J. E. Scherer in his "Die Rechtsverhältnisse der Juden in den Deutsch-Oesterreichischen Ländern" (Leipsic, 1901) has well pointed out that legislation concerning the Jews during the Middle Ages may be divided into two groups, based upon two different views. The first comprises those laws which treat the Jews as belonging to an alien creed opposed to the established church of the state, against the development of which the latter must be protected in part by preventive, in part by repressive, measures. This legislation afforded the Jews in religious matters a limited sufferance; it protected their lives, liberty, and property, but seriously restricted their civil rights. This principle, traces of which are perceptible in heathen Rome, permeates the Christian-Roman, Germanic-Christian, and Mohammedan systems of law. The second group of laws is based upon the view that the Jews are members of a foreign nation, and are accordingly to be treated as aliens. Early Teutonic law held that foreigners did not share in the rights accorded by the nation to its members; they might at any time be expelled from the country in which they had settled, and their property, which was regarded as belonging not to them, but to the sovereign, might be taken away from them. Rights were secured by them only through grants from the sovereign, and were limited by such grants. Such were the principles of law applied to the Jews in Germany, in the Carolingian empire, in most portions of Austria, and in Aragon, Castile, Portugal, England, France, and south Italy till the thirteenth or fourteenth century.
The disabilities which the Jews suffered prior to the common era in countries other than those dominated by Greece and Rome—of little direct importance in accounting for their legal status in the civilized world to-day—are treated in the articles on those countries. In regard to pre-Christian Greece and Rome it need only be remarked that their treatment of the Jews showed, though in a minor degree, traces of the antagonism toward aliens which was so common in primitive societies, and which in the case of the Jew the jealous precepts of Jewish monotheism tended to aggravate (see Diaspora). Under Caracalla (211-217) the Jews became Roman citizens; as such they were entitled to all civil and political rights, in cluding even the right to hold public office, though certain obligations, which were regarded as inconsistent with their religion, were not imposed upon them, such as military service and liability to certain Church impositions. These conditions continued for about a century, until the Roman empireunder the emperor Constantine began to yield to Christianizing influences. Some further immunities which they continued to enjoy under Caracalla and his successors carried with them features which may, in one way, be regarded as disabilities. The tax which the Jews in the Roman empire were allowed to collect for Palestine (see Apostolé) was at a later time appropriated by the government itself, and the tax therefore became increasingly hateful to the Jews. It was soon replaced by irregular exactions, until it was definitely abolished by Julian, and the registers were destroyed. There is reason to believe that other special Jewish taxes were occasionally levied, and that the exemption, or disqualification, from military service, dating from the Pompeys in 49 and Dolabella in 43, was connected with a special counterbalancing tax. However, this taxation can scarcely, in its origin, be regarded as of a discriminatory character.Before Caracalla.
The period that preceded Caracalla was, however, even less favorable for the Jew, both in the Greek and in the Roman dominions. The Greek cities, certainly at first, did not receive the Jews favorably; in many of them the observance of Jewish rites was absolutely forbidden; in others, like Alexandria, they were required to live in a special district of the city, though this had been originally granted as a privilege. The Jews acquired in general the good-will, first of the Greek, then of the Roman authorities; and this afforded them a protection against the jealousy and antagonism of the populace. Under the Greeks they did not enjoy exemption from military service. Their fortunes and the degree of their liberties varied from time to time in the Greek cities, never becoming quite as complete as they became under Caracalla, and, generally speaking, they were never collectively Greek citizens. Of course, in the conquered Greek territories they acquired the same rights of citizenship as were enjoyed by their coreligionists in other parts of the Roman empire. In Rome they met with occasional harsh treatment, though their legal status gradually improved till the constitution of Caracalla made them Roman citizens. Hadrian, temporarily, prohibited circumcision; but this was soon changed to apply only to non-Jews, as a check, in the interests of the state religion, to Jewish proselytism. Before Caracalla's reign they were not fully privileged citizens, but "peregrini," and were not, it seems, eligible to public office, but occupied a position in some respects less, in others more, favorable than that of full Roman citizenship.After the Christianization of Rome.
