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A SPACE FOR JEWISH JUSTICETHE MAHAMAD’S COURT OF THE SPANISH AND PORTUGUESE JEWS’CONGREGATION OF LONDON, 1721-1868

Filer, Wendy

Awarding institution:King's College London

Download date: 04. Jul. 2022

1

A SPACE FOR JEWISH JUSTICE:

THE MAHAMAD’S COURT OF THE SPANISH AND

PORTUGUESE JEWS’ CONGREGATION OF LONDON, 1721-1868

Wendy Esther Filer

A thesis submitted for the degree of Doctor of Philosophy in Jewish Studies

King’s College London

Department of Theology and Religious Studies

© April 2022

2

ABSTRACT

This thesis examines how the Spanish and Portuguese Jews’ Congregation of

London (‘the London community’) carved out, to the extent English law and courts

would permit them, a Jewish judicial space to which congregants submitted civil and

religious disputes to Jewish judges, as required by Jewish law. The denial of judicial

autonomy to the Jews on resettlement, coupled with open access to the English

courts, posed unique challenges for this voluntaristic community. This thesis argues

that the London community drew on halakhic principles and the transnational legal

culture of the Western-Iberian Jews to articulate a vision for a Jewish judicial space,

based on the principle of the compromise of disputes (through mediation, arbitration,

or adjudication) before a tribunal of laymen drawn from the serving Mahamad (‘the

Tribunal’). The translation of that vision into practical justice emerges from the

primary source of this thesis, the community’s Livros dos Pleitos (Books of

Lawsuits), maintained from 1721 to 1868. Following Jewish law’s distinction

between monetary and religious matters, this thesis analyses the Tribunal’s different

approaches to dispute resolution in relation to debt collection and marriage disputes.

The challenges to the Tribunal’s vision of themselves as the gateway to non-Jewish

courts are evidenced within these sources, as well as in several reported cases of

Sephardim litigating in England’s ecclesiastical courts. This thesis questions

whether the interpretative tool of ‘acculturation’ adequately explains the nature of

individual jurisdictional choice and builds on the ‘judicial turn’ in the study of

Jewish legal history by arguing that legal pluralism and other theories offer

productive avenues for analysing how Jewish communal justice systems developed

and adapted to the specific challenges of the legal environment in which they found

themselves.

3

ACKNOWLEDGEMENTS

I extend my heartfelt thanks and gratitude to my supervisors Dr Andrea Schatz at King’s

College, London and Dr Laliv Clenman at Leo Baeck College, London, for their inspiring,

rigorous guidance and critical insights at supervisions, and during the editing process of this

thesis. Their unwavering personal kindness, encouragement and support sustained me

throughout the long years of researching and writing, especially during challenging times,

not least the Covid-19 pandemic.

It was a privilege to be examined by Professor François Guesnet and Professor Didi Herman,

who both expertly transformed my virtual viva voce into a stimulating, enjoyable

experience. I thank them for their challenging questions and insightful observations on my

thesis which will continue to inform and enrich my research.

Permission to access the Spanish and Portuguese Jews’ Congregation of London’s archive

was kindly granted by their archivists, Miriam Rodrigues-Pereira, Rachel Montagu, and

Edgar Samuel, who also generously gave of his personal time and access to his papers. I am

grateful to the librarians at the London Metropolitan Archive and Lambeth Palace Library

for their help in navigating court records. Archivists at the National Library of Israel were

very helpful in accessing online material during the Covid-19 lockdowns.

Sincere thanks to family and friends who maintained interest in and encouragement of my

research over many years. To my husband, Paul and children, Rebecca and David, my

mother Mary Bernstein and brother Joel, I am forever grateful that you accepted this

project’s intrusion into your lives with patience, humour, love, and support.

4

I. INTRODUCTION 7

1 MENASSEH BEN ISRAEL AND JEWISH JUDICIAL AUTONOMY 7

2 JEWISH JUSTICE: A MODERN CONTROVERSY 10

3 RESEARCH QUESTIONS 12

4 METHODOLOGY: JEWISH LEGAL HISTORY’S ‘JUDICIAL TURN’ 15

5 CHAPTER OUTLINE 25

II. INFLUENCES FROM JEWISH LEGAL CULTURE 28

1 THE HALAKHIC FRAMEWORK OF THE TRIBUNAL 28

1.1 LAY JUDGES 29

1.2 ARBITRATION AND COMPROMISE IN JEWISH JUSTICE SYSTEMS 34

1.3 TWO CONCEPTS CONTROLLING JEWISH JURISDICTIONAL BOUNDARIES 38

1.4 THE RECALCITRANT DEFENDANT 42

1.5 POWERS OF ENFORCEMENT 43

2 TRANSNATIONAL LEGAL INFLUENCES OF VENICE AND AMSTERDAM 48

2.1 VENICE 48

2.1.1 Jewish justice under Charters of Privilege 49

2.1.2 Arbitration as a compulsory communal process 54

2.1.3 Laymen versus rabbinic arbitrators 55

2.2 AMSTERDAM 57

2.2.1 Introduction 57

2.2.2 Jewish justice without a charter of privilege 59

2.2.3 Religious arbitration as a voluntary, recognised process 62

2.2.4 Lay versus rabbinic authority 64

2.2.5 Analytical challenges posed by the Amsterdam judicial model 65

2.3 CONCLUSION 68

III. ACCESS TO ENGLISH JUSTICE 70

1 MENASSEH’S PLEA FOR JUDICIAL AUTONOMY RE-EXAMINED 70

2 THE ‘CONDITION OF STRANGERS’ 74

3 THE DEMISE OF ‘PERPETUAL ALIEN’ STATUS IN CIVIL LAW 79

4 THE RECEPTION OF THE JEWS IN THE ECCLESIASTICAL COURTS 82

5 THE RECEPTION OF THE JEWS IN LONDON’S LOCAL COURTS 89

IV. CIVIL CASES 94

1 THE LIVRO DE PLEITOS AS A SOURCE FOR UNDERSTANDING JEWISH JUSTICE 94

2 FUNCTIONALITY AND EFFECTIVENESS OF COMMUNITY-BASED JUSTICE 98

3 MEDIATION, ARBITRATION, AND THE TRIBUNAL 101

3.1 FROM NEUTRALITY TO ACTIVE DISPUTE RESOLUTION 101

3.2 RELIGIOUS JUSTIFICATION FOR JEWISH JUSTICE? 105

3.3 AN EXPANDING SUBSTANTIVE JURISDICTION 107

3.4 MEDIATION, ADJUDICATION, AND THE ADVANTAGES OF SETTLEMENT AT THE

TRIBUNAL 110

3.5 VOLUNTARY ARBITRATION AS AN ALTERNATIVE TO MEDIATION OR ADJUDICATION 116

5

3.6 INTERNAL CHALLENGES: BALANCING ADJUDICATORY, ADMINISTRATIVE, AND

CHARITABLE OBLIGATIONS 119

4 VISION V REALITY: THE EFFECTIVENESS OF THE TRIBUNAL 124

4.1 THE ALLURE OF NON-JEWISH COURTS 125

4.2 POLICING NORMATIVE BEHAVIOUR: THE ROLE OF CONGREGANTS 129

4.2.1 Use of enforcement procedures 129

4.2.2 Use of originating procedures 132

4.3 THE PERMISSION GATEWAY TO NON-JEWISH COURTS 134

4.4 CONCLUSION 141

V. RELIGIOUS CASES 143

1 INTRODUCTION 143

2 VALIDITY OF MARRIAGE 147

2.1 ECCLESIASTICAL LAW: AN OVERVIEW 147

2.2 SEPHARDI JEWS IN THE ECCLESIASTICAL COURTS 149

2.2.1 Espousal action: Jacob Mendes Da Costa v Catherine Villa Real (1731-1733) 150

2.2.2 Jactitation of marriage: Lindo v Belisario (1793-1796) 155

2.3 VALIDITY OF MARRIAGE DISPUTES IN THE JEWISH JUDICIAL SPACE 166

2.4 THE CHALLENGE OF CIVIL MARRIAGES 176

3 MARRIAGE BREAKDOWN 180

3.1 DIVORCE IN ECCLESIASTICAL LAW: AN OVERVIEW 180

3.2 LITIGATING IN THE ECCLESIASTICAL COURT 184

3.3 LITIGATING IN THE LOCAL COURTS: ILL-TREATMENT AND MAINTENANCE 187

3.4 DISPUTE RESOLUTION AT THE TRIBUNAL 188

3.4.1 Marital violence disputes at the Tribunal 189

3.4.2 Maintenance claims at the Tribunal 191

4 THE TRIBUNAL’S ATTITUDE TO DIVORCE AND SEPARATION 195

5 CONCLUSION 199

VI. THE BET DIN IN THE JEWISH JUDICIAL SPACE 201

1 INTRODUCTION 201

2 THE FUNCTIONALITY OF THE BET DIN 202

3 THE PRACTICAL REALITY OF THE BET DIN’S ROLE 208

3.1 CIVIL MATTERS 209

3.2 RELIGIOUS CASES 213

4 RABBINICAL PERSONNEL AS LITIGANTS 217

5 CONFLICTS OF INTEREST AND THE BET DIN 218

VII. CONCLUSION 224

APPENDIX 1: NINETEENTH CENTURY LIVROS ENTRIES 240

APPENDIX 2: GLOSSARY 241

APPENDIX 3: LIST OF ABBREVIATIONS 245

6

APPENDIX 4: LIST OF CASES 246

BIBLIOGRAPHY 247

7

I. INTRODUCTION

1 Menasseh ben Israel and Jewish judicial autonomy

In September 1655, Rabbi Menasseh ben Israel travelled to London from his home

city of Amsterdam on a mission to persuade the English Parliament and the Lord

Protector of England Oliver Cromwell to permit Jews to settle in England. He

carried with him a pamphlet which he had authored and published in Amsterdam

setting out his arguments in favour of readmission of the Jews to England.1

Addressing Cromwell personally, Menasseh pleaded for the Jews to be granted ‘free

exercise of our Religion, that we may have our Synagogues, and keep our own

publick worship as our brethren doe in Italy, Germany, Poland and many other

places’.2 Elaborating on this plea, Menasseh wrote that nations that permitted Jews

‘liberty to live according to their own Judaicall Laws’ benefited ‘most easily’ from

their economic utility. Among the nations whose formal privileges or prerogatives

gave Jews this liberty were those which had ‘graunted [the Jews] power to judge all

Civill causes according to their own Laws amongst themselves.’ The Jews of

Turkey, stated Menasseh, had ‘power to judge all Civill causes according to their

own Lawes amongst themselves’; the Jews of Poland, Prussia and Lithuania ‘have

the Jurisdiction to judge amongst themselves all causes, both Criminal and Civil’;

the Jews of Tuscany ‘have their Judicatory by themselves, [] to judge in all matters,

both Civill and Criminall’ and the Jews of Barbary had ‘power and Jurisdiction of all

kinde of punishment, onely life and death excepted’.3 These arguments were a

powerful claim to the centrality of judicial autonomy in the life of Jewish

communities.

1 The literature treating Menasseh ben Israel’s mission is extensive. For a seminal account, see David

S. Katz, Philo-Semitism and the Readmission of the Jews to England, 1603-1655 (Oxford: Clarendon

Press, 1982); The Jews in the History of England, 1485-1850, Reprint ed. (Oxford: Clarendon Press,

2002), 107-144. My short biographical sketch of the events leading up to the presentation of

Menasseh’s seven-point petition mainly relies on Steven Nadler, Menasseh Ben Israel: Rabbi of

Amsterdam (New Haven, London: Yale University Press, 2018). 2 Menasseh Ben Israel, To His Highnesse the Lord Protector of the Common-Wealth of England,

Scotland, and Ireland. The Humble Addresses of Menasseh Ben Israel, a Divine, and Doctor of

Physick, in Behalfe of the Jewish Nation (London: s.n., 1655). The work will be cited in Lucien

Wolf’s edition: Lucien Wolf, ed. Menasseh Ben Israel's Mission to Oliver Cromwell: Being a Reprint

of the Pamphlets Published by Menasseh Ben Israel to Promote the Re-Admission of the Jews to

England, 1649-1656 (London: Macmillan & Co, 1901), 77. 3 Menasseh Ben Israel, The Humble Addresses in Menasseh Ben Israel's Mission, 86-88.

8

Having delayed submitting his Humble Addresses to Cromwell until after the Jewish

High Holidays, in late October 1655 Menasseh presented himself at the Council of

State only to find that Cromwell was absent and so his pamphlet was handed, on the

orders of the Council of State to Henry Jessey, a Puritan theologian with whom

Menasseh had corresponded about millenarian expectations for the ingathering of the

exiles which had been the subject of Menasseh’s earlier book The Hope of Israel

published in Spanish and Latin in 1650. 4 By the time Menasseh finally met

Cromwell personally in mid-November 1655, he had distilled his arguments in his

Humble Addresses into a seven-point petition setting out – ‘somewhat

presumptuously’ according to Steven Nadler – the conditions upon which he

requested readmission of the Jews to England.5

Having prepared the ground in his Humble Addresses, Menasseh’s petition also

addressed the legal basis upon which readmission would be founded. As well as

seeking the revocation of any existing laws prejudicial to the Jews, Menasseh sought

Jewish judicial autonomy whereby Jewish judges would hear and decide disputes

between Jews according to, as Menasseh put it, ‘Mosaic law’, subject to appeal to

the civil courts.6 In requesting judicial autonomy, Menasseh was seeking to obtain

recognition for a fundamental principle of halakhah prohibiting Jews from

submitting any disputes with fellow Jews to the ῾arka’ot shel goyim (non-Jewish

courts).7 With governmental recognition of judicial autonomy, Jewish courts had the

reassurance that they might rely on the power of the state to enforce their decisions,

if litigants refused to comply with them.

