized Beit Din’s Direct Collaboration with French Courts

Suggesting practical limitations upon the rabbinical ban against Jewish actions in French courts, a Metz taqqanah attested to the beit din’s enforcement of its rulings by collaborating with French courts. It described a Jewish creditor’s methods of pressuring a recalcitrant debtor to fulfill his obligation both by suing him in a non-Jewish tribunal and compelling him to escrow funds adequate for an eventual judgment. A Jewish plaintiff could not compel the defendant to appear in the beit din, but the beit din could order the defendant to appear before a non-Jewish court:

If someone [hereinafter “plaintiff”] requests a person [defendant] settle a dispute in a Jewish tribunal, and the latter refuses, if the gaon [president of the rabbinic tribunal] has already applied all measures of constraint and the person does not comply, or if the gaon resists applying constraint measures because the person is a delateur connu [known informer; snitch], the plaintiff must report the events to the council, and the council may authorize him to order the defendant to appear before a non-Jewish tribunal. The council will prepare a memoire and record it in its register. Someone who refuses to go to a Jewish tribunal will be stricken with all sanctions…. If the plaintiff invites the defendant to a non-Jewish tribunal and if, before the judgment, the defendant repents and agrees to submit to a judgment according to the Torah, he must deposit with the gaon a sum for both the petitioner’s expenses and damages and as a pledge for the initial refusal, which the council will impose on him in its discretion. After depositing the sum the defendant may go to judgment with him before the Jewish tribunal.36

According to this provision, having exhausted all measures against the defendant, the beit din was authorized to refer the case to a French court. To conduct its own deliberations, the French court received the beit din’s narrative [memoire] of the case and imposed measures it deemed appropriate, including arresting the debtor, a remedy unavailable in the beit din. By requiring the defendant to pledge with the gaon a sum sufficient for the plaintiff’s expenses and damages, the beit din gained non-recourse leverage over the defendant.

2.4.4 Estoppel: Barring a Party from Asserting a Claim because of His Prior Conduct or Disregard of Beit Din’s Admonition

Pervading Recueil regulations of good faith and fair dealing, the equitable norm of estoppel enabled a court to rely on a party’s conduct or allegation to bar him from later denying or alleging a contradictory claim. In certain situations warranting estoppel, the Recueil Juifs indirectly blocked a debtor’s collection of a debt if he had disregarded its norms or the beit din’s admonition. Suppose, for example, a creditor had sued his debtor for a legitimately owed payment; although the debtor also had a legitimate monetary counter-claim against the creditor, he failed to urge it in response to the creditor’s claim. The Recueil Juifs barred the debtor from offsetting the creditor’s monetary claim on the ground that the former was blameworthy in failing to make his demand by offset against the creditor. The debtor’s claim would have been grounded upon the Roman law principle of compensation (Recueil Juifs, art. xl, p. 137), as regulated in Justinian’s Compilation. According to a modern procedural lexicon, the debtor was estopped from later claiming payment from the creditor. This form of compensation, unlike that of Justinian’s Corpus Juris Civilis, did not operate automatically between the parties; instead, it required the debtor expressly to invoke the creditor’s liability in the creditor’s action against him.

Akin to estoppel, a procedural bar could also have prevented a creditor’s claim if he had delayed too long in demanding payment from his debtor. Mirroring Talmudic imprescriptibility of a written obligation, the Recueil deemed the creditor’s tardiness a form of dishonesty, and perhaps fraud. This halachic bar likely impressed French magistrates as a derogation from imprescriptibility:

… if the rabbis, [after] having fully examined the circumstances, find that the creditor, through fraud [dol] or trickery [supercherie] waited an unusually long time without acting against the debtor, the debtor should not be condemned [by judgment]. The judges should give him [the debtor] a document barring other judges from enforcing his debt.

Recueil Juifs, art. v, p. 227

An estoppel plea could also have denied a party certain claims if he refused to comply with the court’s orders. For example, a party’s violation of beit din orders barred his otherwise legitimate right to challenge a promissory note in favor of his creditor. According to the rabbis’ admonition, he would forfeit his right to take an oath denying the claim and to contest claims against the creditor.

3 Strategies That Informed a Jewish Suitor’s Forum Choice

3.1 Forum Choice for a Suitor Who Has Complied with the Rabbinical Injunction

In ancien regime Metz, both pragmatism and idealism inspired a Jewish claimant’s compliance with the rabbinical ban. The claimant’s solidarity with his co-religionists likely informed his conduct. Realizing that French courts often belittled beit din rulings and Jewish law, he might have complied with a rabbinical judge’s ruling and foregone appeal to a French court. To minimize litigation costs in French courts, perhaps a prospective petitioner preferred to urge his rights by relying on the defendant’s decisory oath as to a fact or claim. In the claimant’s view, such a rapidly administered oath fueled a debtor’s fear of rabbinic ostracism if he were found to have committed perjury.

A French judicial proceeding could have been more protracted, hence more costly, than its beit din counterpart. Preferring documentary evidence over oral testimony, French courts typically insisted on a litigant’s oath only when a party could not produce certified written evidence (e.g., a notarized document that imported an oath) or a combination of lesser written proofs authenticated by a witness’s oral testimony.

The Recueil Juifs inverted the French judicial preference for documentary proof over testimony. According to the Recueil Juifs, “in no case can a witness give his deposition in writing” (Recueil Juifs, art. vi, p. 27). This norm resonated in the Recueil’s regulation of evidence:

The law of Moses seeks all proof by testimony of two or three persons; a single witness proves nothing, while what is assured by testimony of two passes for truth…. Vocal [oral] proof is admitted by the judges in all civil matters, irrespective of the amount in contest.

Recueil Juifs, art. 1, p. 24

Reviewing his options on receiving notice of a beit din ruling, a Jewish litigant might have abandoned an appeal because he feared losing control of his case. He could not insist that an appellate judge rule on one issue to the exclusion of another. Nor could he dilute a French judge’s scorn for the kehillah and Jewish law.

3.2 Suitor’s Strategies When Official Action Has Made the Kehillah Captive to French Tribunals

In a second group of hypotheticals, the rabbinical injunction did not figure in a Jewish litigant’s forum choice. Instead, a French official typically initiated a judicial action that entirely bypassed the rabbinical jurisdiction because the beit din almost surely would have denied the requested remedy.

3.3 The Crap Shoot: When a Proceeding Oscillated between the Beit Din and French Tribunal

In a third category of cases, controversies migrated between the Metz beit din and French courts. The incidence of this choreography seems to have increased as the Parlement stepped up its oversight of the beit din and Alsatian Jewry. Appealed to a French tribunal, a typical beit din controversy in the third category could have taken on a life of its own, partly because French judges were influenced by anti-Semitic policies and historical antecedents antithetical to a rabbinical judge’s training. A beit din ruling that had not been appealed could have figured in a subdivision of the above category; but the ruling nonetheless required enforcement from a French tribunal because a rabbinic judge alone could not have compelled a litigant’s compliance with a beit din order.

A Jewish litigant’s contumacious refusal to perform a rabbinic order probably seemed to a beit din rabbi a bitter reward for his sympathetic judicial ear and considerable knowledge of Jewish law. While Berkovitz’s Protocols have depicted Jewish experience largely through sympathetic rabbinical lenses, the French judicial record frequently blanketed Jewish experience in dystopic gloom. This gloom must have spiritually weighed on Jews who recognized that they were valued for materially enriching the realm but scorned for their humanity.

3.4 Disregarding the Rabbinical Injunction, a Petitioner Seeks a Ruling from a French Tribunal

While rulings in Section III A originated in the beit din, another group of rulings characteristically originated in French tribunals. By invoking royal jurisdiction, Jewish litigants circumvented the beit din, despite the oft-repeated rabbinical admonition. In some circumstances, the petitioner had no realistic option; for example, he might have had to petition a French magistrate for authority to settle his family in a given locale, a request a beit din would not have entertained.37 In such a case, the petitioner likely endured judicial invective that harped on Jewish rootlessness. “It is particularly revolting,” said a magistrate in response to a Jew’s demand for authority to settle in a certain town, “that an individual of this outlaw nation tries to force a seigneur to accord him protection on the ground that the Seigneur had accepted the father, and the petitioner was born [in the tenement]” (Recueil Edits II, p. 461). Counterintuitively, French courts, not the kehillah, exercised the power of confirming rabbis (Recueil Edits, II, pp. 211–12). Starting with the monarch, an array of French officials figured in the kehillah’s rabbinical choice.

For enforcement of a debtor’s promise to pay, secured by chattels, a creditor might have preferred a French court’s remedies, including bodily restraint. This was likely true for a Jewish claimant if he were a merchant, or his dispute fit a specialized category embracing charter parties, marine contracts, vessel sales, and freight transport. Perhaps tactical reasons shaped his preference; he may, for example, have chosen a French tribunal because his documentary evidence supported his claim while anticipated oral testimony weakened it.

Besides these tactical considerations, a turbulent ancien regime economy likely weighed upon a hypothetical Jewish petitioner’s selection of an advantageous forum. Generalized financial turmoil likely discouraged him from lending; and the debasement of hard assets and currency devaluation likely made the debtor’s eventual repayment seem increasingly at risk of dilution or default. Hence when a creditor made an advance, he likely recognized these eventualities by over-collateralizing his debtor’s obligations. Social volatility accompanied paroxysms of hyperinflation that culminated in compulsory substitution of worthless paper for debt instruments premised upon repayment in silver and gold.

If worthless paper were deemed equivalent to metallic currency, then perforce inflationary pressures debased a monetary judgment virtually to zero. Unlike our rigorous twenty-first century financial regulations, pre-revolutionary France had neither a central bank nor a financial safety net that relieved economic turbulence. Small wonder that the hypothetical creditor might have wished to secure enforcement in accordance with French procedure, including bodily constraint. Abolished during the early years of the revolution, bodily constraint of a debtor resurfaced in revolutionary legislation, perhaps because other remedies seemed increasingly fragile and undependable.