From the advent of Constantine, Jewish rights became more and more limited, and their disabilities increased. The state became Christian in character, and legislation in support of the state Church and in opposition to the Jews, who would not accept the new religion, became common. The thought that Jews might lawfully give orders to Christians became hateful to the latter, and hence, beginning in 404, it was decided that Jews could not hold public office. Their judicial autonomy was also reduced. The law sought to prevent the Jews from spreading their religion to the detriment of Christianity, by forbidding, under heavy penalties, the building of new synagogues; it forbade a Jew to marry a Christian woman, to convert free Christians, or to keep Christian slaves. The law also endeavored to encourage conversion from Judaism, particularly offensive being provisions forbidding Jewish parents to disinherit, in whole or in part, their converted children. Intercourse between Jew and Christian was also discouraged by law. Jews and heretics were made incompetent to testify against Christians, and offensive special Jewish oaths were prescribed.
In Teutonic lands Jews came to be regarded, in theory at least, as aliens outside the law of the various nations among whom they lived, and as such were entitled only to those rights which the king, by special grant, might choose to confer upon them, individually or collectively. Without such grants they were outside the law. No "Wehrgeld" could be exacted from the slayer when they were unlawfully killed, and the king could at any time lawfully appropriate their possessions. Accordingly they acquired from time to time special grants from the crown, some of which, dating back to the era of Charlemagne, have been handed down to us. In these, as a matter of favor merely, or in return for a consideration, they acquired rights which, in certain particulars, might be greater or less than those enjoyed by their non-Jewish compatriots. The practical application of the theory which denied to Jews all rights except such as the crown chose to confer upon them, is forcibly illustrated throughout the Middle Ages in the cancelation of debts owing to Jews without the consent of the creditors. Not only were the Jews the servi camerœ of the emperor, but the rights over them of lesser princes and overlords became generally recognized when the emperors began to convey their own rights over the Jews to their vassals, in this way depriving the Jews of their principal protector. These lesser lords granted, withdrew, or withheld privileges at will.Historical and Economic Conditions.
It is, moreover, important to note that historical and economic conditions combined in the Middle Ages to curtail or to remove entirely any Jewish privileges or immunities which exceeded those enjoyed by non-Jews, the same causes frequently leading to extensions of their disabilities. These conditions were largely due to the Crusades, which stimulated religious animosities, and led to numerous popular anti-Jewish outbursts and even to massacres. The power of the crown, as against its greater vassals, becoming weaker, the Jews were also deprived of potential protectors against economic jealousy and mob violence. The economic conditions in question were due to the rise, after the pioneer work of the Jew had been performed, of rival traders, who organized themselves for self-protection into municipal corporations and trade-gilds, and secured anti-Jewish decrees when they were economically advanced enough to dispense, wholly or partially, with Jewish aid (see Roscher, "Die Juden im Mittelalter, Betrachtet vom Standpunkt der Allgemeinen Handelspolitik"). These decrees, in a measure at least, led to the exclusion of Jews from various industries and trades, thelist of excluded occupations varying in different communities, and being determined largely by the political influence of various non-Jewish competing interests. Frequently all occupations were barred against Jews, except money-lending and pedling—even these at times being prohibited. The number of Jews or Jewish families permitted to reside in different places was limited; they were concentrated in ghettos, and were not allowed to own land; and they were subjected to discriminatory taxes on entering cities or districts other than their own (see Poll-Tax).
With the acceptance of more modern economic ideas many of these restrictions disappeared. Holland led the way in abolishing Jewish disabilities, and England followed next, though both were more liberal in their treatment of the Jews in their American possessions than they were toward those at home. Germany and France took steps in the same direction even before the French Revolution, though that great movement, as well as its American predecessor, accelerated Jewish emancipation throughout the European continent. The oppressive and comprehensive character of Jewish disabilities as they existed in Europe as late as 1781 are ably described by Dohm in his "Ueber die Bürgerliche Verbesserung der Juden," pp. 6-12:Disabilities of the 18th Century.