It was crucial therefore for Menasseh to ensure that the country in which his co-

religionists were to establish a new home would respect and make a space for Jewish

4 The English translation was published shortly afterwards: Menasseh Ben Israel, The Hope of Israel:

Written by Menasseh Ben Israel, an Hebrew Divine, and Philosopher Newly Extant, and Printed at

Amsterdam, and Dedicated by the Author, to the High Court the Parliament of England, and to the

Councell of State. Whereunto Are Added in This Second Edition Some Discourses Upon the Point of

the Conversion of the Jewes: By Moses Wall, ed. Moses Wall (London: R. I[bbitson]. for Livewell

Chapman at the Crown in Popes-Head Alley, 1651). For a reprint, see Wolf, Menasseh Ben Israel's

Mission, 1-72. 5 Nadler, Menasseh Ben Israel, 198. 6 Menasseh’s petition in its original French is reprinted in Wolf, Menasseh Ben Israel's Mission,

lxxxiii. For the English translation on which I rely throughout, see H. S. Q. Henriques, The Jews and

the English Law, Reprint ed. (Clifton: Augustus M. Kelley, 1974), 89-90. I reproduce the original

French and the translated text in Chapter III, section 1. 7 For literal translations of key Hebrew words or phrases and definitions of key terms used in this

thesis, see Appendix 2 Glossary.

9

judges to resolve disputes within the Jewish community, and that English courts

would, if necessary, uphold their decisions. Failure to secure such an assurance

would create a serious problem for Jewish courts because their judicial decision-

making power would rest on shaky foundations, a combination of internal communal

disciplinary authority and individual commitment to adhering to the prohibition.

Cromwell referred Menasseh’s petition to the Council of State who in turn remitted

it to a sub-committee to decide two questions: was it lawful to readmit the Jews to

England and, if it was, what conditions should govern their readmission?8 The sub-

committee considered that there was no legal impediment to readmission because the

Jews’ expulsion in 1290 had been ordered by royal decree which meant that

repealing extant legislation was unnecessary.9 However, they recommended

imposing seven stringent conditions for readmission, including that the Jews ‘be not

admitted to have any publicke Judicatoryes, whether civill or ecclesiasticall, which

were to grant them terms beyond the condition of strangers.’10 In 1656, Menasseh

made one final attempt to secure formal recognition of only two of the seven pleas

made in his petition, protection of the Jews to worship in private and permission to

establish a Jewish cemetery.11 Together with six Portuguese converso merchants,

who had been living in London as Catholics but had emerged into the open as

practising Jews, Menasseh presented what was to be the final petition of the Jews for

formal recognition of these limited religious protections. The petition was silent

about judicial autonomy, as was Menasseh’s Vindiciae Judaeorum (A Vindication of

the Jews) published in London in April 1656 to refute the slanders against the Jews

deployed by readmission’s opponents.12

Yet, within a decade of Menasseh’s departure from London, the fledgling Portuguese

Jewish community (hereinafter “the London community”) established a synagogue

8 On the broader debate about legal methodology, as between the primacy of the common law versus

the prerogative power of the king, and ideas of English nationhood: see Eliane Glaser, Judaism

without Jews: Philosemitism and Christian Polemic in Early Modern England (New York: Palgrave

Macmillan, 2007), 119-129; Andrew Crome, "English National Identity and the Readmission of the

Jews, 1650-1656", Journal of Ecclesiastical History 66 (2015), 280-301. 9 Nadler, Menasseh Ben Israel, 199; Katz, Jews in History of England, 117-119. 10 Katz, Jews in History of England, 117 n.21, citing State Papers 18/101, fols. 281r-283r. 11 Nadler, Menasseh Ben Israel, 205. 12 Vindiciae Judaeorum in Wolf, Menasseh Ben Israel's Mission, 107-147. See Nadler, Menasseh Ben

Israel, 206-208; Glaser, Judaism without Jews, 11-12; Sina Rauschenbach, Judaism for Christians

Menasseh Ben Israel (1604-1657), trans. Corey Twitchell (Lanham, Maryland: Lexington Books,

2019), 159-177.

10

and asserted a form of communal justice whereby civil disputes between members

were resolved by a tribunal of laymen drawn from its governing committee, the

Mahamad. From 1721 the tribunal began recording its hearings in a series of six

folio books, the first of which they titled Livro de Pleitos (Book of Lawsuits;

hereinafter together ‘the Livros’) and did so until they finally discontinued that

practice in 1868. The Livros provide us with a unique, rich understanding of how the

community translated their vision of Jewish justice into practical reality and they are

the principal archival resource for this thesis.13 While this model of lay justice for

the resolution of civil disputes would eventually disappear towards the end of the

1860s, the community’s religious court (bet din; pl. batei din) presided over by

rabbinically qualified judges deciding religious matters according to halakhah, exists

to this day, and indeed, became the accepted model for Jewish justice in the major

Jewish denominations in England.

2 Jewish justice: a modern controversy

In this form, a Jewish judicial space continued outside the public spotlight until 2008

when it was thrust into public view following a controversial lecture by the former

Archbishop of Canterbury, Rowan Williams, who discussed whether sharia law and

courts should be accommodated in the English legal system. In arguing that

accommodation was desirable, the former Archbishop did not confine his remarks to

sharia law and courts; he considered that the issues surrounding accommodation

were applicable to all minority religious legal systems, including those of Orthodox

Jews. A storm of protest followed the lecture, with the former Archbishop’s remarks

widely misinterpreted as advocating the incorporation of sharia law into English

law.14 In the House of Lords, Baroness Cox introduced her Arbitration and

13 For a full description of the Livro de Pleitos and other archival sources, see Chapter IV, section 1. 14 Rowan Williams, "Civil and Religious Law in England: A Religious Perspective", Ecclesiastical

Law Journal 10 (2008), 262-282. For the practical and theoretical issues concerning religious courts

and multiculturalism, and religious diversity see: Ayelet Shachar, Multicultural Jurisdictions:

Cultural Differences and Women's Rights (Cambridge: Cambridge University Press, 2001); Bernard Jackson, "‘Transformative Accommodation’ and Religious Law", Ecclesiastical Law Journal 11

(2009), 131-153; Gillian Douglas et al., "Social Cohesion and Civil Law: Marriage, Divorce and

Religious Courts [Project Report]", (Cardiff: Cardiff University, 2011); Maleiha Malik, "Minority

Legal Orders in the UK: Minorities, Pluralism and the UK", (London: British Academy Policy Centre,

2012); François Guesnet, Cécile Laborde, and Lois Lee, eds., Negotiating Religion: Cross-

Disciplinary Perspectives (London: Taylor & Francis Group, 2016); Russell Sandberg, ed. Religion

and Legal Pluralism, pbk. ed. (London: Routledge, 2017), 2-17.

11

Mediation Services (Equality) Bill of 2012 aimed at curtailing the jurisdiction of

religious minority courts to curb, in her words, ‘a rapidly developing alternative

quasi-legal system which undermines the fundamental principle of one law for all.’15

Although principally directed at sharia courts, there is no doubt that if Baroness Cox

is successful in the future in passing her bill, its provisions will encroach on the work

of batei din, notwithstanding their long history of operating in England largely

without controversy.16

Linking batei din and sharia courts occurred in other contexts. For example, in an

LBC radio interview, the then London Mayor Boris Johnson responded to Home

Secretary Theresa May’s announcement that the Government intended to investigate

sharia courts as part of its ongoing attempts to counter extremism by stating that he

did not support parallel religious justice systems, a position he applied to batei din as

well as sharia courts, stating that ‘sauce for the goose is sauce for the gander.’17

Similarly, a BBC Radio 4 programme on Sharia Law in Britain included interviews

with anonymous female users of sharia courts critical of their treatment, as well as

two interviews with agunot, Jewish women refused divorces by their husbands, who

criticized the failure of batei din to assist them.18

As a result of their higher public profile, the legal basis of batei din drew scrutiny

beyond the confines of academia. In 2009, the Centre for Social Cohesion, a London

think tank, published a report devoted to understanding the legal position and role of

modern batei din.19 It concluded that, from the perspective of the English legal

system, batei din were not legal courts and did not operate a parallel legal system.

Rather, they were organisations offering two separate services: an arbitration service

governed by the Arbitration Act 1996 (‘the 1996 Act’) for the resolution of civil

disputes, and a service providing Jews with religious rulings on a range of religious

15 Hansard, HL Deb 19 October 2012, col. 1683. 16 Arbitration and Mediation Services (Equality) HL Bill (2012-13) [7]; Arbitration and Mediation

Services (Equality) HC (2015) [136]. For a critique of the Bills, see Sharon Thompson and Russell

Sandberg, "Common Defects of the Divorce Bill and the Arbitration and Mediation Services

(Equality) Bill", Family Law (2017), 447-451. 17 Owen Bennett, "Boris Johnson: Sharia Law Is Completely Unacceptable in the UK", The Daily

Mirror, 24 March 2015. 18 Sharia Law in Britain, podcast audio, The Report, 28:07,16 April 2015,

http://www.bbc.co.uk/programmes/b05qjypj. (Accessed 20 January 2021). 19 Report of The Centre for Social Cohesion, "The Beth Din: Jewish Law in the UK", (2009). The-

Beth-Din-Jewish-Law-in-the-UK-Amended.pdf (henryjacksonsociety.org) (Accessed 20 January

2021).

12

issues, such as kashrut, conversion, and personal status, as well as ritual matters. In

offering an arbitration service, batei din complied with the procedural requirements

laid down by the 1996 Act, including the signing of an arbitration agreement which

entitled the parties to enforce their arbitral award in the civil courts.20 In contrast,

religious rulings were only binding upon Jews because they voluntarily submitted to

the jurisdiction of a bet din, and the state had no role to play in ensuring they

complied with a bet din’s ruling.21 To take a simple example for the latter, the

decision of an Orthodox bet din to refuse a couple permission to marry because

either one or both of them was not, in their view, halakhically Jewish is not

justiciable in an English court.22

3 Research questions

These controversies highlighted the contrast between, on the one hand, Menasseh’s

failure to obtain state recognition of Jewish judicial autonomy, and on the other

hand, the existence of a functioning Jewish justice system for civil and religious

disputes in the London community until the mid-nineteenth century. Aspects of that

system are still relevant and, in recent times, controversial, as mentioned above.

How was it possible to travel from such a bleak beginning for Jewish justice to a

point where Menasseh’s community managed not only to establish its own internal

20 See, for example, the London Beth Din’s guidance at https://www/theus.org.uk/article/arbitration-

dinei-torah (Accessed 20 January 2021). 21 The Commission on Religion and Belief in British Public Life, "Living with Difference: Community, Diversity and the Common Good", (Cambridge: The Woolf Institute, 2015). 22 For the legal principles underpinning non-justiciability see Russell Sandberg, Law and Religion

(Cambridge: Cambridge University Press, 2011), 72-76; Julian Rivers, The Law of Organized

Religions: Between Establishment and Secularism (Oxford: Oxford University Press, 2010), 100-107.

cf., the literature on the JFS case, when the Supreme Court ruled that a Jewish school had directly and

indirectly discriminated against a pupil who had been refused a school place because he did not

satisfy the matrilineal descent test of the Office of the Chief Rabbi and London Beth Din: Didi

Herman, An Unfortunate Coincidence: Jews, Jewishness, and English Law (Oxford: Oxford

University Press, 2011), 157-175. Christopher McCrudden, "Multiculturalism, Freedom of Religion,

Equality, and the British Constitution: The JFS Case Considered", Int J Constitutional Law 9 (2011),

200-229. Jason Ordene, "Who Is a Jew - an Analytical Examination of the Supreme Court of the

United Kingdom's JFS Case: Why the Matrilineal Test for Jewish Identity Is Not in Violation of the Race Relations Act of 1976 Note", Rutgers J. L. & Religion 13 (2011), 479-511; Lisa Fishbayn Joffe,

"Review: An Unfortunate Coincidence", The Modern Law Review 75 (2012), 936-942; Peter Danchin

and Louis Blond, "Unlawful Religion: Modern Secular Power and the Legal Reasoning in the JFS

Case Special Issue: Politics of Religious Freedom", Md. J. Int'l L. 29 (2014), 419-480; Aaron R.

Petty, "Faith, However Defined: Reassessing JFS and the Judicial Conception of Religion", Elon L.

Rev. 6 (2014), 117-150; Heather Miller Rubens, "Something Has Gone Wrong: The JFS Case and

Defining Jewish Identity in the Courtroom", Md. J. Int'l L. 29 (2014), 366-418.

13

Jewish justice framework but also to maintain it for a long period without

interference from state authorities? Given the state’s refusal of judicial autonomy,

what exactly was the nature of the space in which the London community practised

Jewish justice? And related to that issue, what enabled that space to endure for so

long?

Researching the answers to those questions exposed a series of layered sub-

questions. Firstly, given the primacy of the prohibition against ῾arka’ot shel goyim,

what was the role of halakhah in lay justice? Did halakhic principles facilitate or

hinder the effective functioning of the community’s Jewish justice framework? What

were the challenges the lay justice system faced in maintaining its jurisdiction? As I

would discover, the answers to these questions revealed that the inherent flexibility

of the halakhic legal framework enabled creative adaptations of the central principle

to aid the functioning of lay justice in the face of its greatest challenge - an

individual congregant’s access to non-Jewish justice.

Secondly, to what degree did the specific cultural background of London’s

Portuguese Sephardic community facilitate establishing and maintaining their lay

justice system? Their unique identity and historical background created the ideal

circumstances for them to transport to London a lay justice system based on

resolving disputes by mediation or arbitration that fitted well with English attitudes

to settling disputes. This emphasis on consensual resolution of disputes focused

attention on the practical mechanics of the lay justice system, rather than the

paradigm of Jewish justice delivered through formal judicial autonomy granted by

the state, as Menasseh had originally envisaged.

Thirdly, and related to the paradigm of lay justice, I wanted to ascertain the degree to

which the English legal system precluded or facilitated a Jewish judicial space in

which compromise of disputes might flourish. What barriers were there in English

law that may have prevented individual Jews from seeking assistance from the

English courts? What transpired from the encounter of English judges with ‘real’

Jews rather than the mythical Jews deployed in legal discourse? What advantages or

disadvantages flowed to Jews from this encounter? It became apparent that,

underneath the superficial story of unrestricted access to English courts, there lay a

richer narrative of English judges abandoning legal discourse that could have

14

prevented Jews from accessing English courts at all. In reality, open access to

English justice inevitably impacted on the Jewish judicial framework and shaped a

narrower space for it, in which it struggled to claim exclusive jurisdiction even over

religious matters such as personal status.