3.5 Debasement by French Magistrates

Materials for our inquiry into the Alsatian judiciary’s debasement of Judaism are collected in Recueil des édits, déclarations, lettres patentes, ordonnances Arrets du Conseil d’Etat, et du conseil Souverain d’Alsace Ordonnances et Reglemens de cette province 1726–1770 (1775) (Recueil Edits II, cited by title and page number). It was edited during the eighteenth century by Emmery, an avocat of the council of Alsace, and de Boug, a magistrate. A leading nineteenth century bibliography stressed the importance of the Recueil Edits for research into Alsatian jurisprudence.38 Unlike beit din rulings in Berkovitz’s Protocols, which covered approximately the last twenty years of the ancien regime, those in the Recueil Edits, issued entirely by French tribunals, date between about 1500 and the outbreak of the Revolution.

4 The Church and the Crown: Collaborating Engines of Anti-Semitism

Targeted at the pre-revolutionary church, Voltaire’s slogan “ecrasez l’infame” [crush the loathsome] figured among French revolutionaries’ most memorable rallying cries. Voltaire’s indictment of clericalism traced a host of social ills to the church. After the ravages of the revolution, the French church never fully recovered its political prestige and authority. Leaving aside French grievances against the church, French Jews in particular had reason enough to distrust the Church. From the middle ages, churchmen characterized Jewish wandering as divine punishment for rejecting Christ. Conceived by churchmen, badges of the Jews’ supposed damnation marked their daily experience. Denied both traditional trades and investment in real estate, the Jews engaged in lending at interest and earned humble borrowers’ scorn for their business.39 King Louis’s edicts fueled French animus: “The Jews of our realm cause ruin to an infinity of families by abusing their borrowers [and] demanding usurious interest that they add to the capital they lend” (Recueil Edits II, p. 94).

4.1 Royal Duplicity

Though the monarchy frequently stoked humble subjects’ contempt toward Jews, royal officials sometimes moderated subjects’ excesses. Believing in the king’s professed sincerity toward the kehillah, local Jews occasionally petitioned for royal protection against the parlement’s incursions; Jews considered the king a sovereign and authoritative voice of the realm.40 In response, the king confirmed the beit din’s legal autonomy and the kehillah’s power to select its rabbis. According to Jordan Katz, having witnessed the king’s exercise of authority in dealings with other French cities, the Metz Jews earned royal support. The Bordeaux kehillah supplied a template for Metz Jews’ petition:

After the ordinance granted by Your Majesty in favor of the Jews of Bordeaux, it is useless to search for other authorities to establish the demand of the Jews of Metz. The reasons which persuaded Your Majesty to make this order are the same that the supplicants employ to obtain a similar [ordinance] in their favor.41

4.2 Church Maneuvers

From the Church’s early years, a fear of losing congregants to Judaism prompted churchmen to persecute Jews; medieval Lateran councils isolated the Jews from Christians; churchmen barred Christians from working for Jews, residing near them, and intermarrying with them. French officials claimed that the Jews’ unique industry lay in hastening the ruin of unfortunate borrowers (Recueil Edits II, p. 462). Monarchical policies prefigured Napoleon’s two-faced anti-Jewish assertions.42 With the monarchy and feudal lords, Jewish communities routinely negotiated treaties of protection in exchange for burdensome taxes and tribute.

Jewish loans to humble borrowers largely constituted an entertaining sideshow for French society. In the metaphorical main tent, wealthy monasteries and clerical orders negotiated with both Christians and Jews at high multiples of Jewish loans. Pressured by Jewish foreclosures of their pledges, Christian borrowers poured vitriol on Jewish lenders. Although Scripture promised Jews a homeland, churchmen justified Jews’ precarity as a consequence of their rejecting Christ. Church doctrine correspondingly inspired French bans on Jews’ settlement. According to a typical ordonnance, “the Jew has no fixed domicile; he is condemned to wander in perpetuity; … he is always denied stability, … and even forbidden to return to his forefathers’ land” (Recueil Edits II, p. 462).

4.3 Methodological Challenges

Our inquiry has confronted several practical and methodological challenges. First, the ravages of time have inevitably made French judicial records fragmentary; the further back one goes in time, the more fragmentary the records.43 Anti-Semitic rhetoric, by infecting even innocent judicial observations, rendered the accuracy of entire rulings suspect. Expert bibliographers have lamented gaps in the archives. Consequently, a ruling, after having presented its rationale and facts, typically trails off inconclusively, leaving the reader in suspense about the outcome.

Second, French magistrates seem to have calculated their chaotic rulings to roil the Jewish community. To humiliate the kehillah, French magistrates frequently insulted beit din judges and dismissed their rulings. From a procedural standpoint, such French judges denied the rabbinical record of a Jewish controversy the presumption of correctness characteristic of modern appellate procedure. In a noteworthy case, a French judge who entertained the appeal of a beit din ruling seems for frivolous reasons to have made sport of the rabbi’s ruling and his character. Likely intending to cast opprobrium upon the rabbi, the judge projected the French tribunal’s institutional superiority. But, in numerous ways, the French ruling could have fueled the Kehillah’s anxieties and prompted the community’s evasion of the French judge’s orders.

Confident of their expertise to interpret royal regulations and seigneurial ordonnances, Alsatian magistrates, as the preface to the Recueil Juifs observed, characteristically registered their collective ignorance of Jewish law. To fill gaps in their knowledge, they relied heavily upon translators and experts; they probably fully trusted even these assistants only if they were Catholic converts.44 French magistrates’ ignorance of Jewish law did not stop them from attacking it. In particular, attacks on Jewish divorce promoted conversions and expanded the Christian flock.

Rigorous Jewish regulations seem to have influenced numerous adjudications of Jewish rights reported in the Recueil Edits. Jewish regulation embraced numerous social dimensions, including commerce, mobility, Jewish residence, synagogue establishment, worship, taxation, persecution, ostracism, rabbinic discipline, and kashrut. So-called poisoners of “sacred” Christian air, Jews were tolerated if they had unusual skills (i.e., finance) and their activities could be strictly monitored. Royal judges, eager to prove their Christian devotion, served as both the church’s lieutenants and the Jews’ monitors.

5 Alsatian Council as Monitor of Kehillah Administration, Jewish Taxation, and Kashrut

5.1 Sovereign Council of Alsace

A court of last resort akin to a pre-revolutionary provincial Parlement, the Alsatian Council was established in about 1657 and disbanded in 1790, upon the outbreak of the revolution. Meeting in separate chambers, twenty-four judges staffed the council during most of its history. The magistrates’ devoutness prompted a witness to remark that they were more Catholic than the archbishop of Basel. The council combined functions of an appellate court, a legislative overseer of Alsatian issues and, notably for our current inquiry, a monitor of Jewish affairs. The process of monitoring Jews likely overlapped with incitement of Christians against them. There is evidence that council magistrates, to promote Jewish persecution, also joined with local seigneurs in agitating Christian borrowers to sue them for usury and fraud.45 The presidial and the bailliage figured prominently in several cases. The jurisdiction of both tribunals was inferior to that of the Parlement. The presidial had a broad criminal competence; its civil competence depended upon the amount in dispute. These inferior jurisdictions fueled the Parlement’s anxiety over lost judicial fees.46

5.2 Alsatian Council’s Anti-Semitism Infused French Rulings

Because Jewish parties and their witnesses were routinely suspected of treachery and fraud,47 the Alsatian council formulated and monitored Jewish ceremonies that promoted Jews’ truthful testimony. For example, the council regulated aspects of the Jewish oath [more judaico].48 French magistrates formulated Jewish oaths for actions otherwise detached from French law.49 The monarchy formulated rules for Jews’ loan documentation and regulated the magnitude of Jewish loans to peasants who bought land on credit. These regulations also placed the loans under French official supervision, though, as the Recueil Juifs made apparent, Jewish law could have settled the disputes.50 Distinctive anti-Semitic regulations permeated numerous council rulings. Council deliberations over Jewish lending policies were typified by a council member’s remark that “all the peasants indebted themselves; their imprudence brought them the grimmest results and threw them into the perfidious hands of usury.”51

5.3 Protecting Christian Creditors’ Collateral from Jewish Debtors’ Observance of Jewish Marriage Customs

French regulations were made applicable to Jewish creditors, even when their loans had not become embroiled in controversy. For example, the council, ostensibly to protect gentile creditors, ordered Jewish newlyweds to deposit with royal notaries all Jewish marriage contracts. (Recueil Edits II, p. 440). The notarial depository forewarned Christian creditors of impairment of their security as a result of Jewish dowry arrangements.52 To protect Christian creditors, a Jewish debtor was prohibited from assignment for the benefit of creditors, unless seventy five percent of his Christian creditors approved the assignment. Royal regulations denied Jewish wives the benefits of separation of marital assets to the prejudice of Christian creditors. But a Jewish wife could have stipulated for management of her separate marital estate provided her stipulations were recorded in the registry of the husband’s domicile. The registry requirement presumably enabled a Christian creditor to evaluate collateral received in a transaction with a Jewish couple.53

5.4 Royal Regulation of Jewish Loan Transactions

As beit din litigants gravitated to French tribunals, a cascade of royal prohibitions swept up loan documentation from Jewish control into royal supervision. In 1717, the Alsatian council forbade notaries to draw up or renew promissory notes if they had not witnessed a Jewish lender’s delivery to the borrower of the entire amount recited in the document (Recueil Edits I, p. 797). In 1733, the king forbade unauthenticated IOU s and required notaries, without turning their attention to other matters, to prepare all promissory instruments and execute them before witnesses. Declaring loan instruments drafted in Hebrew fraudulent and emblematic of Jewish sinfulness, royal standards required lenders to prepare documents in French [“langue vulgaire”] or risk being barred from lending altogether. When Hebrew loan receipts were nullified, French tribunals assumed jurisdiction over Jewish loans without a need for translators.