"In view of the energetic efforts of the nations to increase their population, it is strange that in most states an exception is still made with respect to a particular class of men. In nearly all the states of Europe the policy of the law and of the whole constitution of the state is directed to preventing as far as possible the increase in number of those unfortunate fugitives from Asia—the Jews. In several states their sojourn has been totally prohibited, and residence for a brief time (often for a night only) is permitted on condition of certain payments, and only to travelers enjoying privileges from the overlord. In most of the other states, the Jews have been received under the most burdensome conditions, not as citizens, but as inhabitants and dependents. The law generally permits that only a specified number of Jewish families shall settle in a country, and this permission is commonly limited to particular places and must be purchased from time to time by the payment of a considerable sum of money. In very many countries the possession of a fortune is an essential prerequisite for securing this necessary license. A large number of Jews find, accordingly, the portals of every city closed to them, are inhumanly turned back at every boundary, and nothing remains for them to do but to starve, or to still their hunger by the aid of crime. If a Jewish father have several sons, he will probably be able to relinquish to only one of them the license to sojourn in the country of his birth; the rest he is obliged to send away with a portion into foreign territory, where they must struggle with equal disabilities. Concerning his daughters, the question arises whether he will be fortunate enough to establish them in one of the families of his native place. Seldom, therefore, can a Jewish father enjoy the happiness of living among his children and grandchildren, or of establishing the fortunes of his family in a permanent manner. For even the wealthy are compelled to constantly divide their fortunes through the necessary separation from their children and the expense of their establishment in different places. If a Jew has acquired permission to remain in a country, he is obliged to repurchase the same annually by heavy payments; he is not permitted to marry without special permission, subject to peculiar conditions and heavy charges; every child increases the size of his tax, and almost all his dealings are thus affected. In every occupation in life the laws are directed against him with utmost rigor, and the mild treatment accorded to those among whom he is living makes his lot seem all the harsher. Besides all these varied imposts, the Jew's means of livelihood are restricted to the utmost. He is absolutely debarred from the honor of serving the state; the prime pursuit, agriculture, is closed to him, and scarcely anywhere may he own landed property in his own name. A gild would regard itself as disgraced if it received one of the circumcised into its membership, and for that reason the Jew is wholly excluded in almost every land from manual and mechanical pursuits. But seldom, among so many disabilities, can sufficient courage and zeal be found surviving—so seldom that, in considering the whole race, individual cases should be wholly disregarded—to undertake the pursuit of the fine arts and of science, of which only geometry, natural science, and medicine remain open to the Hebrew as a means of livelihood. Even those few men who succeed in attaining a high rank in science and art, as well as those who confer honor upon mankind through unblemished righteousness of conduct, can acquire the esteem of but few noble beings; among the mighty ones even supreme merit of mind and heart is canceled by that unpardonable fault—the fault of being a Jew. For this unfortunate being, who is countryless, whose activities are everywhere circumscribed, who is nowhere permitted to exercise his talents untrammeled, in whose virtue no one places credence, for whom scarcely one attainable distinction exists—for him no path leads to the enjoyment of a dignified and independent existence, or even to self-support, other than the path of trade. But here also discriminatory limitations and imposts beset him, and but few of this people have sufficient property to engage in wholesale trade. They are, therefore, mostly confined to a petty retail trade, in which only the constant duplication of small profits suffices to sustain a needy existence; or they are compelled to lend to others the money they can not employ themselves. But in what numerous ways is even this sole remaining pursuit restricted in nearly every country! Many kinds of trade are wholly closed to them; others are open only under legislative regulations concerning time, place, and person; the permitted trades are beset by so many imposts, hampered by so many investigations, and dependent on the caprices of so many petty officials, that the earnings of Jews are extremely small, and can attract only such as are accustomed to the most miserable existence. When in former days, because of such restrictions upon his own employment of his own property, it became necessary for the Jew to lend it to others, it was seen fit to declare such practise—which must, however, be regarded as the most natural consequence of these restrictions—as illegal; and to-day, also, lending money upon interest is scarcely regarded as an honest business. . . . And notwithstanding the fact that the lending of money has been forced upon the Jew, the law almost always favors the debtor, and the latter is compelled by his necessities only too often to drive the Jewish creditor to a violation of the law, and thus to expose him to incessant penalties."
As regards the present disabilities in Russia and Rumania, Leroy-Beaulieu says: "It is widely believed that almost all the Jews in the world, at any rate all European Jews, enjoy civil liberty and equality. This is a mistake. The Israelites who enjoy the rights of citizenship are probably still in the minority. A large number of the descendants of Abraham are still subject to special laws. There remain in Europe but two states (other than Spain and Portugal) which refuse to grant to the Jews the rights accorded to the Christians; but these two states, Russia and Rumania, contain more Jews than all the rest of Europe together. One of them, the Russian empire, holds perhaps fully one-half of all the Jews in the world" ("Israël Chez les Nations," pp. 4, 5). For detailed account of disabilities in Russia see Russia.