Fourthly, the absence of Jewish judicial autonomy, combined with open access to the

English courts, created difficult conditions for the London community to establish

and maintain a viable and vibrant Jewish judicial space. The most obvious problem

was how to prevent congregants rejecting the Tribunal in favour of litigating their

civil disputes in the English courts. What could the Livros’ case notes tell us about

how the Tribunal confronted this problem? Drawing on theories of legal pluralism, it

was possible to analyse how the relationship between individual congregants, the

Tribunal and the English courts functioned as a communicative process. Legal

pluralism theories identified that a strong principle underpinned the community’s

vision for Jewish justice that privileged process rather than law. Adopting a

pragmatic approach to the difficult conditions it faced, the Tribunal did not insist that

civil disputes be resolved according to Jewish law (or indeed English law for that

matter). Instead, process became the pragmatic solution to the challenges of

maintaining a civil jurisdiction at all in the face of competing local courts,

particularly in relation to the most common types of disputes among congregants,

which arose from debt claims.

While process worked relatively well as a control mechanism for debt claims, it

could not adequately address the far more complex and challenging issues raised by

individuals rejecting Jewish justice for the resolution of religious disputes. This was

problematic to say the least because the halakhic legal system claimed exclusive

jurisdiction over such disputes. In focusing on disputes about the validity of

marriages and their dissolution in the Livros and comparing them with the tiny

number of similar disputes litigated in English courts, I encountered in the lives of

historical litigants the complexities flowing to them and to the Jewish judicial space

from unfettered individual choice of jurisdiction. This led to the fifth and perhaps

most elusive question in my research: why did individual litigants turn to non-Jewish

courts at all? Were they simply seeking access to non-Jewish courts to leverage

enforcement action against a defendant? In the context of debt disputes,

enforcement remedies might have been decisive for plaintiffs, but what (for

15

example) might be gained from a non-Jewish court’s deliberation on the validity of a

Jewish marriage? Analysing disputes in the context of marriage and separation

exposed in its starkest form that the fault line within the community’s Jewish justice

framework often lay at the nexus between an internal failure to deliver an effective

remedy to congregants and the external reality that any claim to exclusive decision-

making authority or power rested on the shaky foundation of individual commitment

to adhere to the halakhic framework and the authority of lay justice and batei din.

Finally, it became obvious during my research that I could not ignore the issue of

how the encounter between congregants and English courts impacted the London

community’s judicial space. Was the language of ‘acculturation’, which Todd

Endelman had used so effectively to explain English Jews’ gradual adoption of the

norms of English society, a helpful interpretative tool for analysing the process of

communication between congregants, English courts, and the community’s Jewish

judicial framework? Could acculturation to English legal norms explain why the

community abandoned its lay justice system in the mid-nineteenth century?23

4 Methodology: Jewish legal history’s ‘judicial turn’

The role of Jewish judicial autonomy in the life of European Jewish communities has

come under considerable historical scrutiny since Menachem Elon’s description of

the corporatist existence of pre-modern European Jewish societies, the legal status of

which was governed by charters of privilege that framed their right to judicial

autonomy. Disruption of this model, according to Elon, only came with the

beginning of the emancipation of European Jews towards the end of the eighteenth

century, when nation-states asserted legal territoriality over all citizens regardless of

religious affiliation.24 As David Horowitz has observed, several of the twentieth

23 Todd M. Endelman, The Jews of Georgian England 1714-1830: Tradition and Change in a Liberal

Society (Ann Arbor: University of Michigan Press, 1999). 24 Menachem Elon, Jewish Law: History, Sources, Principles: Ha-Mishpat Ha-Ivri, trans. Bernard

Auerbach and Melvin J. Sykes, 4 vols. (Philadelphia: Jewish Publication Society, 1994), 1-45; "The

Legal System of Jewish Law", N.Y.U. J. Int'l L. & Pol. 17 (1984), 221-244

16

century’s prominent Jewish historians shared Elon’s emphasis on the centrality of

judicial autonomy pre-emancipation.25

Recent historical studies challenge this model of isolated, autonomous Jewish courts

during the early modern period and beyond.26 They follow what Evelyne Oliel-

Grausz describes as the ‘judicial turn’ among historians who situate their detailed

analysis of Jewish communal archival material within the broader legal culture of the

society in which Jews and Jewish courts existed.27 Their work reveals the practical

reality of the interconnected relationship between Jews, Jewish courts, and the

surrounding non-Jewish legal culture already in the early modern period.28 They also

clarify that ‘judicial autonomy’, and ‘legal autonomy’ are not interchangeable

terms.29 While both terms imply either explicit or implicit toleration of autonomy by

governmental authorities, the former term more narrowly describes the functioning

of Jewish courts in wider society whereas the latter term concerns the far broader

functions of internal Jewish self-government.

25 David H. Horowitz, "Fractures and Fissures in Jewish Communal Autonomy in Hamburg, 1710–

1782" (PhD diss., Columbia University, 2010). cf. Jacob Katz, Tradition and Crisis: Jewish Society

at the End of the Middle Ages, trans. Bernard Dov Cooperman (Syracuse, NY: Syracuse University

Press, 2000). According to Katz (217), from the early eighteenth century even those states which had

granted legal autonomy to Jewish communities became interested in controlling the finances and

administration of communities, with the result that the ‘internal autonomy of the kehila [community]

and medina [state] were seriously breached.’ 26 Andreas Gotzmann, "At Home in Many Worlds? Thoughts About New Concepts in Jewish Legal

History", Jahrbuch des Simon-Dubnow-Instituts 2 (2003), 424-436. For problems concerning

periodization in Jewish history, see David B. Ruderman, "Looking Backward and Forward:

Rethinking Jewish Modernity in the Light of Early Modernity", in The Cambridge History of Judaism: Vol. 7: The Early Modern World, 1500-1815, ed. Jonathan Karp and Adam Sutcliffe

(Cambridge: Cambridge University Press, 2018), 1089-1109; Early Modern Jewry: A New Cultural

History (Princeton: Princeton University Press, 2010); Jonathan I. Israel, European Jewry in the Age

of Mercantilism, 1550-1750, 3rd ed. (Oxford: Littman Library of Jewish Civilization, 1998); Jonathan

Karp and Adam Sutcliffe, "Introduction", in The Cambridge History of Judaism: Vol. 7: The Early

Modern World, 1500-1815, ed. Jonathan Karp and Adam Sutcliffe (Cambridge: Cambridge

University Press, 2018), 1-7; Elliott Horowitz, "How Early Did We Become Modern?", The Jewish

Quarterly Review 104 (2014), 259-262. 27 Evelyne Oliel-Grausz, "Dispute Resolution and Kahal Kadosh Talmud Torah: Community Forum

and Legal Acculturation in Eighteenth-Century Amsterdam", in Religious Changes and Cultural

Transformations in the Early Modern Western Sephardic Communities, ed. Yosef Kaplan (Leiden:

Brill, 2019), 228-257. On the ‘legal turn’ in Jewish studies see Jay R. Berkovitz and Ephraim Kanarfogel, "Introduction", Jewish History 31 (2017), 1-6. 28 For a survey focusing primarily on Ashkenazi communities, see Verena Kasper-Marienberg, "From

Enlightenment to Emancipation", in The Cambridge Companion to Judaism and Law, ed. Christine

Hayes (Cambridge: Cambridge University Press, 2017), 189-214. 29 Elisheva Carlebach, "The Early Modern Jewish Community", in The Cambridge History of

Judaism: Vol. 7: The Early Modern World, 1500-1815, ed. Jonathan Karp and Adam Sutcliffe

(Cambridge: Cambridge University Press, 2018), 168-198: 192.

17

Jay Berkovitz’s study of the legal culture of Metz’s Ashkenazi community in France

exposes how its rabbinical court creatively adapted to the challenges it faced from

the increasingly legally interventionist state and local courts in pre-revolutionary

France.30 Edward Fram’s study of Frankfurt am Main’s litigation records reveals the

concern of the eighteenth-century rabbinical authorities to the rising numbers of

Jews using non-Jewish courts instead of litigating internally within the community.31

In his study of the eighteenth-century Hamburg-Altona-Wansbeck community,

David Horowitz argues that the decline of that community’s autonomy resulted from

changing government policies as well as the impact of the rise in the numbers of

individual Jews petitioning state courts about civil disputes.32 Verena Kasper-

Marienberg’s survey of European Jewish communities highlights that the decline in

judicial autonomy cannot simply be attributed to weakened rabbinical authority.

Individual choice of jurisdiction for ‘conditional and pragmatic reasons’ played an

important role too, as Fram’s work attests.33 She also emphasises that, although

Jewish legal traditions were not entirely ruptured by emancipation, the loss of state

enforcement power ‘slowly transformed [rabbinic courts] into a voluntary

jurisdiction.’34

Fitting Elon’s traditional model of Jewish judicial autonomy, with its strong

correlation between formal charters of privilege, corporatist organisational

structures, and broad-based rabbinic and/or lay judicial authority within Jewish

communities, to Western-Iberian Sephardi communities is even more problematic

than for Ashkenazi communities. In Livorno, where charters of privilege gave the

Sephardi Jewish community wide ranging powers, there was no absolute

relinquishing of control over legal disputes between Jews.35 In seventeenth-century

30 Jay R. Berkovitz, Protocols of Justice: The Pinkas of the Metz Rabbinic Court 1771-1789, Studies

in Jewish History and Culture Vol. 44 (Leiden: Brill, 2014); Law's Dominion, Studies in Jewish

History and Culture (Leiden: Brill, 2020). 31 Edward Fram, A Window on Their World: The Court Diary of Rabbi Hayyim Gundersheim,

Frankfurt Am Main 1773-1794 (Cincinnati, Ohio: Hebrew Union College Press, 2012). This personal

record of bet din rulings kept by Rabbi Hayyim Gundersheim, who served on Frankfurt Am Mein’s

bet din, indicates that individual litigation choices were influenced by the gradual encroachment of

state cultural norms. To stem the use of state courts, the bet din revived a fifteenth century practice which required litigants to ‘sign an agreement that they would “affirm and abide by “(le-asher u-le-

qayyem) the court’s decision before the court would consider the case.’ Quotation at p. 62. 32 Horowitz, "Fractures and Fissures", 237-243. 33 Kasper-Marienberg, "From Enlightenment", 197. 34 Ibid., 210. 35 Francesca Trivellato, "The Port Jews of Livorno and Their Global Networks of Trade in the Early

Modern Period", in Jews and Port Cities 1590-199: Commerce, Community and Cosmopolitanism,

18

Venice, Robert Bonfil and David Malkiel have shown that, despite the existence of

charters of privilege, the space for traditional judicial autonomy was narrow. While

the Venetian state recognised the community’s right of self-government and was

prepared to enforce its communal decrees, it jealously guarded its right to oversee

mercantile and criminal disputes and only tolerated Jewish judicial authority

exercisable within the structure of arbitration.36 Despite only partial recognition of

judicial autonomy, Hugo Martins highlights that the Sephardi communal authorities

in seventeenth-century Hamburg managed to strengthen their authority over legal

disputes.37

Whether judicial autonomy of any description existed in seventeenth-century

Amsterdam is highly contested. Yosef Kaplan considers that, despite the absence of

a formal charter of privilege, Amsterdam’s Jewish community had a de facto

corporatist model based on the right of excommunication of its members.38 In

contrast, Daniel Swetschinski treats the community as part religious association, part

mercantile colony, while Evelyne Oliel-Grausz likens the community’s justice

system to that of a ‘self-ruled church’ which was ‘embedded in the local court

system by a process of mutual legal acculturation, a combination of a strong local

and Jewish culture of arbitration, shaped here by the institutional predominance of

the Mahamad.’39 Elisheva Carlebach aptly summarises the effect of this judicial turn

when she states that ‘[r]ather than seeing Jews as operating an independent judicial

system alongside other systems, scholars have now come to a consensus that, in

many times and places, judicial (or legal) pluralism better describes the state of

affairs than the term “autonomy.” Prevailing norms in non-Jewish courts may have

ed. David Cesarani and Gemma Romain (London: Vallentine Mitchell, 2006), 33-34. The massari

when sitting as a court were ‘fully embedded in the Tuscan legal architecture’: Oliel-Grausz, "Dispute

Resolution", 252. 36 Robert Bonfil, Rabbis and Jewish Communities in Renaissance Italy, trans. Jonathan Chipman

(London: Littman Library of Jewish Civilization, 1993); David Malkiel, A Separate Republic: The

Mechanics and Dynamics of the Venetian Jewish Self-Government 1607-1624, Supplement to "Italia"

(Jerusalem: Magnes Press, The Hebrew University, 1991); "The Tenuous Thread: A Venetian

Lawyer's Apology for Jewish Self-Government in the Seventeenth Century", AJS Review 12 (1987),

223-250. 37 Hugo Martins, "Justiça E Litigação Na Comunidade Judaico-Portuguesa De Hamburgo, 1652-1682", Ler História 74 (2019), https://journals.openedition.org/lerhistoria/4566. (Accessed

15/07/2019) 38 Yosef Kaplan, An Alternative Path to Modernity: The Sephardi Diaspora in Western Europe

(Leiden: Brill, 2000). 39 Daniel Swetschinski, Reluctant Cosmopolitans: The Portuguese Jews of Seventeenth-Century

Amsterdam (London: Littman Library of Jewish Civilization, 2000); Oliel-Grausz, "Dispute

Resolution".

19

exercised strong and unwritten influence on Jewish judges who acted to prevent the

need for recourse to non-Jewish courts.’40

As Oliel-Grausz has herself acknowledged, her interpretative tool of ‘embedded

justice’ sets the London community completely outside the framework of the English

legal system.41 Indeed, fitting the English Jewish community into the traditional

framework of legal autonomy or judicial autonomy has long been problematic.