In 1769, the French king ordered registration of Jews’ promissory notes in the law courts. By opening Jewish lenders’ books to public inspection, this requirement enabled the monarchy and its favorite retainers to identify both vulnerable borrowers and best leveraged lenders. Alsatian Jews protested the requirements on the ground that they would have to divulge sensitive information about a prominent Jewish activity, the provisioning of the king’s army. To pacify Christian officials, the Recueil Juifs adopted some of the Council’s lending regulations.54 Wittingly or unwittingly, Metz Jews fell into traps French officials had set for them.

5.5 Christian and Jewish Usury

Characterized by churchmen as a badge of a Jew’s spiritual bankruptcy, lending at interest supposedly figured among Jews’ gravest sins. Churchmen cleverly depicted usury as a Jewish monopoly and branded Christian lenders at interest as “practitioners of Judaism.” Reflecting that no one could withstand the pressures of the time value of money, both Christians and Jews engaged in lending at interest. But royal regulations limited Jewish lenders’ collateral to chattels, while clerical orders and monasteries loaned primarily on realty. Rents yielded by landed security [rentes] were akin to interest on monetary advances. Church doctrine offered an array of rationalizations for collecting interest in the form of rents. By projecting sin upon the Jews, churchmen fueled French borrowers’ anti-Semitism and distracted their attention from equally vigorous Christian lending.

5.6 The Market for Christian and Jewish Loans

A preserve of devout Catholicism, the Alsatian council moralized about commerce and hectored Catholics who practiced usury.55 Indeed, the sovereign council acknowledged that

… several Christians of this province practiced Judaism [i.e., loaned on interest] to … their brethren, and by shameful commerce earned income from them, not [routinely] by entering usurious transactions, but rather by becoming subrogated to the Jews’ claims against Christians, … persons of great stature fell into this category, and … many Christian usurers became a thousand times more barbaric than the Jews themselves (italics added).56

To divert attention from Christian usurers, the council prohibited Jews from acquiring Christian debts and transferring Jewish debts to Christians. These transactions (“subrogations”) disguised Christian lenders who did not wish to identify themselves directly to borrowers. In a typical subrogation, a second lender acquired a loan by paying the original lender, probably at discount, and succeeding to the latter’s rights against the borrower. The borrower, typically unaware of the subrogation, might have continued to pay his original lender (the subrogor), who could then have remitted the funds to his subrogee, the acquirer of the debt, who stood in the shoes of the original lender. As long as payment streams flowed punctually, subrogations typically concealed numerous links between an ultimate Christian lender and the original parties to the transaction. Eventually, there emerged a chain of subrogations with undisclosed lenders at the end of the chain. Although the prohibition on Jewish subrogations drove many transactions into the shadows, it did not extinguish them or the financial need that prompted them.

To circumvent the prohibition on subrogation, Christian and Jewish lenders also relied on the prete-nom (“loaned name”), an institution that contemplated secret trading by a Jewish lender behind a Christian’s public identity. This transaction type seems to have flourished in the Recueil Juifs, under the rubric “interposed name.”57 Ironically, the prete-nom constituted an overreaction to lending at interest between Christians and Jews. Though Scripture did not condemn lending at interest between a Jew and a Christian, it forbade Jews to lend at interest to their brethren, i.e., their coreligionists, and Christians to theirs.58 Scripture did not bar loans documented in the form of the prete-nom.

6 Council Standard for Oath More Judaico

For rejecting Christ, Jews were vilified by churchmen as avaricious tricksters. On the Church’s view, a Jew could redeem himself by recognizing the error of his ways, converting to Christianity, and helping the Christian flock redeem other Jewish sinners. Alternatively, by persisting in their ways and stubbornly rejecting Christ, Jews forfeited their salvation. The council’s formulation of the oath more judaico evoked an inquisition more than a civilized inquiry.

6.1 Oath More Judaico

Because Jewish law prevented a Jewish witness from swearing an oath on the Christian Bible, the magistrates of the Council of Alsace, as if to advertise their devoutness and to emphasize the Jewish witness’s presumed dishonesty, ordered him to swear an oath more judaico. Likely inspired by Charlemagne in the tenth century, this oath “was the rule in Europe from the early Middle Ages until the eighteenth century and in some places persisted even later.”59 The oath’s formulation was calculated to humiliate a Jewish witness and to impress upon him penalties for perjury.

Accompanied by congregants, a Jewish litigant was typically ordered by a French magistrate to swear his oath in the synagogue before the Torah. The litigant chanted from the Torah and recited the Shema. Then the rabbi harangued the prospective witness about the evils that would befall him if he lied. In French magistrates’ anti-Semitic orders, the theatrical texture of the oath – a rabbinic harangue, swearing upon the Torah before congregants – made it a self-imposed curse, entailing detailed punishment if it were falsely taken. Strengthening the curse, “the ceremony and symbolism also highlighted Christian suspicions of the Jew and a wish to humiliate him.”60 Echoing a French magistrate’s imperious directive, the Recueil Juifs kowtowed to Christian stereotypes of Jews by instructing rabbinical judges on administering the oath more judaico:

The judges, before hearing witnesses, must explain to them the importance of the oath, the horror of false testimony, the unhappiness that follows it, the penalties that God imposes in this or the next life; the opprobrium resulting, even in the spirit of the suborner; finally God, like truth itself, cannot let falsehoods go unpunished; and thus … the witnesses ought not disguise [the truth] nor conceal it. One who disguises or withholds the least thing in his testimony is guilty of sin.

Recueil Juifs art. i–iv, pp. 34–35

French officials sometimes expressed distrust of a Jewish witness who did not swear upon the “koscher Torah,” and they condescendingly praised the oath more judaico. We cannot dismiss the possibility that the oath was a cynical ploy aimed to humiliate a witness. The Council of Alsace (1739) required a Jewish witness to swear the oath “en langue vulgaire” [French] before the oath-taking rabbi. But, said the French courts, the oath had drawbacks [inconvenients] and required special concessions and arrangements (Recueil Edits, p. 209). Because criminal statutes obliged a French judge to administer the oath, the rabbi’s replacement of the judge did not conform fully with the regulations.

The oath also entailed practical and financial disadvantages. If the oath was to be administered at some distance from the rabbi’s residence, then his expenses, payable from public coffers, would have resulted in considerable taxes upon the entire locale. Furthermore, since few rabbis were authorized to administer the oath, an authorized rabbi might have to travel to several places over a day or two. Perhaps such a journey excessively burdened the rabbi. In one case, an elderly rabbi persuaded the council to appoint delegates to administer oaths more judaico in his stead (Recueil Edits, p. 329).

6.2 Blood Accusations

As hallmarks of anti-Semitism, blood accusations converged with well-poisoning and host-desecration. The blood accusation stemmed from a belief that Jews kidnapped and murdered Christian children in order to use their blood in religious rituals, and especially to bake into matzot. An Alsatian version of the blood accusation appeared in a case report detailing the prosecution and execution of a Jew accused of having murdered a Christian child. Amid a macabre narrative characteristic of inquisitors, not judges, the court reported that the accused had carried several promissory notes (the proceeding had nothing to do with their enforcement). Evidently the judges mentioned the notes because they betrayed a number of “sinful” badges that resonated in Christian condemnations of Jews. Written in Hebrew characters, promissory notes in Judeo-German reportedly concealed fraud and usury. In truth, French officials were likely pleased to read them in French; perhaps French investors could have purchased the notes and quietly enforced them in French courts. For translations of the promissory notes, the court recruited Jewish converts eager to do the “Lord’s work” by unveiling Jewish chicanery. But no evidence of chicanery was identified. Likened to a sorcerer, the kidnapper refused to convert, proving his soul could not be redeemed.

6.3 Alsatian Council Implicated in Kehillah Administration

Inspired by churchmen who feared Jews would convert Christians by luring them to their celebrations, French regulations had long forbidden Jews from public worship and holiday observance. Some regulations enjoined Jews to remain indoors during Christian celebrations and to keep their synagogue doors closed, lest Christians be attracted to Jewish worship.61 Churchmen and royal officials, instead policing the kehillah’s activities, charged a community-elected administrator [syndic; parnas] with monitoring interactions between French authorities and the kahal. The parnas assured order in synagogue assemblies, monitored Jewish transactions within the province, and convened Jewish leaders to designate their cantor. Royal lettres patentes interfered in kehillah governance by obliging the parnas to stop trouble within the community62 and to fine kehillah members guilty of chronic misconduct. The parnas also carried out royal orders for collecting the community’s taxes and levies for residential privileges. Subject to a commissaire’s oversight,63 the parnas collected the kehillah’s self-imposed levies for the poor, as well as salaries and expenses for Hebrew teachers.