The basis of Mohammedan legislation concerning Jews was, and still is, in some countries, the group of laws known as the "Pact of Omar," attributed to Omar, the second calif. In taking Jerusalem he is said to have granted protection to the capitulating Christians under certain conditions, which were extended to Jews. The main points of these conditions, according to later Arabic writers, were: that they should not build new houses of worship nor restore the oldones; that they should admit the followers of Islam to their places of worship; that they should not pray aloud; that they should not teach their children the Koran; that they should entertain a traveling Mohammedan for three days; that they should not harbor a spy; that they should not hinder any one from embracing Islam; that they should show respect to Mohammedans whenever they met them; that their houses should not overtop the dwellings of the Mohammedans; that they should wear a distinct dress; that they should not drink wine in public, nor carry weapons, nor ride on horseback, nor make use of a signet-ring with Arabic inscriptions; that they should pay a poll-tax; that they could not hold public offices, nor have intercourse with Mohammedan women.
It is a matter of doubt whether all of these laws were enacted by Omar; for his subsequent bestowal of privileges upon the Babylonian Jews would have been an act of inconsistency which a man of his character would be very unlikely to commit. However that may have been, there is no trace of the enforcement of these enactments until Omar II. (717-720). This calif passed several restrictive laws similar to those contained in the "Pact of Omar." Only two califs of the Abbassid dynasty, Harun al-Rashid (786-809) and Mutawakkil (847-861), are known to have been guided by these laws with regard to both Jews and Christians, the former calif enforcing them partially, and the latter to their full extent. In Egypt, under the dynasty of the Fatimites, only Al-Hakim (996-1021) enforced them; he, however, not only enforced, but greatly amplified them. In Spain and Africa it was not until the time of the Almoravides that their observance became general. The last Mohammedan government to enforce, and the first to repeal, the "Pact of Omar" was the Sublime Porte.Disabilities in Turkey.
Until the end of the seventeenth century the legal disabilities of the Jews in Turkey were but few. They began to multiply only under Mustafa II. (1695-1703), who compelled the Jews to wear black shoes and hats, in contrast to the yellow shoes and red head-gear of their Mohammedan compatriots. The testimony of Jews was not valid, and they were allowed to dwell only in specified districts. Residence in Jerusalem was practically rendered impossible by heavy taxes, which only the richest Jews were able to pay. Similar legislation prevailed in the Turkish possessions of Algeria and Tunis, where residence in certain cities, such as Kairwan, Hammamet, and Tunis, was forbidden to Jews. They were compelled to dress in black, and among other restrictions were forbidden the use of lanterns in the street. In passing before a mosque they had to take off their shoes.In Morocco.
The abolition of Jewish legal disabilities in Turkey was effected by 'Abd al-Majid in 1840; in Algeria, when it was conquered by France; in Tunis, through the intervention of France in 1857, when the bey was compelled to emancipate them. Morocco and Persia are now the only Mohammedan countries where Jews are still subject to barbarous discriminating legislation. Not only was the "Pact of Omar" adopted in these countries, but it was used as a basis for new laws for the degradation of the Jews, who thereby became the prey of the mob and of every petty official. The following is a list of the principal disabilities still in force in Morocco: Where Mohammedans are concerned the testimony of a Jew is invalid. Jews can not reside outside the mellahs. They are not allowed to ride through any part of the town outside the mellah, on leaving which they are compelled to walk barefoot and to remove their head-dress. They are not allowed to carry a walking-stick, but the elderly and sick are permitted to use reeds as supports. In Moorish districts the Jew is not allowed to use the foot-paths, but must confine himself to the rougher parts of the highways. He is bound to pass the Moor on the left hand, and if he fail to do so he must retrace his steps. They are not allowed to build houses above a certain height, nor to own property outside the mellah. They are debarred from possessing stores or booths in the Moorish quarters. When government granaries or warehouses are overstocked, or their contents damaged, the Jews are forced to buy at the normal price of undamaged goods. Jews, with their wives and daughters, are compelled to work for any government official whenever ordered, even on Sabbaths and festivals, and to receive payment far below the market rates. They are compelled to do the work which the Moors refuse as degrading—cleaning sewers, carrying away carcasses from government stables, etc. When the heads of rebels or of criminals are to be exposed at the town gate, the Jews are made to salt them before they are exhibited. Jewish purveyors (butchers, grocers, bakers, etc.) are compelled to supply various functionaries gratuitously. A Jew can not appoint a Jewish attorney to plead before the ḳaḍi against a Moor. Neither is he allowed to act as attorney for a Moor.