Writing about the ‘environmental factors’ which shaped Jewish communities, Salo

Baron included ‘recognition by public law’, but had to concede that the English

Jewish community had a hybrid communal structure, subject only to some state legal

recognition of communal organizational structures, without any of the powers of

autonomous corporatist Jewish communities.42 Anglo-Jewish history’s early scholars

Lucien Wolf and Cecil Roth – proponents of the Whig school of history – both saw

the absence of a statutory framework as an opportunity for Jews to advance

gradually towards full emancipation through incremental changes in English law.43

H.S.Q Henriques’s work remains the starting point for legal history and the Jews,

though some of his historical observations been updated by modern Anglo-Jewish

historians.44 For example, Todd Endelman’s social history of English Jews

highlights how the Jewish community’s voluntaristic nature gave individual Jews

unparalleled personal freedom, and facilitated their integration into English society

and acculturation to its social norms without interference from the state.45 Endelman

argues that the English rabbinical authorities had no civil jurisdiction to speak of and

only limited jurisdiction over religious matters because the English ecclesiastical

courts claimed exclusive jurisdiction over marriage and divorce. He writes that

40 Carlebach, "Early Modern", 194. 41 Oliel-Grausz, "Dispute Resolution", 250, 252. 42 Salo W. Baron, The Jewish Community: Its History and Structure to the American Revolution

(Westport, Conn: Greenwood Press, 1972), 20-22. While Elisheva Carlebach criticises Baron’s over-

reliance on talmudic sources, she states that he ‘was far more correct than he could have known about

the deep integration of Jews in the legal and political cultures of their societies…Jews took their

“internal” disputes and business to non-Jewish courts far more than rabbinic literature would have

allowed us to image.’ See Elisheva Carlebach, "Between Universal and Particular: Baron's Jewish

Community in Light of Recent Research", AJS Review 38 (2014), 417-421: 418. 43 See Lucien Wolf, "Status of the Jews after the Re-Settlement", Transactions (Jewish Historical Society of England) 4 (1899), 177-193; Cecil Roth, "New Light on the Resettlement", ibid.11 (1924),

112-142. Roth argues that the ‘differentiatory spirit’ to which continental Jewish communities were

subject was absent from England since an essentially medieval framework had not been enacted on

resettlement: ibid., 134-135. 44 H. S. Q. Henriques, The Jews and the English Law (Oxford: Printed by Horace Hart. At the

University Press, 1908). Page citations throughout are to the 1974 reprint: Jews and English Law. 45 Endelman, Jews of Georgian England, 119.

20

‘[f]rom the very first years of the Resettlement, Jews had full access to state courts

and only turned to their own religious courts to settle cases involving marriage,

divorce, and kashrut.’ He cites ‘the polemicist Solomon Bennett (1761-1838) [who]

wrote in 1818, [that] it was not “necessary for a rabbi in this country [i.e., England]

to be overstocked with difficult learning,” for in most civil matters, including

inheritance, Jews went to the courts of the realm.’46 That this is true of the Ashkenazi

Anglo-Jewish community of the nineteenth century is confirmed by Jeremy Pfeffer’s

analysis of the pinkassim (registers) of the Great Synagogue’s Bet Din (the

forerunner of the modern London Bet Din), which mostly record religious rather

than civil matters.47

Scholarly focus on rabbinical authority from an Ashkenazi perspective overlooked that

the London Sephardi community had a thriving lay civil legal jurisdiction, probably

because the Livros only came to academic attention following Edgar Samuel’s article

treating the Mahamad as an arbitration tribunal. 48 Since then, Alex Kerner has

extensively researched and analysed the Livros from a social history perspective,

providing a richly layered body of work treating the social significance of the Tribunal

in the lives of its users.49 Approaching the same material from the very different

perspective of legal theory and legal history, this thesis takes the analysis in alternative

directions which further enrich our understanding and appreciation of the Livros as an

exciting, new historical resource. The Livros, of course, share the limitations of many

legal documents that they were designed to record or capture information valued by

their compilers. Consequently, they do not give direct voice to litigants’ motivations

and expose in detail their decision-making processes. Reading the Livros against a

broader halakhic and English legal context goes some way to address these limitations.

46 Ibid., 142-143. 47 Jeremy I. Pfeffer, 'From One End of the Earth to the Other': The London Bet Din, 1805-1855, and

the Jewish Convicts Transported to Australia (Brighton: Sussex Academic Press, 2008), 90. 48 Edgar Samuel, "The Mahamad as an Arbitration Court", Jewish Historical Studies 41 (2007), 9-30. 49 Alex Kerner, "Arbitration and Conflict Resolution in the Spanish and Portuguese Jews' Congregation in London in the Eighteenth Century", ibid.49 (2017), 72-105; "The “Livro De Pleitos”:

The Leadership of the Spanish and Portuguese Community of London in the Eighteenth Century as a

Court of Requests", in Religious Changes and Cultural Transformations in the Early Modern Western

Sephardic Communities, ed. Yosef Kaplan, Studies in Jewish History and Culture (Leiden: Brill,

2019), 258-287; "Shirts, Biscuits, and Underpants: Unveiling the Lower Social Strata of London’s

Sephardi Congregation in the Eighteenth Century through Its Inner Arbitration Court", Jewish

Historical Studies 50 (2018), 45-68.

21

Inevitably, some reading between the lines is necessary to imagine or reconstruct the

jurisdictional choices of individual litigants.50

Methodologically, my analysis focuses on the functionality and effectiveness of the

Tribunal as a Jewish dispute resolution service, as well as the sometimes technically

challenging details of English law and procedure that informed individual choice of

non-Jewish courts as a forum for civil dispute resolution. For the first time, this thesis

integrates what the Livros tell us about the resolution of marriage disputes inside the

community with cases litigated in the ecclesiastical courts to provide a comprehensive

analysis of the Jewish and English legal issues and historical context to these marriage

cases, matters only touched on in Kerner’s research. This integrative approach

explains how the halakhic system privileges the resolution of disputes by Jewish

judges rather than privileging the application of halakhah alone to disputes; how the

halakhic legal system’s distinction between monetary and religious disputes is

reflected in the historical development of the London community’s justice system, and

analyses how halakhic ideas about compromising disputes were incorporated into the

Tribunal’s functioning. As to English law and legal history, I rely on the work of

English legal historians spanning different centuries and different legal subjects, for

example, Keechang Kim’s analysis of the history of English citizenship; Margot

Finn’s work on courts of request as eighteenth-and-nineteenth century locations for

debt collection; and Rebecca Probert’s work on clandestine marriage.51

Before the court reforms of the mid-nineteenth century, England had a pluralist legal

culture, in the sense that formal judicial decision-making was dispersed across many

local and central courts, and existed alongside ‘informal means of dispute settlement

and local community procedures’.52 For this reason, I have been reluctant to follow

50 Joanne Bailey, "Voices in Court: Lawyers’ or Litigants’?", Historical Research 74 (2001), 392-408;

Lamar M. Hill, ""Extreame Detriment": Failed Credit and the Narration of Indebtedness in the

Jacobean Court of Requests", in Law and Authority in Early Modern England: Essays Presented to

Thomas Garden Barnes, ed. Buchanan Sharp and Mark Charles Fissel (Newark: University of

Delaware Press, 2007). 51 Keechang Kim, Aliens in Medieval Law: The Origins of Modern Citizenship, Cambridge Studies in

English Legal History (Cambridge: Cambridge University Press, 2000); Margot Finn, The Character

of Credit: Personal Debt in English Culture, 1740-1914 (Cambridge: Cambridge University Press,

2003); Rebecca Probert, Marriage Law and Practice in the Long Eighteenth Century: A Reassessment

(Cambridge: Cambridge University Press, 2009). 52 H. W. Arthurs, Without the Law: Administrative Justice and Legal Pluralism in Nineteenth-Century

England (Toronto: University of Toronto Press, 1985), 8; Quotation in Craig Muldrew, "The Culture

22

Evelyne Oliel-Grausz’s suggestion of replacing legal pluralism as an interpretative

tool with her notion of ‘embedded justice’ in relation to the London community’s

justice system. Her principal objection to legal pluralism theories is that they are ‘of

limited analytical use unless broken up into subnotions and categories’.53 Yet other

Jewish studies historians, most notably Berkovitz, Jessica Marglin, and Uriel

Simonsohn, rely extensively and productively on legal pluralism as an overarching

theory without significant problems associated with its theoretical complexities.54

While these complexities are undoubtedly challenging, I am unconvinced that

‘embedded justice’ as an interpretative theory is sufficiently expansive to describe

both the internal functionality of the London community’s judicial space as well as

its external relationship with the English legal system. As I have already mentioned,

the Livros seldom explicitly refer to halakhic or English law, which raises the

obvious difficulty whether the London community’s justice system can be

considered a legal system at all. Engaging with legal pluralism theory overcomes this

and many other problems arising from analysis of a justice system predicated on

resolving disputes through a process of compromise before laymen, as it exposes its

underlying functionality as a Jewish judicial space rather than simply a normative

social field. I use the word ‘functionality’ in a broad sense to encompass

investigating how the community envisioned its dispute resolution system, how that

vision was translated into practical reality as well as analysing how it, and its users,

related to wider English legal culture.

It is possible to engage with sub-notions of legal pluralism and several core

theoretical concepts have influenced my research.55 My starting point is John

Griffiths’s challenge to Western positivist notions of law as always emanating from

of Reconciliation: Community and the Settlement of Economic Disputes in Early Modern England",

The Historical Journal 39 (1996), 915-942: 918. Whether access to justice was available to all as a

result is a different question: see David Lemmings, Law and Government in England During the Long

Eighteenth Century: From Consent to Command (Basingstoke: Palgrave Macmillan, 2011), 56-80. 53 Oliel-Grausz, "Dispute Resolution", 247. 54 Berkovitz, Protocols, 183-194; Jessica M. Marglin, Across Legal Lines: Jews and Muslims in Modern Morocco (New Haven: Yale University Press, 2017), 12; Uriel I. Simonsohn, A Common

Justice: The Legal Allegiances of Christians and Jews under Early Islam (Philadelphia: University of

Pennsylvania Press, 2011). 55 This approach is not new, nor is my reliance on the legal theorists discussed below, though I apply

the theorists in a micro rather than macro context. See Paul A. Halliday, "Law's Histories: Pluralisms,

Pluralities, Diversity", in Legal Pluralism and Empires, 1500-1850, ed. Lauren Benton and Richard J.

Ross (New York: New York University Press, 2013), 261-277.

23

the state (‘legal centralism’) and Sally Falk Moore’s concept of the ‘semi-

autonomous social field’ which led Griffiths to what he at the time thought was a

comprehensive theory of legal pluralism that accounted for ‘the presence in a social

field of more than one legal order’.56 Sally Engle Merry’s discussion of the

asymmetric differences in power as between the state and normative orders was

helpful in analysing the effect the Tribunal’s lack of enforcement power had on its

functioning.57 Brian Tamanaha’s insight that law was what people in a social

context considered to be law explained how a system that apparently did not apply

‘law’, nevertheless was regarded by the London community as a functioning justice

system.58 To meet the objection that, taken to its logical conclusion, any type of

social interaction could be termed ‘law’ if enough people treated it as such, I have

relied on Günther Teubner’s observation that legal pluralism does not have to be

predicated on finding ‘conflicting social norms in a given social field’ but instead

can be found in ‘a multiplicity of diverse communicative processes that observe

social action under the binary code legal/illegal’.59

Legal pluralism theory has also expanded into many disciplines, including

application to the halakhic legal system. Suzanne Last Stone and other scholars have

written about the halakhic framework’s flexibility in evolving concepts capable of

enabling it to survive and thrive, notwithstanding the competing legal systems of the

countries in which Jews resided, for example, dina de-malkhuta dina (lit. the law of

the kingdom is the law).60 Although Robert Cover was not a legal pluralism theorist

as such, his concept of the nomos, the normative universe held together by the

interpretative commitments of people committed to a vision of justice, has been

56 John Griffiths, "What Is Legal Pluralism?", Journal of Legal Pluralism & Unofficial Law 24

(1986), 1-56; Sally Falk Moore, "Law and Social Change: The Semi-Autonomous Social Field as an

Appropriate Subject of Study", Law & Society Review 7 (1972), 719-746. 57 Sally Engle Merry, "Legal Pluralism", ibid.22 (1988), 869-896. 58 Brian Z. Tamanaha, "Understanding Legal Pluralism: Past to Present, Local to Global", Sydney L.

Rev. 30 (2008), 375-411. 59 Gunther Teubner, "The Two Faces of Janus: Rethinking Legal Pluralism. (Closed Systems and

Open Justice: The Legal Sociology of Niklas Luhmann)", Cardozo L. Review 13 (1992), 1443-1462:

1451. 60 Suzanne Last Stone, "Sinaitic and Noahide Law: Legal Pluralism in Jewish Law", Cardozo Law Review 12 ((1990 - 1991)), 1157-1214; Nahum Rakover, "Jewish Law and the Noahide Obligation to

Preserve Social Order", Cardozo L. Rev. 12 (1990), 1073-1136; Aaron Kirschenbaum and Jon

Trafimow, "Sovereign Power of the State: A Proposed Theory of Accomodation in Jewish Law",

ibid., 925-940; Malvina Halberstam, "Interest Analysis and Dina De-Malkhuta Dina, a Comment on

Aaron Kirschenbaum, the Sovereign Power of the State: A Proposed Theory of Accommodation in

Jewish Law Symposium", ibid. (1990-1991), 951-958; Chaim Povarsky, "Jewish Law v the Law of

the State: Theories of Accommodation", ibid., 941-950.

24

particularly helpful in explaining the disconnection between the Mahamad’s vision

of justice and its actualisation.61 His theory creates room for acknowledging the

idealised vision of the Mahamad that congregants resolve their disputes before

Jewish judges, as well as the messy reality of the difficulties in achieving that vision.

We can see that, to the London community, there was a world of legal meaning in

their justice system – of the religious and social value of litigating before Jewish

judges and avoiding non-Jewish courts, of Judaism’s privileging of compromise as a

dispute resolution mechanism, of the recognition that a recalcitrant defendant should

not defeat the ends of justice. There was a world of narrative too – of the way in

which vision was translated into reality in Ascamot and the practical day-to-day

functioning of their lay justice system.62

I use several archival sources to analyse the community’s vision for their Jewish

judicial space and its practical functioning. As well as the Livros themselves (which

are described in detail in Chapter IV), the London community’s archival records at

the London Metropolitan Archives (the ‘LMA’) have been a valuable resource for

understanding how the lay and rabbinical judicial authorities worked together to

realise the community’s vision for a Jewish judicial space. Governance policy is

recorded in the Books of Ascamot and Orders and Resolutions, while day-to-day

administrative business recorded in the minutes of the Elders and the Mahamad

provides rich detail about individual disputes, as well as insight into the

implementation of policy.63 In relation to English court records, I focused on the

surviving records of the City of London Court of Requests at the LMA, the main

venue for small debt collection for most congregants. Where necessary, I have

supplemented the formal legal reports of the marriage and divorce cases involving

61 Robert M. Cover, "The Supreme Court, 1982 Term-Foreword: Nomos and Narrative", Harvard

Law Review 97 (1983), 4-68. Cover’s essays are collated and critiqued in Martha Minow, Michael

Ryan, and Austin Sarat, eds., Narrative, Violence, and the Law: The Essays of Robert Cover (Ann

Arbor: University of Michigan Press, 1992). Hereinafter, I cite page references in this volume. 62 Narrative, Violence and the Law, 95, 96, 98-99, 101. 63 All original records are at the LMA. The National Library of Israel holds digitised copies of

minutes of the Elders and the Mahamad. There is an exception to the Mahamad’s practice to record

civil disputes in the Livros, rather than in their minutes. One of the Mahamad Minute Books

(LMA/4521/A/01/03/002, 6 Nisan 5511/[21 March 1751] to 7 Kislev 5536/[30 November 1775],

numbered MS0105 according to the community’s archival system) also contains civil cases,

sometimes headed ‘Pleitos’ (Lawsuits). These disputes have remained unnoticed, and space and time

did not permit me to incorporate them.