The Alsatian council’s monitoring function sometimes required its intrusion into kehillah administration, including appointment of kehillah officials such as the rabbi and parnas. For example, the council confirmed the royal appointment of Samuel Weil as rabbi of Upper Alsace and recognized his jurisdiction over controversies and ceremonies prescribed by Jewish law (Recueil Edits I, p. 365). His jurisdiction broadly embraced kehillah members’ disputes, including taxation for Jewish education and the synagogue. In one ruling, a parnas seems to have demanded from a kehillah member a payment in excess of the latter’s means. On oath, the debtor produced evidence of his meager financial wherewithal. The cantor of the kehillah denounced the parnas’s unyielding demands, but the latter continued to importune the member with threatening letters. To pressure the member, the parnas threatened to bar the kehillah’s kosher butchers from delivering him their product. The parnas’s imperiousness likely reinforced the magistrates’ prejudices against Jews. According to the council, the parnas’s aggressive communication constituted a vexation worthy of judicial censure [“une vexation digne de l’animadversion de la justice”]. As if to evoke the rescue of a vulnerable Jew from a stereotypical Jewish money grubber, the council enjoined the parnas’s oppression of the taxpayer and sharply reduced his contribution. It ordered the community butcher to continue his delivery of meat for the community member (Recueil Edits I, p. 161).

6.4 Ostracism: Excommunication and Herem

To evoke Voltaire’s pejorative, the Church deemed Jews infame, i.e., worthy of social ostracism. Designating a Christian’s punishment for committing heresy by rejecting God, the term infame resonated in doctrines of Christian excommunication and identified punishments for offenses other than heresy.64 In Jewish law, herem was akin excommunication. The term could also identify a rabbinic contempt citation that a Jewish party could have purged by complying with the rabbi’s order.

Inspired by Gregorian reforms, the Fourth Lateran Council (1215) codified regulation of excommunication and applied its standards to heretics and blasphemers as well as secular princes and prelates who defied the pope. From the reign of Innocent III (ca. 1200), excommunication, a dreaded papal instrument, swept Christendom and gripped Christian imaginations. A secular prince’s lofty status did not immunize him from papal condemnation for having disobeyed papal injunctions or Church doctrine. Once exiled from his spiritual community, the Christian offender could not expect his subjects’ allegiance in the secular realm. His return to the fold required his contrition and clerical absolution.65 As devout Catholics, French judges were likely attuned to well-publicized excommunications of prelates and kings. They probably envied excommunication as a spiritual instrument, for it denied even Christian princes the usual comforts of the faith and compromised his rule over his realm.

In pre-revolutionary Alsatian jurisprudence, the theme of Church excommunication resonated in leitmotifs of social ostracism. Concepts of excommunication migrated into a French court’s review of a rabbi’s order of herem. If Church excommunication branded an offending Christian a reprobate and denied him confession, last rites, and burial in sacred ground, then herem banned a Jew from the synagogue and denied him a proper religious burial and even kosher food.

French judges characteristically analogized excommunication to a rabbinical judge’s ostracism of a violator of an arbitration ruling. Although the magistrates knew little about Jewish doctrine that underpinned herem, they displayed few reservations in imposing the punishment. French judicial imaginations transformed the Jews’ presumed obstinacy toward Jesus into grave sin. If excommunication was pronounced on a disobedient Christian, so went Christian logic, then the Jew’s recalcitrance warranted a similar penalty from a French court. Some of the most celebrated rulings of the Alsatian magistrates concerned Jewish excommunication.

Jordan Katz has illustrated the beit din’s competition with the Parlement in a case that centered upon a Jewish woman’s excommunication. In the proceeding, initially a beit din controversy over an insufficient dowry for Magdeleine Cahen, the kehillah syndics, suggesting that Magdeleine was delusional, threatened to excommunicate her for refusing to accept a reduced amount. On Cahen’s appeal to the Parlement, the latter instructed the kehillah – at Cahen’s request – to issue a decree in synagogue stating that she had not been excommunicated and that the Jews should help her assure the proper execution of the Parlement decision. For the Parlement, the case highlighted several aspects of Jewish law, including dowry, excommunication, and the duties of parnassim and tutors. Emblematic of a rivalry between the beit din and the Parlement, the Cahen ruling underscored the Parlement’s wish to prove that it could defend individual Jews against the beit din’s perceived abuse of power.66

Long a figure of French jurisprudence, Jewish banishment was still imposed at the dawn of the revolution. For example, the monarchy continued to exercise rigorous control over Alsatian Jews by threatening Jewish banishment. A Jew residing in Alsace was denied the right to contract a future marriage without official permission on penalty of being expelled from the province for violation. A rabbi who officiated at a marriage not approved by French officials risked a fine of 3000 livres, and if the rabbi did this a second time, he would be expelled from the province. Legitimately married Jews, if they had recently converted, could not remarry unless they were widows or widowers. All such marriages were null and children of the marriages considered bastards.67

6.5 French Magistrates as Lieutenants of the Church

Though Alsatian magistrates characteristically exercised secular jurisdiction, they also ruled on religious issues and adjudicated rights of both Christian and Jewish parties. As evidenced in the Cahen litigation, the Parlement specialized in Jewish excommunication, perhaps because it touched issues that likely showcased their devotion to the Church.

6.5.1 Excommunicating a Cleric; Characteristic Anti-Semitic Ruling

The Alsatian Council’s archives featured reports on clerical excommunication alongside sulfurous anti-Semitic bans upon Jews. In one breath, for example, French judges (Jan. 17, 1670) seem to have succumbed to royal pressure by recognizing an arch-episcopal excommunication of the abbess of St. Pierre (Recueil Edits II, pp. 555–556). Royal grievances against her rested upon her recruitment of conventual candidates who were not subjects of the French crown. In its next collective breath, the Council ruled “against a Jew accused of kidnapping and murdering a Christian infant on the road between Metz and Boulay” (Recueil Edits II, p. 554). The Council’s ruling against the accused kidnapper rhetorically fostered anti-Semitic turmoil in the society. His steadfast refusal to convert was said to prove that he was spiritually irredeemable. In strokes evocative of the martyrdom of Joan of Arc, the ruling celebrated the Jew’s immolation beside the church and dispersion of his ashes to the wind (Recueil Edits II, p. 554). The judicial description of the execution likely burnished the judges’ credentials among churchmen and royal officials.

According to the ruling, the kidnapper held promissory notes composed in Hebrew and Judeo-Germanic characters (Recueil Edits II, p. 554). In a pretext for accusing Metz Jews of financially ravaging Christian society, a French tribunal summoned Jewish converts to translate the defendant’s financial instruments. A prelude to orders of Jewish banishment for having brought Jewish settlers from Germany and Holland, the translations were principally linked to the alleged kidnapping the purpose of Jewish caricature. The Jewish “intruders,” complained the court, had swelled to two hundred families. For having “oppressed local Christians with usury and illicit commerce” (Recueil Edits II, pp. 554, 576) they were banished in perpetuity from Metz.

6.5.2 Alsatian Council’s Interactions with Rabbinic Tribunals Council’s Political Sovereignty of Alsatian Council and Its Dilution of Rabbinic Authority

By psychologically compartmentalizing anti-Semitic conduct, Alsatian Jews likely facilitated French magistrates’ grudging cooperation with the beit din. In nearly all respects, the French tribunal was superior to the beit din. This superiority was clear in cases that involved Christians, even tangentially. For example, a beit din’s seizure of a Jewish groom’s assets in the hands of a Christian debtor68 does not indicate the nature of the assets; but they probably consisted of an unpaid purchase price for goods already delivered, a rental stream from a lease, or perhaps accounts receivable in respect of the groom’s services. In any of these instances, the French tribunal might have ousted the beit din’s jurisdiction because a Christian debtor figured in a suit originally in the beit din’s competence (Recueil Edits, p. 440).

In the Recueil Juifs, several procedural norms highlighted the council’s vaunted superiority over the beit din. On refusing to comply with a beit din’s arbitral ruling, a party could have commenced a new action in the Bailliage, a French court of first instance, “as if no proceeding had occurred before the rabbis.”69 Furthermore, a compromise was appealable to the Parlement or the Presidial (Recueil, appendix, art. iii, p. 2). Upon appeal, a reviewing French magistrate either overruled the arbitral order or validated it and rendered it executory. By 1753, Alsatian magistrates entertained disputes among Jewish litigants even though they had not joined issue initially in the beit din (Recueil Edits, p. 419). In 1767, the Alsatian council conditioned execution of a rabbinical judgment on a French judge’s approval. Inspired by Jewish ethics, the Recueil Juifs annulled a rabbi’s authority if he was related to the petitioner by marriage. Following the Recueil Juifs provision on a rabbi’s disqualification by virtue of marriage, the Alsatian Council authorized a petitioner altogether to by-pass the beit din and present his complaint directly to a French tribunal (Recueil édits, p. 219). French Courts’ Cooperation with the Beit Din

Despite French magistrates’ vaunted superiority over rabbinic judges, they frequently had motivation to help Jewish courts enforce their rulings.70 The motivation likely stemmed from the fact that a kehillah’s dependable self-regulation and peacekeeping frequently relieved pressure upon French police powers. French authorities protected the Jewish community’s commercial know-how and artisanry71 provided that the Jews kept their business records in French, not Hebrew.72 To illustrate the French courts’ sovereignty over the beit din, we earlier analyzed a case on a Jew’s steadfast refusal to pay a parnas’s assessment for the benefit of the kehillah. As we noted, the Jewish debtor appealed to a French court for an injunction against the parnas’s enforcement. Following prescriptions in the Recueil Juifs,73 a rabbi could perhaps have shamed or badgered a congregant into compliance. But in facing a rabbinical harangue, the debtor realized that his most helpful relief lay in the French tribunal. Recueil Juifs Influences upon French Tribunals

Though Alsatian magistrates did not characteristically acknowledge the guidance of the Recueil Juifs that they had commissioned, their jurisprudence occasionally relied upon it without citation.74 The Recueil’s prescriptions, for example, seem to have informed the French judiciary’s distinction between a major ban (herem) and a minor ban (niddui).75 A minor ban would have revoked an offender’s community privileges, including religious honors, e.g., being called to the Torah, leading prayers, and even exclusion from burial in sacred ground. For serious offenses like fraud, slander, and sexual immorality, the rabbinic tribunal likely ordered a major ban of herem.76 The Recueil Juifs lacked a generalized regulation of excommunication, but French judges seem to have identified in the Recueil’s criteria for witness disqualification justifications for ostracism of a recalcitrant defendant. The Recueil specified that:

No Jew who has violated prohibitory rules of his religion, in committing acts that are absolutely prohibited, as well as precepts of the oral faith, can be a witness, unless he prove he has made good on his offense by penitence [author: analogous in canon law to contrition and absolution] required by the law; the same regulations apply to someone whose avarice or disobedience has prevented him from fulfilling the synagogue’s ordinances, if he has not been publicly declared a violator.77

Recueil Juifs, art vii, p. 27

The Recueil Juifs’ scheme for witness disqualification figured in the Alsatian council’s affirmation of a rabbinical judgment against a Jewish debtor. Among French cases under review, this decision was exceptional in the sense that it dignified the beit din and Jewish law and did not ridicule the Yiddish of the beit din ruling. The court’s rhetoric also reflected French courts’ penetration into Jewish norms and practices, as well as Yiddish terminology. Ordered to pay a debt recited in a promissory note (billet a ordre), a recalcitrant Jewish debtor denied liability. Adopting the beit din’s interpretation of several aspects of Jewish law, the French magistrate affirmed that the debtor had blasphemed against Jewish law (Loi Judaique) by tearing down a notice of ban against him that had been posted on the synagogue wall. After the original trial, the beit din enjoined kehillah members to enforce the ban, excluded the debtor from all communal assemblies (presumably including daily and Sabbath worship), and denied him kosher meat, identified by the French judges as kauscherfleisch. The Jewish butchers were threatened with fines for slaughtering animals for the debtor. During the pendency of the minor ban (niddui, as identified in the Recueil), the debtor was ordered to pay a daily fine of twenty sous, contributed equally to the seigneurie and the poor box. In the poor box, the French judge recognized the mode of collecting tzedakah for the community. If the appellant defied the ban for thirty days (for example, by renouncing the debt or by failing to satisfy it), then he was subjected to a major ban. The debtor, despite numerous official commands (sommations) to perform, steadfastly refused to do so. To punish the debtor for his recalcitrance, the French court affirmed the beit din’s denial of kosher meat, and then subjected him to the major ban (herem). Rabbinical Functions Akin to Notarial Functions

As a Hebrew expert, a rabbi fulfilled functions like those of a protonotarius (i.e., senior secretary of an imperial administration) or tabellionis, historically, a secretary in a church tribunal or clerical order. He drafted, interpreted, and authenticated legal documents for illiterate congregants. Because the rabbi could have administered a Jewish oath to parties to loan transactions, he functioned as a notary public. According to Recueil Juifs, “when a debtor has paid a sum, … the creditor can demand of the rabbis an act showing the amount still due according to the original act, or to have the debtor execute a new act” (Recueil Juifs, art. 1, p. 117). Validated by the rabbi, registration of transactional memorials in the synagogue gave public notice of interests in property. A French magistrate would perhaps have found in the Recueil’s description of rabbinical expertise and rigor the trustworthiness of a prudent court official (Recueil, art. xvi, p. 53):

To judge the validity … of dispositions in a will, the entire thing depending on different letters and words, punctuation, [and] accent of the Hebrew, what cannot be expressed in French, the science, experience, and wisdom of a judge being the features that lead him to a just decision of the case requiring a scrupulous examination by the judge of the Hebrew act…. Further Reflections: Influences of the Recueil Juifs upon French Jurisprudence

In characterizing as symbolic French officials’ reliance on the Recueil Juifs, Professor Berkovitz might have underscored more definitively the collection’s practical role as a user’s manual for French authorities bent on understanding Jewish commerce and loan documentation. The Metz Parliament’s records of 1748 attested to incorporation of Jewish law into the jurisprudence of the French polity.78 French magistrates did not cite the Recueil’s regulation of the Jewish oath, but the collection probably informed French judicial instructions to Jewish litigants. As we have argued, Jewish regulation of witness disqualification likely influenced French judicial understanding of rabbinical excommunication and social ostracism. French officials did not indicate why they did not cite the Recueil by title and page. Perhaps the French judges feared that their direct citation of the Recueile would have facilitated reversal based on an erroneous interpretation.

The French historian Paul Viollet confirmed the penetration of Jewish law into French jurisprudence. In the Jewish practice of kinyan sudar (attouchement du manteau, grasping the kerchief), Viollet correctly identified an analogue to the French doctrine of cause.79 According to Les Pandectes Francaises, a French legal encyclopedia whose title proclaimed its Roman inspiration, rabbinical law prescribed four conditions for the validity of a sale, including the purchaser’s payment of the price to the seller. Partial performance and partial payment evidenced the parties’ serious intention to be bound. According to Maimonides, observed the Pandectes Francaises, kinyan sudar functioned like the parties’ formal and binding writing. “The Jewish community of Metz retained until the end of the ancien regime a characteristic formality; contracts were perfected only by attouchement du vetement, … [Quinian zouder].”80 According to the Recueil Edits, a French magistrate evoked the rite of kinyan sudar without so identifying it, affirming a rabbinic order by saying, “Lest the Jewish litigants’ oaths be in vain, it must be accompanied by their joint grasping of a ‘bande’ according to the Jewish practice in like ceremonies” (Recueil Edits, p. 210). French Council Invades Beit Din Jurisdiction; Lifting Rabbinical Ban; Imposing Ban on a Rabbi

The Alsatian council’s powers included both lifting a rabbinical ban and imposing a ban upon a rabbi (Recueil Edits, pp. 219–220; 365). In one case, the council scolded a rabbi and prohibited him from executing his sentence before its delivery to the defendant (Recueil Edits, pp. 219–220). In an anti-Semitic flourish, the court branded the rabbi a “despot” because he ”brooked no contradiction” (Recueil Edits, pp. 219–220). The French judges diminished the authority of the rabbi’s ruling by charging him with having prematurely issued a “shadow [fantome] judgment” (execution premature; Recueil Edits, p. 220). The alleged judgment, “both irregular and unjust, betrayed intrigue in secret instructions:”

… the purpose of all of this red tape [was] to vex the defendant, whose only crime involve[d] failing to subscribe blindly to the imperious rabbi’s unjustified arbitrariness. This monstrous proceeding [has subject[ed] [the defendant] innocently to the community’s opprobrium; the judgment of a rabbi, despite these inviolable rules [de ces regles inviolables], has condemned the appellant without a hearing, and the condemnation has been executed without previously being delivered to the defendant. To halt these vexations, he comes to the Council, … the ban is lifted pending the council’s further orders”.

Recueil Edits, p. 219

7 Precarity: Jewish Mobility and Eviction

A talisman of Jewish redemption, God’s promise of a Jewish homeland had gripped Jewish imaginations from antiquity. If, as the chosen people, the Jews were supposed to have their own homeland, then Christian doctrine taught that the Jews’ rejection of Christ had extinguished the promise, warranting crusader armies’ claim of the holy land for Christ and his followers. According to a Christian polemic, the extinguished promise endured in the precarity of Jewish possession of land, a badge of the Jews’ humiliation. French jurists seized on this polemic to inspire Jewish regulation. According to Merlin:

the Jews do not belong to the human assembly that constitutes the polity. Condemned by the eternal oracle to wander the earth, lacking a king, a magistrate…. and a permanent [abode], the [Jews] are everywhere foreigners; their refuge, wherever they choose, depends on suffrage; [for] they cannot live anywhere unless by agreement with a seigneur who accords it to them.81

Jewish reliance on seigneurial caprice resonated in prerevolutionary Alsatian edicts. According to an Alsatian ordonnance (1762), no Jew was considered domiciled if he did not currently reside at a place he claimed as his domicile, by ownership or lease attested by valid document, a right of protection for which he had paid the king and the seigneur. Other Jews, if they could not satisfy the above requirements, were ordered to leave on pain of arrest and fines like those applicable to vagabonds and beggars (Recueil Edits, p. 631). The ordonnance also prohibited rabbis from lodging Jewish beggars and vagabonds and granting a permit to a Jew if he did not prove his business with authentic and official documents that attested the Jews’ names, qualifications and payment of tolls for their entry (Recueil Edits, p. 631). In assimilating Jews to serfs and crown chattels, an abundance of decisions restricted Jews’ mobility. Some cases upheld a seigneur’s ouster of a Jew from his birthplace, which, argued the judge, the Jew had claimed “unjustifiably and audaciously” [injuste et temeraire] because his father lived there before him (Recueil Edits, p. 402). Other rulings evicted Jews from tenements in which the seigneurs did not want them to live (Recueil Edits, p. 461).

Merlin’s portrait of Alsatian Jews as rootless serfs informed his essays on the Jewish community. His themes orbited around Jewish homelessness; royal and seigneurial rights to receive and expel Jews without notice; discrimination against Alsatian Jews as foreigners, beggars, and vagabonds; and royalties Jews owed for a residence permit.82 For example, the bishop of Speyer charged local Jews a habitation tax for living in his bishopric (Recueil Edits, pp. 469–473). An Alsatian Jew was allowed a modest home but denied other realty.83 Judicial decisions routinely ordered Jews to dispose of all realty other than their domiciles, either privately or by auction. An invidious feudal norm, the Retrait sur les juifs authorized a Frenchman to confiscate Jews’ realty on the ground that these “rapacious traders” relied on their religion to dupe hapless Christians.84 A typical decision of the Alsatian council enjoined further Jewish acquisition of immovables in the town of Wintzenheim (Recueil Edits, pp. 90–92).

