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

2.1 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.

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.

4.1 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.

5.1 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.

6.1 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.

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