25

Sephardi litigants with research at Lambeth Palace Library, where the underlying

pleadings and evidence is kept.

5 Chapter outline

The London community’s vision for their Jewish judicial space was rooted in some

foundational halakhic principles about the exercise of justice, as well as the Western-

Iberian Sephardi transnational legal culture. In Chapter II, I discuss the relevant

halakhic principles, including the competing values of litigating before Jewish

judges and preventing recalcitrant defendants from denying plaintiffs access to

justice. As we will discover, halakhic principles facilitated access to state courts

across time and place, challenging the myth that Jewish courts were isolated from

wider legal culture. I then explain that the emphasis on compromising disputes can

be traced to the arbitration culture of Venice and Amsterdam’s Portuguese Jewish

communities. In Chapter III, I turn to England to show how this emphasis on

compromise chimed with English attitudes towards mediation and arbitration as

valuable forms of dispute resolution. Although these attitudes were supportive of

informal dispute resolution, they do not address what response English courts might

have to Jews who litigated in English courts.

I continue in Chapter III to examine in detail Menasseh ben Israel’s plea for judicial

autonomy and the authorities’ response that the Jews should be denied any rights

beyond those granted to strangers. I contrast the negative attitudes in English case

law towards mythical Jews before resettlement with the positive response real Jews

received when they began litigating disputes in English courts. But this positive

attitude was not without its pitfalls since an expansive English jurisdiction over all

disputes between Jews had the potential to emasculate the Jewish judicial space. I

explore this issue through the cases congregants brought to the ecclesiastical courts

and local debt courts, demonstrating that while the ecclesiastical courts knew of and

acknowledged a space for Jewish justice over religious matters such as marriage and

divorce, there is no evidence that civil courts conceded jurisdiction over debt

disputes to the Tribunal, save to acknowledge that Jews, like other subjects, were

entitled consensually to resolve disputes as they pleased.

26

The remaining three chapters are devoted to an in-depth analysis of the Livros. In

Chapter IV, I return to Menasseh’s plea, but this time in the practical context of the

Mahamad’s project to establish a functioning Jewish justice system. I first analyse

the community’s vision for their justice system as articulated over time in their

Ascamot, and then assess the reality by focusing on debt disputes which were the

‘bread and butter’ of the Tribunal’s workload. I unpick the symbiotic relationship

between individual court users and the Tribunal, which had a fundamental impact on

its functioning and effectiveness. Rather than being a weak institution, I conclude

that the longevity of the Tribunal stemmed from its adaptability and flexibility,

making it resilient against the pressures it faced from the ability of individuals to

litigate in English courts.

In Chapter V, I revisit marriage and divorce disputes from a different perspective,

namely, to investigate the internal challenges to the Tribunal in an area of law which,

according to the halakhic legal framework, should have been under their exclusive

jurisdiction. Through an analysis of similar cases heard by the Tribunal and the

ecclesiastical and magistrates’ courts, I bring into focus the impact that individual

choice of jurisdiction had on the Tribunal’s work. This approach reveals why

English justice was so attractive to a small minority of individuals who could not

find a solution to their difficulties within the community. It also demonstrates that,

contrary to Endelman’s assertion, litigation in the ecclesiastical courts about

marriage matters was extraordinarily rare and is not indicative of extensive flouting

of communal and rabbinical authority in relation to personal status.64

As to the rabbinical authorities, in Chapter VI I analyse the complex relationship

between the Tribunal and the Beth Din in civil and religious disputes. The Livros

reveal that salaried rabbinical staff sometimes had a fraught relationship with the

Mahamad, but when it came to ruling on matters of halakhah, the decisions of the

Beth Din were invariably respected.

Finally, in Chapter VII, I draw these strands together to discuss the broad trend

towards fashioning a Jewish judicial space along the modern lines outlined at the

beginning of this Chapter. I discuss the trajectory of growing disaffection with lay

justice in the nineteenth century that culminated in the demise of the Livros in 1868.

64 Endelman, Jews of Georgian England, 142-143.

27

As well as the communal-facing issues contributing towards this development, I

explain how the English legal system’s movement towards legal centralism displaced

the last bastion of pluralistic, informal, lay-led civil justice, the local courts of

request, by absorbing them into county courts staffed by professional judges and

lawyers. I identify the problems with replying solely on acculturation as an

interpretative tool to analyse legal-historical frameworks and argue instead that the

dynamics and nuances of the Jewish judicial space developed by the London

Sephardi community can best be understood by utilising legal pluralism theories to

redirect attention to the interpretative commitments and practical deliberations that

together shaped the actions of rabbinic authorities, lay judges and litigants.

28

II. INFLUENCES FROM JEWISH LEGAL CULTURE

1 The halakhic framework of the Tribunal

The lay justice Tribunal of the London community was more than a practical vehicle

for dispute resolution; it was a body rooted in a transnational judicial culture that can

be traced to the community’s origins in Amsterdam and Venice.1 The judicial model

underlying the work of the Tribunal also reflected long-established interlocking

halakhic principles governing the interaction between Jewish and non-Jewish courts.

The Tribunal held in tension two seemingly diametrically opposing influences: the

desire to deliver a justice system that accorded with established halakhic and

communal norms, as well as the practical reality of competing with English courts

whose far-reaching jurisdiction overlapped with theirs.

Despite the seemingly all-encompassing prohibition against the use of non-Jewish

courts, halakhah provides two openings through which Jewish courts may negotiate

their relationship with another legal system, the concepts of mamon and issur

(broadly civil and economic law, and religious law respectively) and the concept of

dina de-malkhuta dina (the law of the land is the law).2 These two legal concepts

have enabled the Jewish courts to militate against the practical difficulties of

sustaining a workable court system in a diasporic context that at once ostensibly

prohibited the use of non-Jewish courts through the rule of ῾arka’ot shel goyim

(tribunal of gentiles) while at the same time acknowledging that there were practical

circumstances in which either the host legal system compelled its use or Jewish

litigants themselves resorted to non-Jewish courts, irrespective of the religious

injunction not to do so.3

1 ‘Tribunal’ or ‘court’ was being used in nineteenth-century administrative records and congregants’

correspondence to refer to this judicial function. I use ‘Tribunal’ to distinguish this independent,

judicial function of the Mahamad. See further Chapter IV, section 1. 2 See Noam J. Zohar and Amy Gutmann, "The Good Men of the Town", in The Jewish Political

Tradition: Vol. 1: Authority, ed. Michael Walzer, et al. (New Haven: Yale University Press, 2000), 379-429: 384; François-Xavier Licari, An Introduction to Jewish Law (Cambridge: Cambridge

University Press, 2019), 143-151. On the problems in maintaining the distinction, see Menachem

Loberbaum and Jonathan W. Malino, "The Gentile State", in The Jewish Political Tradition: Vol. I:

Authority, ed. Michael Walzer, et al. (New Haven: Yale University Press, 2000), 430-462. 3 On dina de-malkhuta dina, see Kirschenbaum and Trafimow, "Sovereign Power"; Halberstam,

"Interest Analysis"; Povarsky, "Jewish Law". These scholars discuss whether it is possible to

understand how dina de malkhuta dina operated to accommodate or reject elements of other legal

29

But, before considering these principles in greater detail, I want first to examine

more closely the talmudic source from which the prohibition derives because it is

fundamentally important to understanding the halakhic framework’s approach to lay

justice.

1.1 Lay judges

The halakhic source for the prohibition against litigating in non-Jewish courts is

attributed to a baraita of Rabbi Tarfon,4 a second-generation tanna active during the

period of concurrent Roman and Jewish judicial jurisdiction between the time of the

destruction of the Second Temple in 70 C.E. and the Bar Kokhba revolt in 132-135

C.E.5 The Babylonian Talmud states:

‘R. Tarfon used to say: In any place where you find agori’ot (non-Jewish

courts),6 even though their laws are the same as Israel’s laws, you are not

permitted to resort to them since it says, “These are the laws that you shall set

before them.”7 “Before them” and not before the gentiles.’8

According to R. Tarfon, despite the willingness of non-Jewish courts to apply Jewish

law to resolve a dispute, Jews were forbidden from submitting their disputes to non-

Jewish judges. R. Tarfon’s reference to ‘before them’ foregrounds the overriding

halakhic principle that disputes between Jews ought to be resolved by Jewish judges.

systems by analogy with modern legal principles such as conflicts of laws, contract law and constitutional theory. 4 Menachem Elon, Jewish Law: History, Sources, Principles: Ha-Mishpat Ha-Ivri, trans. Bernard

Auerbach and Melvin J. Sykes, 4 vols. (Philadelphia: Jewish Publication Society, 1994), 13; Alfredo

Mordechai Rabello, "Jewish and Roman Jurisdiction", in An Introduction to the History and Sources

of Jewish Law, ed. N. S. Hecht, et al. (Oxford: Clarendon Press, 1996), 141-167: 148. 5 On the scope of rabbinic authority in this context, see Elon, Jewish Law, 14; Rabello, "Jewish and

Roman Jurisdiction", 147-149. Both stress the threat to Jewish rabbinical courts who had to share

concurrent jurisdiction with Roman courts which were willing to apply provincial law (in this context

Jewish law modified by Roman law principles). Others minimise the actual authority of rabbinic

courts, instead stressing the primacy of Roman courts and governors and tribunals of powerful Jewish

landowners. See Seth Schwartz, Imperialism and Jewish Society, 200 B.C.E. To 640 C.E (Princeton:

Princeton University Press, 2001), 104-112. 6 Rabello argues that, since agori’ot is a Greek translation for the Latin term convensus meaning

public meetings at which Roman legal judgments were delivered, R. Tarfon’s statement demonstrates

rabbinic concern at Jews turning to Roman courts and law: Rabello, "Jewish and Roman Jurisdiction",

148. See also Yair Furstenberg, "Provincial Rabbis: Shaping Rabbinic Divorce Procedure in a Roman

Legal Environment", Jewish Quarterly Review 109 (2019), 471-499: 497 n. 86. 7 Exodus 21:1. 8 bGittin 88b.

30

This privileging of the identity of the judges adjudicating a dispute, rather than the

underlying law they apply, emphasises the primacy that talmudic jurisprudence

accords to decision-making by Jewish judges. Indeed, as Hanina Ben-Menahem

points out, ‘judging is a religious precept’ and the ‘judge’s mission transcends the

simple application of a rule to a given case. He becomes, as it were, God’s partner in

administering the law’.9 Ben-Menahem argues that the Babylonian Talmud’s

understanding of the judge as the ‘personification of the law’ is very different to the

Western idea of the judge as a duly appointed judicial functionary who must exercise

judicial discretion within the boundaries of legally binding precedent.10 In talmudic

thinking, ‘the spirit of the Torah cannot be reduced to a set of precedents’, which

means that, in the appropriate circumstances to achieve justice, a judge may deviate

from an existing rule.11 As Ben-Menahem puts it, the Western ideal of judicial

process in the dictum ‘Governed by rules, not by men’, does not accurately reflect

the ‘(Babylonian) Talmud’s orientation.’12 Whereas a litigant in the Western system

of law is entitled to a ruling as of right because a binding precedent exists in his

favour, a litigant before a talmudic court can only seek ‘the aid of the court but has

no entitlement to a favourable ruling.’13 Ben-Menahem therefore concludes that

‘[t]he converse adage, “Governed by men, not by rules,” expresses more accurately

the talmudic conception of law’.14

While Rabbi Tarfon’s dictum clarified that Jews were not permitted to submit their

disputes to non-Jewish judges, at the same time the talmudic passage in which it

appears reflected a preoccupation with the legitimacy of any Jewish judge who had

not been properly ordained by the process of semikhah (ordination) in the land of

Israel. This issue was particularly acute in a diasporic context where the traditional

method of semikhah through the laying on of hands from one ordained judge to

another did not apply. In this broader talmudic passage, we encounter a discussion

between two fourth century Babylonian judges, one of whom states that ‘before

9 Hanina Ben-Menahem, "Talmudic Law: A Jurisprudential Perspective", in The Cambridge History

of Judaism: Vol. 4: The Late Roman-Rabbinic Period, ed. Steven T. Katz, The Cambridge History of

Judaism (Cambridge: Cambridge University Press, 2006), 877-898: 895. 10 ibid. 11 Ibid., 894. 12 Ibid., 895. 13 Ibid. 14 Ibid.; See also Hanina Ben-Menahem, "Postscript: The Judicial Process and the Nature of Jewish

Law", in An Introduction to the History and Sources of Jewish Law, ed. N. S. Hecht, et al. (Oxford:

Clarendon Press, 1996), 421-437.

31

them’ was not a reference to non-Jews at all; it was a reference to these judges’

status as hedyotot (laymen or ordinary people).15 While this ‘formal-legal’ sense of

the term hedyotot did not imply that these judges were any less erudite or

knowledgeable than judges granted semikhah, it did acknowledge that all diasporic

judges were technically not ordained.16 Eventually, the principle developed that their

legitimacy rested on their acting as agents of the rabbinical sages who preceded

them.17

At the same time, hedyotot was used in its plain sense, meaning laymen untrained in,

or unfamiliar with, halakhah who did not meet the standards of judicial and legal

competence ordinarily required from a halakhically qualified judge. A court staffed

wholly or in part by judges who were not competent in halakhah was called bet din

shel hedyotot (lay tribunals).18 However, conferring unfettered judicial authority on

lay tribunals had the obvious drawbacks of potentially providing litigants with

inferior adjudication, as well as challenging rabbinical authority and expertise.19 To

meet these objections, lay tribunals’ authority was confined to certain civil disputes.