Jews are not allowed to follow any of the liberal professions, and are disqualified for public offices or employments. They are required to wear a special costume, consisting of a black skull-cap and black shoes, and are not allowed to adopt any attire that might lead one to mistake them for Moors. They are not allowed to use the public baths, and are even denied the use of baths in the mellah; are not allowed to drink from the public fountains in Moorish quarters, nor to take water therefrom; and are not allowed to carry arms. A Jew's evidence is not admitted in a court of justice. A Jew's life, if taken by a Moor, is compensated by the payment of a sum equal to $300.
A Jew condemned to imprisonment or to flogging must pay the fees of all officials concerned in his punishment. In the prisons and jails they are not allowed the use of the common rooms, but are invariably confined in privies, or the like. If a Jew is suspected of immoral intercourse with a Moorish woman (though she be a prostitute), he is liable to imprisonment for an indefinite period. If he confess, even under torture, or if a witness establish the charge, he is punished by death. If Moors choose to assert that a Jew has abjured his faith, he is compelled to become a Moslem; and should he afterward attempt to conform to the Jewish ritual, he would be liable to be stoned or burned to death.In Persia.
Almost all these disabilities are in force in Persia also. They have lately increased to such a degree in provinces distant from the capital, where the officials are not hindered from Jew-baiting by the protests of the ambassadors of European powers, that living under them is well-nigh impossible. As a specimen of these laws, the following, effective in Hamadan in 1892, may suffice: Jews may not leave their houses on rainy or snowy days (rain and snow are considered by Mohammedans as conductors of uncleanliness). Jewish women are not allowed to show themselves in public places with their faces veiled. Their "izar" (cloak) must be of two colors. Jews are limited to blue cotton clothing. They are not allowed to wear comfortable shoes. Every Jew is compelled to wear a piece of red cloth on his breast. A Jew must not precede a Moslem in public places, neither may he speak to him in a loud voice. A Jewish creditor must prefer his claim to a Mohammedan debtor in a respectful manner. A Jew insulted by a Moslem must bow his head in silence. A Jew buying meat must keep it covered from the sight of Moslems. Jews are forbidden to erect good buildings; neither may their houses overtop those of their Moslem neighbors. They may not calcimine their rooms. The entrances of their houses must be low. They must not wrap themselves in their cloaks, but must be content with wearing them rolled back under their arms. They are forbidden to cut their beards. They are not allowed to leave town nor to walk in the environs. Jewish physicians are not allowed to ride on horses. A Jew suspected of having recently drunk brandy is not allowed in the streets; otherwise he is liable to the punishment of death. Jewish weddings must be celebrated secretly. Jews are not allowed to eat undamaged fruit.
- Ibn al-Athir, vii. 20;
- Ibn Khaldun, Ta'rikh al-Kamil, fol. 55;
- August Müller, Der Islam, i. 524, 630;
- Wüstenfeld, Gesch. der Fatimid. Chalifen, p. 179;
- Fregier, Les Juifs Algêriens, pp. 8 et seq., Paris, 1865;
- Durier, Les Juifs Algêriens, pp. 4 et seq., ib. 1902;
- Cazès, Essai sur l'Histoire des Juifs de Tunisic, ib. 1889;
- Loeb, La Situation des Juifs en Turquie, ib. 1877;
- Anglo-Jew. Assoc. Report, 1886;
- Bulletin All. Isr. 1892;
- H. A. Hamaker, De Expugnatione Memphidis et Alexandriœ, pp. 165-175, Leyden, 1825;
- Steinschneider, in Jew. Quart. Rev. xii. 488 et seq.;
- idem, in Juden (Geschichte) in Ersch and Gruber, Encyc. section ii., part 27, pp. 189 et seq.;
- idem, in Polemische Literatur, Supplement I, pp. 165-187 (on the "Pact of Omar").