Emblematic of the precarity of Jewish life, Alsatian judgments and ordonnances denied Jews the right to share a common courtyard with a Christian, lest “the Jew see everything the Christian cooked on his stove” (Recueil Edits, p. 288). Alsatian ordinances fined a Jewish violator of this prohibition unless he promptly sold his landed interest. The prohibition was likely inspired by a traditional Church ban against Jews’ fraternizing with Christians, lest they convert to Judaism. As the court maintained, “the purity of the Catholic faith would be offended by the Jew’s presence under the same roof” (Recueil Edits, p. 288). A Jew was disadvantaged if he had to sell his fractional interest; from the likely buyer, his co-owner, he would have received a trivial price. There would have been little competition for the fractional parcel, because only the current co-owner, wishing full ownership, would have had a serious interest in acquiring it. The French court concluded that the Jew had temporized in order to perpetuate his stay in the house, inviting further fines until he sold his interest. Purity of the faith also inspired a prohibition on Jews’ hiring Christian workers, lest they be persuaded to convert. However, Christian domestics who worked in Jewish homes were exempted from the ban, provided they did not assist in Jewish ceremonies and services (Recueil Edits, p. 711).

In another case (May 31, 1747), the same theme of spiritual contamination resonated in accusations of Jewish gorging on Christian real estate. To protect local Christians’ continued possession of their property, the court granted a Christian a preference over a Jew who had acquired property at auction. Judicial attacks on Jews frequently evoked the economic context for this preference:

Forced to resort to Jews’ purses, peasants’ houses and other immovable are commonly seized. There is an infinity of examples of these unfortunate victims of rapacious people who think their religion has authorized them to dupe … them [the peasants]. These Jews … purchase the houses, … obligating Christians either to leave their birth place and find asylum elsewhere or to lease the houses back from the Jews; the consequences … will be ruinous for the inhabitants of the province.

Recueil Edits, p. 289

7.1 Synagogue Regulations

The nerve center of a Jewish community, the synagogue served as a sanctuary for worship, an assembly house for the kehillah, and a school for religious education. A symbol of the kehillah’s hopes for longevity, a functioning synagogue fixed community expectations of residence. Because Jews walked to the synagogue on festivals and the Sabbath, French officials sought to block Jewish settlements by denying the kehillah’s right to build an easily accessible synagogue.

To Christian persecutors, a smoothly functioning synagogue was emblematic of a kehillah’s prosperity. No wonder the establishment of synagogues prompted anti-Semitic outcries. For a kehillah, a French official’s demolition order for a synagogue and his denial of a Jewish community’s permit for synagogue construction was calamitous. French officials surely appreciated the impact of royal orders for demolition of a synagogue (Recueil Edits, p. 3). In a scathing report, the royal procurer-general described the unauthorized construction of three synagogues in different towns that

the Jews had undertaken audaciously to have built on their own initiative at Wintzenheim, Haguenthal, and Biesheim. This scandalous and arrogant act shocked the Law, public order, and religion, and, acting on behalf of the king, the procurer general ordered the demolition and destruction of the synagogues, following which materials collected from the demolition site should be sold, the proceeds remitted to the Church and the Jews barred from building any more synagogues there.

Recueil Edits, pp. 2–3

For Alsatian Jewry, an order for synagogue demolition likely evoked humiliations endured by Jews of Jerusalem in 70 CE upon the Roman destruction of the Temple. Alsatian Jews may have recalled the transfer of Temple gold and the Menorah to the Roman Church and the cruel humiliation they endured in paying tribute to the temple of Jupiter in Rome.85 Alsatian officials might also have recalled Jesus’s prophecy of Jerusalem’s desecration:

Jesus left the temple and … his disciples came to point out to him the buildings of the Temple. But he answered them, “You see all these, do you not? Truly, I say to you, there will not be left here one stone upon another, that will not be thrown down.” As he sat on the Mount of Olives, the disciples came to him privately, saying, “Tell us, when will this be, and what will be the sign of your coming and of the close of the age?”

Matt. 24:1–3

Biesheim Jews tacitly conceded the legitimacy of an official ban on a new synagogue; but they argued that theirs was not a new construction. Likely intensifying the council’s anxieties over a growing Jewish presence, the Jews instead argued that they had merely expanded the building to accommodate their kehillah.86 Furthermore, as the Jews protested, the local judge had not objected to the expansion, even though he had known about the development for three years. Haguenthal’s Jews argued that they had moved their synagogue from one place to another but had not constructed anything new (Recueil Edits, p. 3). If, so went the Jews’ argument, the king had promised the Jews tolerance and protection, then impliedly they had a right to gather and worship together. The rights accorded local seigneurs tacitly implied the Jews’ right to construct buildings to accommodate a growing kehillah. According to the last reported entry in this case, the king received the opinions of the procurer-general, the local seigneurs as well as Jewish oppositions to the synagogue demolitions. A royal counselor reported the submission of the controversy to the Alsatian council. But as frequently occurred in these case registers, the Recueil Edits reported no conclusion of the fragmentary case.

7.2 Resonances of Church Regulation of Synagogues in Royal Policy

The royal policy of demolishing synagogues echoed early church regulations of Jews.87 For example, the Third Lateran Council (1179), probably to stifle conversions and intermarriages, forbade Christians and Jews to live together. It also banned construction of new synagogues, allowing “repair of old ones … but not their beautification” (March 29, 1670). Reacting to the church’s fear of losing congregants to Judaism, royal officials forbade Jews to worship publicly at home and to leave their quarter during holy week. They were allowed to worship at the Metz synagogue only while the doors stood open. Evocative of a traditional anti-Semitic accusation against Jews of having tampered with the host and Church relics, the procurer general accused a Jew of blasphemies against Christ by depositing a crucifix in the synagogue. To further humiliate the “offender” and boast of the Church’s victory, the Court ordered him to pay fines to the hospital of St. Jacques and the king (Recueil Edits II, p. 574).

7.3 Royal Courts Promote Church Interests by Circumventing Jewish Law

7.3.1 Alimentary Pension

Jewish repression was especially insidious when an official’s actions were cloaked in religious doctrine. A number of French rulings celebrated Jewish conversions to Catholicism, especially when the reward for a conversion was extracted as charity from a Jew’s purse. For example, a royal decree suspended the debts of a Jewish debtor who had converted to Catholicism for three years from the date of his attaining majority (Recueil Edits, p. 58). Another ruling turned the Jew’s loss into the church’s gain and bolstered a judge’s image as a devout Catholic. Born to Jewish parents, the petitioner was raised as a Jew until twenty years of age. According to the court, he then saw “the error of his faith,” converted to Catholicism, and left his parents’ household. Unable to survive without his parents’ support, he sued for an alimentary pension (i.e., an allowance). Outraged by his son’s conversion, the father refused to pay. To bolster the judges’ images as devout Catholics who enthusiastically did the Church’s work, the council roundly condemned the delinquent father for “having acted out of the cruelest vengeance; the laws of nature obligated the father to nourish the son” (Recueil Edits, p. 754).

7.3.2 French Court Orders Delivery to a Convert of Share of Jewish Estate

Around 1700, the Metz Parlement prohibited a Jew from disinheriting a child who had converted to Christianity.88 It allocated the child a share of a Jew’s succession property on parity with his siblings. Promoting the Church’s interests, the ruling also codified a royal requirement that illegitimates be raised as Christians, irrespective of the parents’ religion, on the basis that the children belonged to the monarchy, and Catholicism was the national religion. According to the decision, “nothing should deprive a child of the privilege of the sacraments; and once he is baptised, the parents’ marriage cannot change his religion to Judaism” (Recueil Edits, p. 763).

7.3.3 Divorce

To benefit the Church, clerics urged French congregations to stymie Jewish practices and vindicate Catholic doctrine.89 Church treatises upon Jewish regulation of divorce justified granting a divorce to a Jewish convert to Christianity on the basis that he would be freed of a “tenebrous” existence (recalling Genesis’s description of tohu-vohu, the chaos preceding creation) with his infidel (i.e., Jewish) spouse.90 Inspired by Church doctrine, prerevolutionary French jurists made a specialty of Jewish divorce. Although for Christians marriage was indissoluble before the Code Napoleon (1804), churchmen justified divorce for a Jew newly converted to Christianity, apparently because this would likely prompt him to remarry a Christian and enlarge the congregation of the faithful. Christian persecution of counterpart monotheisms and a ruling in favor of a divorce resonated in the judicial phrasing of the key issue: Whether a Jew or a Muslim married in infidelity (i.e. according to Islam or Judaism), has since then had the good fortune to be called from the tenebrous domain into which he was plunged, may he remarry after his baptism if his infidel wife refuses to follow him and cohabit with him.91 The wife requested a get, so that she could remarry another man according to the Jewish religion. The French magistrate deemed the institution of the get illegitimate and ridiculed it as purposeless. Eventually, a priest, instructed by a local bishop, granted the Jewish convert a divorce; disregarding the indissolubility of marriage, the tribunal’s paramount concern was to liberate the converted spouse from an “infidel” spouse who had refused to live with him.

7.3.4 Regulation of Eruv

In 1770, a French magistrate ordered the Jews of Zillisheim to remove three barriers they had erected within the town’s confines. The Jewish community argued that the barriers fulfilled Jewish law; unfortunately, the specific Jewish law was not identified. I speculate that the barriers constituted an eruv that facilitated Jews’ movements on the Sabbath (Recueil Edits, pp. 869–870). In 1768, a French magistrate also prohibited the same Jewish community’s conversion of a tract of land into a cemetery (Recueil Edits, pp. 807–808).