These included indebtedness claims, based on the rationale that a court should not

‘bolt the door’ against borrowers because no claimant should be denied justice for

want of finding three expert judges.20

According to Elon ‘[t]he institution of the three-judge lay court became accepted as

an essential part of Jewish law at all subsequent times.’21 During the geonic period it

was accepted that lay tribunals might be staffed by judges drawn from ‘“the elders,

scholars, and the notables of the town’”.22 Whereas the judicial authority of mumḥim

(expert judges) derived from their legal expertise and appointment to their role, lay

judges’ authority derived from their status as the social elite of their communities,

whose judicial function was just one aspect of their general communal

responsibilities.23 Already in the medieval period in Europe, the kahal (community)

15 bGittin 88b. 16 Elon, Jewish Law, 20. 17 bGittin 88b. 18 Elon, Jewish Law, 20-21. 19 Ibid., 30. On conflicting authority between different levels of competent judicial authorities in the

geonic period, see Simonsohn, A Common Justice, 135-136. 20 Elon, Jewish Law, 23 n. 74 citing bSanhedrin 3a. 21 Ibid., 23. 22 Simonsohn, A Common Justice, 138. Quoting at n. 94, Benjamin M. Lewin, Otzar Ha-Geonim

(Jerusalem: Mosad ha-Rav Kuk, 1941), 209-210:490. 23 Simonsohn, A Common Justice, 140.

32

itself came to be seen as a type of court whose berurim (select men) or the ‘good

men of the town’, had communal consent or authority to make decisions according to

the ‘needs of the hour’ about matters of mamona (such as taxation or welfare),

leaving matters of issura to the community’s rabbis.24 The self-same individuals also

adjudicated disputes between individual community members about civil or, in some

localities criminal matters, even exercising coercive powers despite the halakhic

framework’s insistence that coercion could not be exercised other than by expert

judges in the land of Israel. Coercive power exercisable by unlearned judges

particularly troubled medieval authorities, who put forward various justifications for

exercising such authority to maintain social control and to prevent litigants from

resorting to non-Jewish courts. For example, Rashba (Solomon b. Adret, 1235-

1310) justified this move on the basis that the ‘needs of the hour’ dictated that, where

halakhic legal expertise was unavailable in a particular locality, lay judges could be

appointed with the consent of the community and could exercise coercion by

authority of the king.25

The qualifications necessary to serve as a lay judge remained contentious, with

Rashba expansively permitting any man who was upright, God-fearing, and

incorruptible to serve as a lay judge, whereas Jacob b. Asher (1270-1340) more

restrictively insisted on learned men of stature serving as judges.26 It was Rashba’s

more permissive stance which found its way into the Shulḥan ῾Arukh, Joseph Karo’s

concise code of Jewish religious and civil law, composed in Safed in the 1550s and

first printed in Venice 1564-1565, that became a foundational halakhic resource

throughout the Jewish world.27 By the time the Sephardi community was established

in London, the idea of laymen adjudicating civil disputes, and even exercising

coercive authority over criminal matters, had become an accepted halakhically

compliant model for Jewish justice. As we will see in Chapter IV, the community’s

governance structure included members’ consent to be bound by the Ascamot, the

24 Zohar and Gutmann, "The Good Men", 381-386. 25 Elon, Jewish Law, 23-24, n. 78 citing Resp. Rashba, II,#290. An English translation is in Michael

Walzer, Menachem Lorberbaum, and Noam J. Zohar, eds., The Jewish Political Tradition: Vol. 3: Community (New Haven: Yale University Press, 2018), 584. 26 Tur Ḥoshen Mishpat 2, cited in Community, 585. 27 See Shulḥan ῾Arukh - Ḥoshen Mishpat 8:1 cited by Elon, Jewish Law, 26. On the ‘sweeping

acceptance in the Jewish world’ of halakhic codes: see Yosef Kaplan, "Discipline, Dissent, and

Communal Authority in the Western Sephardic Diaspora", in The Cambridge History of Judaism:

Vol. 7: The Early Modern World, 1500-1815, ed. Jonathan Karp and Adam Sutcliffe (Cambridge:

Cambridge University Press, 2018), 378-405: 378.

33

governing articles or laws of the community, which always included a provision for

civil justice to be administered by the community’s lay elite.28

While these principles resolved the issue whether laymen could exercise a judicial

function in communities in relation to civil disputes, they left open some of the

practical issues about how communities were to delineate judicial responsibility

between these laymen and halakhically qualified rabbis appointed to act as dayyanim

(judges) in a bet din. David Ruderman points out that, in the early modern period,

new communities of former conversos, such as those established in Livorno and

Amsterdam, ‘privileged and elevated lay authority’ over a subordinate rabbinate that

had become institutionalised as communally paid employees.29 According to

Carlebach, while in the early modern period ‘the primary political power in most

Jewish communities was located in the body of elected lay leaders’, by the

eighteenth century lay and rabbinic leadership were more closely aligned in order to

meet the challenges posed to communal autonomy.30 The primacy of lay leaders in

the early modern period extended into the judicial sphere, as Cooperman’s history of

rabbinic versus lay authority in Livorno illustrates. While the original 1591

Livornino (formal charter) granted to the Levantine and Ponentine Jews envisaged

rabbinic primacy, by the late seventeenth century rabbinic decisions were advisory

only and were restricted to religious and ritual matters, and a 1670 takkanah even

restricted the right to request a rabbinic trial.31 According to a later undated

takkanah, lay judges (who were members of the Mahamad) were directly responsible

for overseeing commercial litigation which was to be governed by ‘commercial

custom or the regulation of the marketplace, to which we assent and approve as if

they were expressly decided in din torah’. The takkanah attempted comprehensively

to list halakhic matters within the competency of rabbis in a din torah and those lay

judges were authorised to hear. Interestingly, the two lists broadly followed the

28 See Chapter IV, section 3. On consent to compulsory arbitration among membership bodies: see

Derek Roebuck, Francis Calvert Boorman, and Rhiannon Markless, English Arbitration and

Mediation in the Long Eighteenth Century (Oxford: Holo Books The Arbitration Press, 2019), 26. 29 Ruderman, Early Modern Jewry, 58. 30 Carlebach, "Early Modern", 174. 31 Bernard D. Cooperman, "Trade and Settlement: The Establishment and Early Development of the

Jewish Communities in Leghorn and Pisa (1591-1626)" (Harvard, 1976), 353-357. For Rabbi Jacob

Sasportas’s criticism of the 1670 Livorno takkanah, see Michael Walzer, Menachem Lorberbaum,

and Noam J. Zohar, eds., The Jewish Political Tradition: Vol. 1: Authority (New Haven: Yale

University Press, 2000), 424-429. This post-dates his short period as the London community’s

Ḥakham from 1664 to 1665.

34

mamona and issura categories which delineated respectively civil or fiscal matters

that could be heard by laymen, and religious matters which remained the sole

province of mumḥim.32 Although devolving judicial responsibility in this way was

highly unusual, the practical outcome of the Livorno community’s judicial model,

both in terms of the split between mamon and issur disputes and of the application of

mercantile law to the former, became part and parcel of the transnational legal

culture on which the London community built its judicial system. As we shall see, its

lay Tribunal’s principal responsibility also mainly concerned monetary matters,

leaving issur matters to the community’s rabbinical personnel.

1.2 Arbitration and compromise in Jewish justice systems

So far, we have seen that the halakhic system permitted both lay and rabbinical

courts. There was yet another layer of complexity to this arrangement superimposed

externally by host legal systems which drew their legal traditions from the Roman

Empire. This complexity arose from the withdrawal of Jewish judicial autonomy

from Jews living in the Christianised Roman Empire when in 398 C.E the

Theodosian Code restricted Jewish jurisdiction to religious matters only.33

Thereafter, Rome’s judicial control over Jewish disputes fell into three categories.34

As had been the case before 398 C.E., Rome retained exclusive jurisdiction over

criminal matters. Like other Roman citizens in Rome and in its Empire, after 398

C.E. Jews were required to use Roman courts and law ‘on all matters pertaining to

“courts, laws and rights.”’35 A separate Jewish jurisdiction was only recognised over

cases concerning ‘their superstition’, that is, in relation to religious matters which

were to be judged by their own courts.36 However, as citizens of the Roman Empire,

32 Quotation in Authority, 424-427: 426; Elon, Jewish Law, 29 n. 93. On the Livorno takkanah’s

significance to early modern conflicts between rabbinic and lay authorities, see Ruderman, Early

Modern Jewry, 65-74. In early eighteenth century, Metz, France, a lay court served alongside the

community’s established rabbinical court whose head of the court, R. Jacob Reischer, recognised lay

jurisdiction in personal property and damages cases, as well as public policy issues. See Berkovitz,

Protocols, 51-53. 33 Christine Hayes, "Law in Classical Rabbinic Judaism", in The Cambridge Companion to Judaism and Law, ed. Christine Hayes (Cambridge: Cambridge University Press, 2017), 76-127: 78. 34 Rabello, "Jewish and Roman Jurisdiction", 153-154.; Amnon Linder, "The Legal Status of the Jews

in the Roman Empire ", in The Cambridge History of Judaism: Vol. 4: The Late Roman-Rabbinic

Period, ed. Steven T. Katz (Cambridge: Cambridge University Press, 2006), 128-173: 158. 35 "Legal Status", 158. 36 Emperor Justinian I (527-65)’s Corpus Iuris Civilis provided that even religious disputes had to be

submitted to Roman courts, but Jews still retained the right by mutual agreement to submit them to

35

Jews were permitted to submit their civil disputes voluntarily to arbitrators, as an

alternative to litigating before Roman courts. From the Roman Empire’s

perspective, Jewish courts were permitted to decide civil cases only when the parties

to a civil dispute mutually agreed to treat them as arbitration panels, thus effectively

transforming Jewish courts hearing civil cases into courts of arbitration only.37 The

advantage of agreeing to arbitrate in this way was that Roman courts were willing to

enforce arbitration decisions as if they had been made by Roman appointed judges.38

These principles downgraded the status of Jewish courts while at the same time

integrating Jewish arbitration into wider legal culture. But from an internal Jewish

perspective, the halakhic framework continued to claim exclusive jurisdiction over

arbitrations between Jews, just as it had done in relation to fully functioning courts

of expert judges. This was not without its problems because arbitration was, after

all, a consensual process which had at its core the right of the parties freely to

contract with one another about how they wished to resolve their dispute. The

appointment of non-Jewish arbitrators by agreement between the parties was

therefore a possibility. Although halakhah recognised a wide latitude for contractual

parties to agree their own terms on civil matters, it was subject to the overriding

principle that contractual parties could not make contracts which had the effect of

derogating from issur matters. Since halakhah designated resorting to non-Jewish

judges as issur, parties to arbitrations were not free to agree to appoint non-Jewish

arbitrators even in the case of civil disputes.39 This important limitation on the

freedom of contract was codified in the Shulḥan ῾Arukh’s restatement that ‘even if

the two litigants agreed to be tried before them [that is non-Jewish judges], it is

forbidden.’40

To accord Jewish arbitration a status akin to Jewish courts, which were always

manned by three or more judges, halakhah articulated a preference for three

arbitrators.41 Being a consensual process, arbitration readily adopted an already-

Jewish courts of arbitration. See Alfredo Mordechai Rabello, "Appendix - Justinian and the Revision

of Jewish Legal Status", ibid., 1073-1076: 1074. 37 Linder, "Legal Status", 158. 38 Alfredo Mordechai Rabello, "Civil Jewish Jurisdiction in the Days of Emperor Justinian (527-565):

Codex Justinianus 1.9.8", Isr. L. Rev. 33 (1999), 51-66: 52. 39 Elon, Jewish Law, 15; 123-127. 40 Shulḥan ῾Arukh - Ḥoshen Mishpat, 26:1. ‘Judges’ in this context makes no distinction between non-

Jewish judges or arbitrators. 41 bSanhedrin 6b-7a in Walzer, Lorberbaum, and Zohar, Community, 561-563.

36

existing halakhic procedure known by its acronym zabla (zeh borer lo eḥad) by

which each litigant selected his preferred judge and either the parties or the two

selected judges appointed the third judge.42 The method applied irrespective of

whether selected personnel were expert judges or laymen.43 Formal procedures were

required to submit a case to an arbitration panel, including signing a deed of

arbitration.44 The right to select a panel of judges or arbitrators gave litigants a

degree of flexibility and enabled ad hoc tribunals to function either alongside, or as

an alternative to, permanent standing courts. Indeed, it was only in the early modern

period’s turn towards the institutionalisation of judicial and administrative processes

within Jewish communities that permanent standing courts became more common.45

With the rise in arbitration as a form of dispute resolution, Jewish adjudication took

several diverse forms. Courts of arbitration of either lay or expert judges heard

monetary matters (mamon), while non-monetary matters (issur) were adjudicated by

a bet din. Alongside both these forms of adjudication lay tribunals, run by the

wealthy parnassim of communities, ostensibly had jurisdiction over civil matters

only. The reality of the split between judicial responsibilities was, however, more

complex. In London, the Tribunal had an extraordinarily wide jurisdiction over all

manner of disputes and acted as the conduit to other dispute resolution forums. With

the litigant’s agreement, civil disputes which had not settled at the Tribunal were

sometimes directed to ad hoc arbitration panels, while conflicts having a religious

component (such as the validity of a marriage or halakhic grounds for divorce) were

remitted to a bet din for their halakhic ruling.