Earlier we contrasted the internal life of the Metz kehillah with the Jews’ dystopic experience under French officialdom’s yoke. By adhering to the rabbinical injunction against litigating in gentile courts, Jews made apparent their expectation of solace in rabbinical compassion and expert understanding of Jewish law. Such rabbinical virtues bore spiritual rewards embodied in Pinkas jurisprudence. Jewish litigants, though cautioned by the rabbis to resolve their disputes in house, increasingly preferred French enforcement mechanisms even when accompanied by anti-Semitic rhetoric.92


For the rabbinic ban’s scriptural sources, see Jay R. Berkovitz, Protocols of Justice: The Pinkas of the Metz Rabbinic Court, 1771–1789 (Studies in Jewish History and Culture 44; Brill Academic Publishers, 2014), vol. 2, pp. 36–37. For further background on the rabbinic injunction, see Shael Herman, “Protocols of Justice, The Pinkas of the Metz Rabbinic Court 1771–1789,” in Review of Rabbinic Judaism, vol. 19 (2016), pp. 295–296.


To celebrate a golden age of the community, a taqqanah (1710) supposed that all Jews respected the rabbinical ban and the beit din’s authority. The taqqanah suggested that suing in a secular court was immoral, though not legally prohibited; lamented the rise of non-conformists (poretz geder) who resorted to secular courts; and promised that any poretz geder would be damned by the Torah’s curses and oaths. Beyond ostracism and shame, the rabbinical curses imposed little tangible penalty. Jordan Katz, “‘To Judge and to Be Judged:’ Jewish Communal Autonomy in Metz and the Struggle for Sovereignty in Eighteenth-Century France” (Undergraduate thesis, Columbia University; 2011), p. 18. I wish to thank Professor Jay Berkovitz for sharing this thesis with me.


Jay Berkovitz, “Common Ground: The Metz Beit Din and the French Judicial System,” in Early Modern Workshop 2012: Cross-Cultural Connections in the Early Modern Jewish World ( For French courts’ promotion of an illusion of Jewish citizenship, even after Jewish emancipation, see the Coblentz decision, n. 61.


H. Maine, Dissertations on Early Law and Custom (London, 1883), p. 389.


Recueil Juifs, art. vi, pp. 17 (“L’accommodement des parties etant une bonne oeuvre …”).


Recueil Juifs, art. xxii, p. 23. “Once the judgment is rendered, and [if] the condemned party refuses to acquiesce [in it], then he is put under ban … and is summoned to comply, … if thirty days after the first summons he refuses to perform, then [the court] proceeds against him by excommunication” [author’s translation]. Excommunication’s prominence as Church punishment likely increased the frequency of herem in the beit din. Sometimes penances inflicted on excommunicated Jews were modeled on Church practices. Israel Abrahams, Jewish Life in the Middle Ages (Philadelphia: Jewish Publication Society of America; 2009), p. 53. For “herem” as both communal anathema and a beit din order akin to an injunction to litigate, see S.E. Karesh and M.M. Hurvitz, “Herem,” in Encyclopedia of Judaism (New York, 2005), p. 205.


R.J. Pothier, Oeuvres posthumes de M. Pothier, Traites de la Procedure (Paris, 1778), vol. 3, pp. 121–122.


Recueil des édits, déclarations, lettres patentes, et ordonnances d’Alsace, vol 2, 1726 = 1770 [ed. M. de Boug, 1775, Colmar], p. 309 [hereinafter Recueil Edits II].


Shael Herman, “Tout Fait Maison: A Law Code Crafted by the Eighteenth Century Jewry of Metz,” in Review of Rabbinic Judaism, vol. 21 [2018], p. 1, at n. 12.


See, for example, the third party seizure, nn. 32–34.


P.A. Merlin, Repertoire universel et raisonne de jurisprudence (5th ed; Paris; 1827), vol. 4, p. 647.


Avocats’ ruminations contributed to the tentativeness of a beit din ruling. An illustrative opinion speculated: “If the apotropsim refuse to pay him, then he is entitled to take them to the civil courts, but during the time he does not have trustworthiness in the civil courts, he may not claim anything, it is incumbent on the parties to ask two avocats…. On the basis of their opinion the matter of trustworthiness will be determined.” Berkovitz, “Finding Common Ground,” n. 3, p. 15. The court did not indicate whether the apotropsim were parties to this beit din proceeding, but they surely ought to have been parties if the ruling were to be fully effective. Furthermore, there seemed no order to the parties to seek recourse in a civil court. Assuming the parties had submitted their case to the civil courts, there was no way to predict the course of their civil proceeding, compel the parties to seek two avocats, require the avocats to render an opinion; nor the arguments in their opinion.


Berkovitz, n. 1 [companion volume], p. 56.


31 US [6 Pet.] 515 [1832].


Berkovitz, n. 1 [companion volume], p. 57.


J. Brissaud, A History of French Private Law (ed. R. Howell; Boston, 1912), vol. 3, p. 564. Pothier, pp. 276–286, n. 8. Beginning with the prelude to the Revolution and well into the revolutionary years, courts granted contrainte par corps. Maugeret, Traité de la contrainte par corps en matière civile de commerce etc. (Paris, 1808), pp. 31, 49.


Maugeret, n. 16, pp. 45–60. For contrainte par corps against a Jewish merchant, see idem at p. 46 [M. Wolff v. Robert].


For incarceration of a debtor and his release, see Maugeret, n. 16, pp. 56–60.


Ancien regime law afforded the creditor compulsory tools against a surety, i.e., physical constraint of the debtor himself and private distraint of his movable assets; in his turn, the surety invoked the remedy against his debtor who was held liable towards him in double the amount. Brissaud, n. 16, p. 578.


R.J. Pothier, n. 7, pp. 246–247 [Saisie reelle].


Coutumes générales de la ville de Metz et du pays messin, enrichies d’un commentaire (ed. Dilange, 1730); Metz, p. 387 [hereinafter: Coutumes Generales].


For regulation of seizures, see Recueil Juifs, articles v–ix, pp. 227–229; Tout Fait Maison, n. 9, pp. 16–18.


Pothier, n. 7, pp. 197–207.


For details of French collection procedure, see Pothier, n. 7, pp. 260–270. A patient creditor could also satisfy the balance of the indebtedness by periodically collecting fruits, rents, and revenues from the seized assets.


For litigation expense as a disincentive to litigating in the French courts, see Berkovitz, n. 1, p. 61. For the beit din’s more modest expenses as an incentive to suing in rabbinic court, and negotiating a compromise, see id.


Berkovitz, n. 1, p. 60.


See generally D. Palfreyman, London’s Inns of Court: History, Law, Customs, and Modern Purpose (2011).


Berkovitz, n. 1, p. 60.


Idem. at p. 57.


For beit din discipline of recalcitrant suitors, see infra “Estoppel,” Section D, v.


Berkovitz, n. 1, p. 85.


Idem. at p. 34.


Pothier, n. 7, pp. 166–167.


For seizure of an account (rentes), see Berkovitz, n. 21 non-recourse liability. “The creditors have against him [the heir] only a ‘real action’ for which the unique basis is his possession of the condemned debtor’s asset, and the action ceases if the [heir] abandons the assets [author: because the heir is not personally liable to the creditors];” Recueil des edits, declarations, lettres patentes, et arrets du conseil enregistres au parlement de Metz, Tome 5, 1788, p. 574, xvii (Recueil Edits I).


This section is based upon a French translation of the Metz Taqqanah reproduced in S. Kerner, “Le règlement de la communauté juive de Metz de 1769.” Annales de l’Est 24 [1972]; pp. 210–253.


Taqqanah de Metz, n. 35, art. 71, p. 231.


Compare, for example, the case of demolition orders for synagogues; as these orders issued from French officials and were subject to royal approval, the Jewish communities realized that meaningful relief lay exclusively in civil jurisdiction. See text infra at nn. 87–91.


Gavet, Sources de l’histoire des institutions et du droit francais; Manuel de bibliographie historique [1899], described as indispensable in a recent Dutch bibliography, “An Important Collection of Old and New Books, Standard Works and Periodical Sets” (Martinus Nijhof Press).


For medieval usury practiced by monastic orders, see Shael Herman, Medieval Usury and the Commercialization of Feudal Bonds (Duncker & Humblot, 1993), p. 27: “Church exemptions of crusaders from paying interest represented either … naivete, or in view of the church’s role as a main source of ready cash, disingenuousness, an attempt to consolidate a near monopoly. In neither case were the interests of the crusader best served, and in the later thirteenth century, in order to facilitate borrowing, some crusaders were prepared to renounce this privilege.” Christopher Tyerman, England and the Crusades (London, 1996), p. 197. In one transaction, by manipulating documents and figures, an abbey made profit over its investment of one hundred thirty-three percent spread over seven years – not a bad return for an age and an institution that frowned upon usury and in a deal with a crucader, who was supposedly immune from it; Tyerman, p. 197.


Katz, n. 2, p. 19.


Katz, n. 2, p. 24.


Like a proverbial bully who has urged a victim to advance only to ambush him in a blind alley, Napoleon bragged of having erected stumbling blocks against Jews’ entry into the social mainstream. In 1808, he disclosed to his brother, Jerome, that he “ha[d] undertaken to reform the Jews, but … not endeavoured to draw more of them into my realm. Far from that, [he] ha[d] avoided doing anything which could show any esteem for the most despicable of mankind.” For background on Napoleon’s chicanery toward the Jews, see “Tout Fait Maison,” n. 9, pp. 5–6.


For such fragmentary decisions, see infra at nn. 87–91.


For Jewish converts as official translators, see text at nn. 68–69.


Zosa Szajkowski, Jews and the French Revolutions of 1789, 1830 and 1848 (Ktav Publishing; New York, 1970], pp. 180–184.


Ernest Glasson, Précis élémentaire de l’histoire du droit français (Paris, 1904), pp. 489–491.


For fines of Jewish creditors for fraud, see Recueil Edits II, p. 74.