In arriving at halakhic rulings, halakhic principles distinguished between deciding

civil cases according to din (strict formal law or justice) or according to pesharah

(compromise). While pesharah was the goal of lay tribunals, it was not necessarily

always the case that halakhically expert judges serving on batei din or courts of

42 Elon, Jewish Law, 19. See Shulḥan ῾Arukh - Ḥoshen Mishpat, 3:1. For the practice in early modern

Venice, see David Malkiel, "The Ghetto Republic", in The Jews of Early Modern Venice, ed. Robert

C. Davis and Benjamin Ravid (Baltimore: The John Hopkins University Press, 2002), 117-142: 140. 43 Shulḥan ῾Arukh - Ḥoshen Mishpat, 13:1. 44 Menachem Elon, "Arbitration", in Encyclopaedia Judaica, vol. 2, eds. Fred Skolnik and Michael

Berenbaum (Detroit: Macmillan Referencing USA in association with the Keter Publishing House,

2007; Second ed.), 364-368: 365-366. For modern practice, see, for example, the Beth Din of

America’s proforma arbitration agreement at https://bethdin.orgwp-

content/uploads/2020/10/Standard-Arbitration-Agreement.pdf. (Accessed 02/03/2021) 45 Berkovitz, Law's Dominion, 157; Carlebach, "Early Modern", 193.

37

arbitration decided cases according to din. Since litigants had the freedom to choose

whether rulings should be based on din or pesharah, it became accepted practice for

dayyanim to ask the parties to make their choice at the start of judicial proceedings.46

By choosing pesharah, the parties agreed to the court imposing whatever settlement

terms it considered fair and reasonable assessed according to halakhic principles

about moral wrongdoing or by following a minority halakhic opinion. The halakhic

term for such rulings, pesharah k’rovah la-din, featured in the Ascamot of several

Western-Iberian Sephardi communities.47 It was an idea that echoed English law’s

notion of ‘equity and good conscience’ which permitted certain English courts (such

as the Court of Chancery and the courts of request, where so many Sephardim

litigated small debt disputes) to decide cases other than strictly in accordance with

common law principles.48

Pesharah also had a broader meaning of bringing peace between litigants in the

interests of civil society which permitted adjudicatory authorities to put settlement of

a dispute above relying on halakhic principles. While in this sense pesharah seems

closer to modern ideas of mediation facilitated by the adjudicatory forum, in the

halakhic system it still connoted court-imposed settlement. By the eighteenth

century, when the Sephardi community’s justice system began to be documented in

the Livros, it had become normative (as previously mentioned) for batei din to seek

litigants’ consent to rule on their dispute according to principles of pesharah rather

46 bSanhedrin 6b; Shulḥan ῾Arukh - Ḥoshen Mishpat 12:2. Talmudic sources use the terms pesharah and bitzu῾a in relation to compromise, the difference being that pesharah was a court-imposed

compromise whereas bitzu῾a was closer to mediation where the parties themselves reached

agreement: see Menachem Elon, "Compromise", in Encyclopaedia Judaica, vol. 5, eds. Fred Skolnik

and Michael Berenbaum (Detroit: Macmillan Referencing USA in association with the Keter

Publishing House, 2007), 124-125: 124. 47 For Amsterdam, see Yosef Kaplan, "Eighteenth Century Rulings by the Rabbinical Court of

Amsterdam's Community and Their Socio-Historical Significance", in Studies in the History of Dutch

Jewry, ed. J. Michman (Jerusalem, 1988), 1-54: 3; "Discipline, Dissent", 389; Oliel-Grausz, "Dispute

Resolution", 232-233. On the difference between din, pesharah, and pesharah k’rovah la-din, see

Michael J. Broyde, Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration

in America and the West (New York: Oxford University Press, 2017), 161-162. 48 F. W. Maitland, A. H. Chaytor, and W. J. Whittaker, Equity Also the Forms of Action at Common Law: Two Courses of Lectures (Cambridge: Cambridge University Press, 1909), 1-22; John H. Baker,

An Introduction to English Legal History, 5th ed. (Oxford: Oxford University Press, 2019), 105-125.

Until the Judicature Acts 1873-75 established a single High Court divided into five divisions,

equitable jurisdiction was exercisable only in the Court of Chancery. Baker quotes at p.123,

Maitland’s insight that equity was always a ‘gloss on the [common] law.’ Equitable principles

enabled the Court of Chancery (and inferior courts of request) to consider all the surrounding

circumstances of a case which common law procedure may have excluded from the court’s remit.

38

than din.49 Despite its normativity, pesharah did not always encompass how the

London community practised the settlement of disputes. As we shall see in Chapter

IV, the Tribunal frequently acted as mediators between the parties to facilitate a

solution arrived at by the parties themselves. It was only when they imposed a

settlement on the parties that they acted in accordance with pesharah.

The problem for the Tribunal and the Sephardi justice system generally was that

sometimes it was impossible to resolve a case either by mediation, pesharah, or by

din. The Livros and reported legal cases reveal that Sephardim were willing to

litigate in English courts, which calls into question individual commitment to the

prohibition against using non-Jewish courts and to the ability of the community to

assert judicial authority. In the next section, I discuss the halakhic principles that

facilitated pluralistic accommodation to the reality of Jewish courts existing

alongside other legal systems.

1.3 Two concepts controlling Jewish jurisdictional boundaries

Unlike the legal systems of the Christian countries in which Sephardi Jews lived, the

halakhic system did not divide law into separate spiritual and temporal realms. In

conceptual terms all law was divine in origin, which meant that Jewish judges had

jurisdiction over purely religious matters (such as prayer and ritual) and everyday

civil disputes (such as rules about acquiring property, apportioning responsibility for

damage).50 When the Theodosian Code of 398 C.E. restricted Jewish jurisdiction to

religious matters only, it posed a fundamental challenge to this conception.51

Two strategies dominated early rabbinical responses to this challenge. According to

Elon, the broad distinction between issur and mamon gave the ‘“legal” part of the

Halakhah – the part particularly sensitive to the effects of constant changes in

economic and social life – its great flexibility and extraordinary potential for

49 This explanation relies on the summary of halakhic principles on pesharah and din, including

references to talmudic and later authorities at https://bethdin.org/pesharah-vs-din/ (Accessed

02/03/2021). See also Elon, "Compromise". For a detailed discussion of the early talmudic and later

rabbinic sources on law, justice and equity, see Jewish Law, 167-189; 247-261. 50 Jewish Law, 111-122. 51 Hayes, "Law in Classical Rabbinic Judaism", 78.

39

development.’52 The rabbis developed rules which distinguished which aspects of

biblical norms could be varied (classifying them as mamona) and which of those

aspects were unalterable (issura). To take the laws of marriage as an example, a

Jewish court would uphold a contract stipulating that a husband agreed to vary his

economic responsibilities to maintain his wife during the marriage, but would

declare void a contract stipulating that he would not enter into a levirate marriage.53

By the early modern period, it was settled law that people were free to contract out

of monetary matters subject to complying with certain formalities.54 The same logic

applied to takkanot promulgated by communal authorities who only had freedom to

contract out of Torah law concerning civil matters.55 As we shall see in Chapters IV

and V, while the Sephardi justice system did not refer explicitly to these principles, it

gave more latitude to flexible approaches to civil rather than religious matters.

A second halakhic concept – dina de-malkhuta-dina (‘the law of the land is the law’)

– used the mamon versus issur categorisation as a bulwark against the encroachment

of foreign law.56 This concept has been described by Suzanne Last Stone as

‘talmudic political legislation for a community in exile [and] a means of substituting

non-Jewish political institutions for Jewish institutions no longer capable of

governing’.57 Traditionally attributed to the third-century Babylonian amora Samuel

(c180-257 C.E.), it features in the Babylonian Talmud in relation to the power of a

king to enforce an aspect of his law: the collection of taxes by a lawfully appointed

tax collector acting within his authority;58 the cutting down of palm trees to build

bridges without consent of the landowner;59 the acquisition of land by a written deed

52 Elon, Jewish Law, 137, 141. Elon uses ‘legal’ to refer to the ‘corpus juris of contemporary legal

systems’ in contradistinction with purely ‘religious’ matters. He acknowledges, however, that

equating mamon with the concept of ‘law’ in a secular sense is imprecise because many areas of

secular ‘law’ such as family and criminal law are issur. 53 Ibid., 125 n. 133. 54 Ibid., 126 n. 143. 55 Ibid., 130, 707-712. 56 Walzer, Lorberbaum, and Zohar, Authority, 434. 57 Stone, "Sinaitic and Noahide Law", 1212. On the doctrine’s underlying rationale and strategies to

control its ambit, see Elon, Jewish Law, 64-74; Walzer, Lorberbaum, and Zohar, Authority, 430-462.

General studies of the doctrine in English include Gil Graff, Separation of Church and State: Dina De-Malkhuta Dina in Jewish Law, 1750-1848 (Alabama: University of Alabama Press, 1985); Leo

Landman, Jewish Law in the Diaspora: Confrontation and Accommodation: A Study of the

Development, Composition and Function of the Concept of Dina D'malkhuta Dina--the Law of the

Kingdom (the State) Is the Law (Philadelphia: Dropsie College for Hebrew and Cognate Learning,

1968). 58 bBava Kamma 113a; bNedarim 28a. 59 bBava Kamma 113b.

40

of sale rather than possession;60 and the sale or confiscation of land to meet land

taxes.61 The doctrine was also used to recognise as valid documents (apart from bills

of divorce or manumission) executed under the authority of a non-Jewish court.62

Thus, the doctrine was confined to fiscal matters, confiscation of property and

execution of documents in non-Jewish courts.

Control of this potentially dangerously malleable doctrine, even in these contexts,

centred upon the mamon versus issur categories. In cases concerning mamon,

Jewish judges were permitted to follow the law of the land, but conversely were

forbidden from applying foreign law to any matter of issur. In a case involving both

mamon and issur, judges were entitled first to consider the mamon aspects and apply

foreign law to resolve it, and then return to the matter of issur and resolve it

according to halakhic principles.63 Foreign laws which infringed on halakhic notions

of justice (such as discriminatory laws or enforcement against the entire community

for the misdeeds of a few) were considered non-binding.64

The doctrine’s capacity to respond to and accommodate influences from other legal

systems gave it an inherently pluralistic aspect. So long as these legal systems

accommodated legal pluralism and Jewish communities maintained widespread

adherence to the prohibition against using non-Jewish courts, the doctrine might

remain narrowly drawn. However, by the late seventeenth century powerful

Sephardi communities like Livorno’s Sephardim, who had a wide latitude over

judicial matters, had incorporated mercantile law into their takkanot and had

accepted its primacy over halakhah in relation to civil matters.65 In eighteenth-

60 bBava Batra 54b. 61 bBava Batra 55a. 62 bGittin 10b. Slightly different sources are listed in Elon, Jewish Law, 65 n.45; Graff, Separation, 8.

On the difference between bills of divorce and manumission and other legal documents, see

Simonsohn, A Common Justice, 58-60. He distinguishes between evidentiary documents needed to

prove a pre-existing legal right and constitutive documents which themselves created a new legal

situation. Evidentiary documents could validly be executed in a non-Jewish court, but constitutive

documents required execution before a Jewish court. See too Saul J. Berman, Boundaries of Loyalty:

Testimony against Fellow-Jews in Non-Jewish Courts (New York: Cambridge University Press,

2016), 3-13; Elon, Jewish Law, 68 n. 62. cf. Gideon Libson, "Halakhah and Law in the Period of the Geonim", in An Introduction to the History and Sources of Jewish Law, ed. N. S. Hecht, et al.

(Clarendon Press, Oxford, 1996), 225-226. 63 Elon, Jewish Law, 132-137; Graff, Separation, 12. 64 Elon, Jewish Law, 72. Suzanne Last Stone associates this rule with the Noahide law to establish a

justice system. The doctrine of dina de-malkhuta dina only recognises the legitimacy of such laws if

they are not arbitrary or discriminatory. See Stone, "Sinaitic and Noahide Law", 1188 n. 122. 65 Ruderman, Early Modern Jewry, 66.

41

century Metz, the increasingly legally centralist tendencies of the French state

created more opportunities for its civil law to encroach into everyday Jewish life

though it still recognised Jewish jurisdictional authority.66 English Sephardim faced

a very different situation. They had to establish a justice system resilient to outside

legal influences without the state explicitly recognizing and protecting Jewish

judicial authority. The absolute freedom available to the Jews to access English

courts disrupted the delicate balance between the twin principles of ῾arka’ot shel

goyim and dina de-malkhuta dina. It became even more important for Jewish

jurisdictional boundaries to be preserved through internal forces, such as social

discipline imposed by the community’s Ascamot, and by the commitment of

individual congregants to maintaining a vibrant Jewish justice system.

As we shall see in Chapters IV and V, resting the vibrancy and viability of Jewish

justice – particularly civil justice – on individual commitment was fraught with

difficulty. Moreover, the Mahamad’s desire to live quietly and peaceably according

to the James II’s 1685 Declaration of Indulgence fostered accommodation to English

legal hegemony even in halakhic areas designated issur, such as inheritance,

criminal, and family law. Although the community found ways to balance

maintaining Sephardi cultural norms governing the disposition of property with

ensuring their wills and marriage settlements complied with English law, they were

punctilious in obeying court orders regarding inheritance matters.67 The Mahamad

conceded that inheritance was a matter for the ecclesiastical courts, readily co-

operating with them where necessary, even in intestacies, where their assistance was

required to list inventories of personal property of the deceased.68 During the height

of public clamour against Jewish criminality in the 1770s, the Mahamad even

offered a reward of thirty guineas for anyone able to ‘seize, secure and bring to

justice any Individual belonging’ to the community in order that they may be

66 Berkovitz, Protocols, 106-107. Berkovitz’s analysis of the Metz bet din’s pinkasim from the 1770s

to 1789 indicates a convergence between legal centralism and legal pluralism, when significant

encroachments from French state bureaucracy centralized state control over law and legal procedure.

Berkovitz remarks in his introduction (p.18) that the Metz bet din ‘proved itself responsive to practical demands and to shifting cultural affinities by adapting to a world of multiple jurisdictions of

comparable validity’ and he tellingly adds (p.19) that ‘[b]y the 1770s it was clear that the myth of a

Jewish judicial system that existed entirely outside the state’s civil system could no longer by

sustained.’ 67 On wills, see A. S. Diamond, "Problems of the London Sephardi Community, 1720-1733—Philip

Carteret Webb's Notebooks", Transactions (Jewish Historical Society of England) 21 (1962), 39-63. 68 LMA/4521/A/01/03/001, Minutes of the Mahamad, 123b-124, the intestacy of Sara Estevens.