Tout Fait Maison,” n. 9, pp. 20–21.


P.A. Merlin, Repertoire Universel et Raisonne de Jurisprudence (5th ed.; 1828; Brussels), vol. 31, pp. 36–40.


Szajkowski, n. 45, p. 168.


Szajkowski, n. 45, p. 167.


Szajkowski, n. 45, p. 167.




For example, the Recueil Juifs sought to satisfy royal requirements without jeopardizing a Jewish lender’s control of a document. To validate a promissory obligation free of usury, witnesses had to attest that they had viewed delivery of the loan amount.


For collection of interest under the Metz customs, see Coutumes générales, n. 22, pp 221–224. [hereinafter, Coutumes Generales de Metz], ‘Lor de la redaction de notre coutume, les interets etaient permises au denier douze [author: an interest rate based on duodecimal measure and in common usage during the ancien regime]. [During redaction of the Coutumes, interest was permitted “a denier douze.”]. Idem. at p. 221. “By misfortune of war, … inhabitants of this town have become so impoverished for cash that, in granting constitution de cens [author: a form of secured loan] at five percent, the poor can get no relief for their needs; it is now ordered that they can be made at denier douze. Coutumes Generales, p. 221. Edict, 1669: The Jews of Metz exhaust our subjects by excessive usuries that they draw … on pretext of privileges” (Recueil Edits, I, p. 367).


P.A. Merlin, Repertoire Universel et raisonne de Jurisprudence, vol. 6, 3d ed. (Chez Garnery: Paris, 1808), pp. 586–587. An advocate made a similar argument on behalf of Wintzenheim Jews who faced expulsion: “Should all usurers be expelled from Alsace, he said, then not only Jews but uncircumcised usurers [Gentiles] would have to be expelled, because they ruined the people even more seriously than the Jews did.” Szajkowski, n. 45, pp. 157–159.


The prete-nom seems to have been widely accepted. For the Recueil Juif regulation of the interposed name, see Recueil, art. ix, p. 222. “For acquisition under an interposed name … the creditors should discuss the simulation as if it stood in the debtor’s name …” Id. For prete-nom transactions, see Szajkowski, n. 45, p. 168.


Shael Herman, Medieval Usury and the Commercialization of Feudal Bonds (Berlin, 1993), pp. 19–22.


I. Levitats, “Oath More Judaico,” in Encyclopedia Judaica, 2nd ed., vol. 15, cols. 364–365. For forms of the oath from the Norman period onward, see F. Ashe Lincoln, “The Non-Christian Oath in English Law,” in Transactions of the Jewish Historical Society in England [1945–1951], vol. 16, pp. 73–76. For Jewish oaths among European nations, see J. Ziegler, Medieval Jewish Civilization: An Encyclopedia (ed. Norman Roth) (New York, 2003), vol. 7, pp. 482–483.


M. Merlin, n. 49, p. 36. For enduring judicial distrust of Jewish litigants, even after they had become French citizens, see the Coblentz decision, in which a Jew, although acknowledged to be a French citizen, had to take the oath more judaico: “The appellant invokes in vain his French citizenship which is not contested…. A Jew, though a French citizen, does not have the privilege of deceiving his fellow citizens, [a goal] that may be presumed because the plaintiff seeks to take his oath in a form that his religion does not require; this system would contravene healthy morality; it cannot be admitted into the administration of justice.” Idem. at p. 36 [italics added; author’s translation].


Recueil des edits, declarations, lettres patentes, et arrets du conseil enregistres au parlement de Metz, Tome 5, 1788, p. 574, xvii [cited in text as Recueil Edits II].


Merlin, n. 46, p. 582.


Guardian, royal receiver, or trustee; according to Pothier, the commissaire oversaw collection of movables. This function involved accounting, storage, and conducting auctions. Pothier, n. 7, p. 183.


For having invited foreign Jews to settle in Alsace, Aaron Block was declared infame, severely fined, imprisoned in the conciergerie, and eventually banished. Recueil Edits I, p. 852.


Section 27 of Dictatus Papae [Dictates of the Pope] empowered the pope to punish a heretic or a despotic ruler by dissolving his vassals’ bonds of allegiance and inciting them to revolt against him. At the Fourth Lateran Council (1215), the Church’s anti-heresy policy was enlarged to condemn Christians as well as Muslims and Jews;


Katz, n. 2, pp. 33–34.


Merlin, n. 11, p. 581.


For seizures of payment streams, see n. 32–34.


Recueil Juifs appendix, art. ii, p. 2.


For this collaboration, see Berkovitz, n. 1, pp. 18–19.


By 1784, royal lettres patentes authorized the Jews to “faire la banque,” to engage in all sorts of business and manufacturing. Betraying a French desire to police Jewish activities, royal regulations ordered Jews to keep their records in French and prohibited them from using Hebrew. M. Merlin, Répertoire universel et raisonné de jurisprudence [5th ed; Paris; 1826], vol. 16, p. 247.


For restrictions on Metz Jews’ social and religious practices, see Recueil Edits, p. 575.


Recueil Juifs, art. i–iv, pp. 34–35; “Tout Fait Maison,” n. 9, pp. 21–22.


Paul Viollet, Histoire du Droit Civil Francais Accompagne de Droit Canonique et d’indications bilbiographiques, 3d ed., 1905., pp. 601–602. [Citing the Recueil Juifs as Coutumes et Usages des Juifs de Metz in MS, Library of the Law Faculty of Paris].


Berkovitz, n. 1, pp. 46–47.


The Recueil Juifs likened ostracism [herem] to excommunication, but without the penalties associated with church excommunication (art. vii, p. 27):

“The excommunicated and those who have violated prohibitions under pain of excommunication cannot serve as witnesses; nor those who obligate themselves by oath, not to take an action or do something else, in falsifying it. Those who, in whatever manner, make a false affirmation, and those who have sworn to do a certain thing, without having accomplished it, can be witnesses, if they have not violated their oath by a contrary act.”


In a classic case of herem, a pregnant woman charged a man with having impregnated her. The beit din ordered them both to address the court without legal representatives and imposed herem on them to emphasize its intolerance of promiscuity. Following its custom of putting a party at risk by having him secure his commitment with an escrowed deposit, the beit din then imposed a ban directly on the man, ordering him to marry the woman or make monetary compensation. He also had to deposit a sum with the kahal until the birth of the child, at which moment it would be determined whether the woman’s paternity claim was credible. If paternity was shown, the woman would receive the money; if not, the deposited money would be returned to the man. Because the beit din had no power to arrest a defaulting party, the rabbis employed the escrow to to put the man at financial risk and force him into a wager on his oath. Berkovitz, n. 1, p. 148.


For the proces verbal (i.e., the delegation’s official minutes), March 11, 1748 accompanying the deposit of the Recueil into the archives of the Parlement of Metz, see L’Univers Israélite: Journal des principes conservateurs du judaisme, pp. 184–185.


Paul Viollet, Histoire du Droit Civil Francais Accompagne de Droit Canonique et d’indications bilbiographique, 3d ed., 1905, pp. 601–602 [Citing the Recueil Juifs as Coutumes et Usages des Juifs de Metz in MS, Library of the Law Faculty of Paris].


Buxtorf, Lexicon Chaldaicum Talmudicum et Rabinicum 1859, Tome 1, 964, 1026, n. 97. “La communaute de Juifs de Metz jusqu’a la fin de l’ancien regime [manifeste] un formalisme tres caraterise, les contrats n’etaient reputes parfaits et consommé que par l’attouchement de vetement;” “Tout Fait Maison,” n. 9, p. 29.


P.A. Merlin, Répertoire universel et raisonné de jurisprudence: Ide-Légitima, vol. 6, p. 577.


Merlin, n. 81, p. 575.


Merlin, n. 81, p. 586.


P.A. Merlin, Repertoire universel et raisonne de jurisprudence (Bruxelles, 1828), vol. 29, p. 370.


Peter Schaefer, History of the Jews in Antiquity (New York, 1995), p. 132.


Szajkowski, n. 45, p. 189.


Shael Herman, “Legacy and Legend: The Continuity of Roman and English Regulation of the Jews,” in Tulane Law Review, vol. 66 [1992], pp. 1781, 1819–1823.


Inspired by Torah prescriptions, Jewish law traditionally barred disinheriting a child for any reason, including conversion. The incidence of forcible conversions of Jews throughout history made this an understandable norm; Shael Herman, “From Generation to Generation: Continuities of Jewish and Israeli Inheritance Regulation in the Light of Jewish Legal Sources,” in Reinhard Zimmermann, ed., Der Einfluss religioeser Vorstellungen auf die Entwicklung des Erbrechts (Mohr Siebeck: Tuebingen, 2012), p. 169.


Such clerical condemnations appeared in a French statute of 1280 that barred Jews from employing Christians. To facilitate scrutiny of Jewish tradesmen, a royal statute of 1218 required registry of all Jewish loans. Isambert’s Recueil General reproduced an ancient injunction that resonated in Napoleon’s condemnations. “Neither great clerics nor perfect theologians ought to dispute with Jews who malign the Christian faith, but one who hears the true faith maligned should defend against the miscreants with a sharp sword;” Legacy and Legend, n. 88, p. 1834.


For a Jewish convert’s remarriage to a Christian, see, e.g., Recueil sur la Question de Scavoir si un Juif Marie dans sa Religion peut se remarier apres son bapteme lorsque sa femme juive refuse de le suivre et d’habiter avec lui (Amsterdam, 1761).


Idem. at p. 2.


As a fellow at the Israel Institute of Advanced Study, Hebrew University, Jerusalem (2018–2019), I participated in scholarly workshops chaired by Dr. Jay Berkovitz. I thank Dr. Berkovitz and his colleagues for their constructive comments on drafts of this paper.

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