42

‘convicted capitally in any Court of Assize in Great Britain.’69 English ecclesiastical

courts claimed sole and exclusive jurisdiction over matrimonial disputes, including

issues such as the validity of marriage and divorce.70 Eighteenth century cases heard

in the ecclesiastical courts demonstrate the difficulties the Sephardi judicial system

had in retaining for itself exclusive jurisdiction over family matters in accordance

with traditional halakhic principles.71

These difficulties continue even today. In 2008, Dayan Yisroel Lichtenstein, a judge

of the Federation Beth Din, wrote in The Jewish Chronicle that ‘the beth din’s role in

resolution of family issues is severely restricted…The beth din’s authority to deal

with assets in divorce proceedings is doubtful and it has no say over custody of

children . . . a get could not be effective as a civil divorce, thus debarring the beth din

of any meaningful part in all ancillary matters of a Jewish divorce.’72

1.4 The recalcitrant defendant

The problem of freedom of access to non-Jewish courts and the willingness of Jews

to sue one another in breach of ῾arka’ot shel goyim was not something new. A

Jewish response to this problem can be traced to the geonic period in Babylonia

when, as ‘protected people’, the Jews had access to Muslim courts to litigate civil

matters and enforce the judgments of Jewish courts.73 The ninth-century Gaon,

Paltoi of Pumbedita, found a flexible approach to ‘combat or limit’ the advantages of

the Muslim courts.74 He ruled that ‘“ if Reuben has a claim against Simeon, who

refuses to appear in court, he [Reuven], in order to obtain what is his, may bring

[Simeon] before the non-Jewish courts.”’75 Although it had detractors who sought to

69 Public Advertiser, 4 December 1775, p. 1; Public Advertiser, 7 December 1775, p. 1; Morning

Chronicle and London Advertiser, 6 December 1775, p. 1. For the original resolution of the Mahamad

to place the advertisements dated 1 December 1775, see LMA/4521/A/01/03/002, Minutes of the

Mahamad fols. 335-336. Mentioned in Albert Montefiore Hyamson, The Sephardim of England: A

History of the Spanish and Portuguese Jewish Community, 1492-1951 (London: Methuen, 1951),

193. On Jewish criminality, see Endelman, Jews of Georgian England, 194-226. 70 See Chapter V, section 1. 71 See Chapter V, sections 2.2; 3.2. 72 Yisroel Lichtenstein, "Sharia Can Help Our Courts", The Jewish Chronicle, 15 February 2008, 4. The jurisdiction of the English court over family matters cannot be ousted, though religious tribunals

may assist in resolving issues. See Mark Hill, "Religion and the State: Recognition, Regulation and

Facilitation", in Religion and Legal Pluralism, ed. Russell Sandberg (London: Routledge, 2017), 33-

34. 73 Ruderman, Early Modern Jewry, 81-85; Simonsohn, A Common Justice, 190. 74 Libson, "Halakhah", 197-250: 225. 75 Elon, Jewish Law, 15 n. 43 citing Otzar Ha-Geonim, Bava Kamma, Responsa, 69.

43

limit the scope of the rule to enforcement of judgments only, it was later codified in

the Shulḥan ῾Arukh without this restriction, but with the procedural caveat that,

before approaching a non-Jewish court, the aggrieved litigant was required first to

summon the recalcitrant defendant to a Jewish court, which then provided a heter

(permission) to sue before the non-Jewish court.76

As we will see in Chapters IV and V, the Tribunal adopted this example of halakhic

flexibility to the historical legal environment when it extensively deployed the heter

system to create a point of communication and control between it, Jewish litigants,

and the non-Jewish courts. The problem the Tribunal encountered was that, in the

absence of state power, it was often effectively powerless to discipline members who

flouted the procedural safeguards in place to preserve Jewish jurisdiction. That lack

of state power standing behind the judicial decisions of either rabbinical or lay courts

made it almost impossible for the Mahamad to prevent the determined litigant from

accessing the non-Jewish courts. Effective communal enforcement power is the final

halakhic issue that needs to be considered here.

1.5 Powers of enforcement

Jewish courts could only deliver practical justice if they could secure an appropriate

remedy for the litigant. But all communities faced the problem that the combination

of a lack of enforcement power and halakhic principles against coercion weakened

the judicial ability to deliver enforceable rulings. One solution to this problem,

dating to the geonic period, was to strengthen social control through an increased and

more stringent use of the ḥerem (ban resulting in total ostracism) and niddui (semi-

ostracism) to secure attendance at court, compliance with judicial rulings and

communal takkanot.77

Across Sephardi and Ashkenazi medieval communities, the ḥerem was used to

secure compliance with the rule of ῾arka’ot shel goyim, isolating miscreants from the

76 Shulḥan ῾Arukh, Ḥoshen Mishpat, 26:2. On medieval objections to the ruling applying other than to enforce Jewish court judgments, see Nahmanides (1194-1270) mentioned in Elon, Jewish Law, 16

n. 44 citing Resp. Nahmanides #63. For scholarly disagreement on the scope of Paltoi’s original

ruling, see Simonsohn, A Common Justice, 190-192, arguing that the ruling was restricted to

enforcement of judgments; cf. Libson, "Halakhah", 225, that it had wider application reflecting the

flexibility of the geonim to their legal environment. In the early modern period, see Berkovitz, Law's

Dominion, 127-131. 77 Libson, "Halakhah", 226-227.

44

social, economic, and most importantly, the religious life of their communities.78

However, in England there was a complete absence of state authority to assist the

London community to enforce its judicial rulings or excommunication decrees. The

Mahamad even doubted whether excommunication was legal at all and in 1707 took

legal advice from Edward Northey, the Attorney-General at that time. Although

Northey’s opinion is difficult in some respects to interpret, he advised that, since

excommunication was a power exercisable by the Christian ecclesiastical courts, he

was ‘doubtful’ whether it was exercisable by the ‘synagogue of the Jewry’.

However, disciplinary measures short of spiritual excommunication were permitted,

such as monetary fines, refusal of seating rights in synagogue, and burial rights in

the community’s cemetery.79 Although the ḥerem was part of the Mahamad’s

disciplinary armoury in seventeenth-century London, by the end of the eighteenth

century it played little practical role in community discipline.80

This absence of state enforcement power appears to set the London community apart

from many other Jewish communities which were free to exercise whatever judicial

privileges had been granted to them. Yet, as Jacob Katz has observed, the

enforcement power of the corporatist Jewish community was a mirage because it was

dependent on outside state authority if challenged. He argues that to conceal this

reality, Jewish communities appealed to ‘internal values’ as the true reason for

78 For takkanot of the medieval Ashkenazi communities of France and Germany see Louis

Finkelstein, Jewish Self-Government in the Middle Ages (New York: Jewish Theological Seminary of America, 1924). On excommunication in Ashkenazi communities, see Katz, Tradition, 84-86. For the

social function of excommunication in Amsterdam’s Portuguese Jewish community in seventeenth

and eighteenth century Amsterdam, see Kaplan, An Alternative Path, 108-153. In seventeenth-century

London, ibid., 155-167. On medieval Spanish Jewry’s extensive coercive powers, including the right

to mete out capital punishment, see Eliav Shochetman, "Jewish Law in Spain before 1300", in An

Introduction to the History and Sources of Jewish Law, ed. N. S. Hecht, et al. (Clarendon Press,

Oxford, 1996), 271-298. 79 Alex Kerner, "Setting the Boundaries of Punitive Jurisdiction – a New Reading of a Query by the

Mahamad of the Sephardic Congregation of London to the Attorney General and Its Political

Implications (1707)", Jewish Culture and History 18 (2017), 235-254. Northey’s short opinion is

reproduced in Appendix A (253) and Hyamson, Sephardim, 92. Mentioned in Moses Gaster, History

of the Ancient Synagogue of the Spanish and Portuguese Jews, the Cathedral Synagogue of the Jews in England, Situate in Bevis Marks. A Memorial Volume [...] 1701-1901. [..] (London, 1901), 127.

See also Isidore Epstein, "The Story of Ascama 1 of the Spanish and Portuguese Jewish Congregation

of London with Special Reference to Responsa Material", in Studies and Essays in Honour of

Abraham A. Neuman, ed. Meir Ben-Horin, Bernard Dov Weinryb, and Solomon Zeitlin (Leiden: Brill

for the Dropsie College, Philadelphia, 1962), 170-214. 80 Kerner, "Setting the Boundaries"; Kaplan, An Alternative Path, 155-167 on the herem in

seventeenth-century London.

45

submitting to their judicial authority.81 To litigate in a non-Jewish court was not just

a breach of legal procedure; it was blasphemous too. Despite the fact that the

talmudic sources omitted any express religious justification for prohibiting litigating

in non-Jewish courts, Joseph Karo’s Shulḥan ῾Arukh codified as normative that

anyone litigating in those courts was a ‘wicked person and is [treated] as though he

blasphemed, reproached and rebelled against the Law of Moses.’82 This statement

reflected Maimonides’ formulation of the prohibition against litigating in non-Jewish

courts in his Mishneh Torah that ‘anyone who litigates before non-Jewish judges or

in their courts, even though their law is the same as Jewish law, is an evildoer, as if

he has reviled, blasphemed, and raised his hand against the Torah of Moses, our

teacher… ‘.83 Echoing these appeals to internal religious values, the London

Ascamot of the late seventeenth and early eighteenth century stated that litigating in

non-Jewish courts was a profanation of God’s name. By the late eighteenth century,

however, the London Ascamot defended the prohibition only on the basis that such

litigation rendered the community ‘odious’ in wider society, a form of wording that

can be characterised as externally motivated compared to the more inward, religious

sentiment of the early years of the community. By the mid-nineteenth century, even

the watered-down motivation of odiousness had disappeared from the Ascamot.84

To digress for a moment, the reference in the early eighteenth-century Ascamot to

the profanation of God’s name provides us with a glimpse of the rabbinical works

from which the early London community drew their halakhic guidance, which is

corroborated by an unusual later source. During the late eighteenth century, the

English ecclesiastical court heard the case of Lindo v Belisario, in which it had to

consider the halakhic rules about the validity of a Jewish marriage.85 The court

81 Katz, Tradition, 77; Malkiel, A Separate Republic, 1. Malkiel refers to the Venetian state as the

‘source of coercive power’ and as the Jewish ‘community’s ally, its “big brother.”’ 82 Shulḥan ῾Arukh, Ḥoshen Mishpat 26:1. On its inception and reception history, see Isadore Twersky,

"The Shulhan 'Aruk: Enduring Code of Jewish Law", Judaism 16 (1967), 141-158; Joseph Davis,

"The Reception of the "Shulḥan 'Arukh" and the Formation of Ashkenazic Jewish Identity", AJS

Review 26 (2002), 251-276; Jay R. Berkovitz, "Rabbinic Culture and the Historical Development of

Halakhah", in The Cambridge History of Judaism: Vol. 7: The Early Modern Word, 1500-1815, ed.

Jonathan Karp and Adam Sutcliffe (Cambridge: Cambridge University Press, 2018), 349-377: 359-362. 83 Mishneh Torah, Laws of Sanhedrin, 26:27 (translation Elon, Jewish Law, 14-15.). See Katz,

Tradition, 83 n. 34. On Maimonides’s attitude to Jews suing in Islamic courts, see Mark R. Cohen,

Maimonides and the Merchants: Jewish Law and Society in the Medieval Islamic World

(Philadelphia: University of Pennsylvania Press, 2017), 135-138. 84 See Chapter IV, section 3.3. 85 Lindo v Belisario (1795) (Consistory Court of London) 1 Hag. Con. 215, 161 Eng. Rep. 530: 538.

46

enquired of the Portuguese Bet Din: ‘Who are the Rabbis whose opinions are mostly

followed by the Jews of the Portuguese community?’, to which the response was

‘Maimonides and Beth Joseph’.86 The response, together with the Portuguese Bet

Din’s opinion evidence, confirms that Maimonides’ Mishneh Torah and Karo’s Bet

Yosef were fundamental in the judicial life of the community. Karo’s Bet Yosef was

his comprehensive and voluminous commentary on the medieval code of R. Jacob

ben Asher (1269-1343), the Arba’ah Turim. Realising that the Bet Yosef had become

too cumbersome as a halakhic reference tool, Karo later used it to write his more

concise halakhic code, Shulḥan ῾Arukh.87 It seems therefore that the London

community’s rabbinical authorities used Karo’s Bet Yosef for definitive halakhic

guidance in complex cases, but we cannot rule out that the Shulḥan ῾Arukh was

consulted concerning more mundane and uncontroversial matters on which rabbis

were called to advise on a regular basis.

Besides the problems associated with justifying the prohibition itself in religious

terms, the community also had to confront some very real and practical conflicts

between halakhic principles on enforcement and English law. It was a fundamental

halakhic rule that Jews were prohibited from enforcing debts against the body of the

debtor, either by imprisonment or fines.88 English law, however, treated enforcement

against the body of the debtor as the creditor’s essential legal right. Jewish creditors

who were willing to collect debts in the English courts had access (in theory) to a

formidable legal weapon unavailable before a Jewish court. In practice, as I argue in

Chapter IV, imprisonment was a weapon of last resort, but it is important to

acknowledge the deficiencies inherent in the halakhic system itself which put Jewish

justice at a distinct disadvantage irrespective of other historical exigencies that

affected individual jurisdictional choices.

Remedy was an even more problematic issue when creditors were faced with

impecunious debtors. Halakhah had long recognised a creditor’s right of lien over a

debtor’s real property, but it was punctilious about protecting the debtor from

arbitrary seizure of personal property. Rules prevented creditors from entering the

debtor’s home and seizing any property necessary for daily living. Many of the

86 Ibid., 538. 87 Twersky, "The Shulhan 'Aruk". 88 Elon, Jewish Law, 652 n. 35.

47

debtors brought before the Tribunal were some of the most marginalised members of

the community who were unlikely to have any property worth enforcing against. In

these circumstances, the only available halakhic option for the creditor was to rely on

the debtor swearing a religious oath that he or she was not concealing any assets that

might satisfy a judgment.89 This remedy may have satisfied some creditors, but one

can easily see that where the ‘interpretative commitments’ (to borrow Cover's

phrase) to a halakhic framework for debt collection were weak, creditors may have

preferred English rather than Jewish justice. Indeed, as the Livros show, some

creditors did use the English court’s powers of imprisonment to coerce their debtors

into repayment. Moreover, the Tribunal frequently gave creditors permission to sue

debtors in civil courts knowing that imprisonment might be the ultimate result.

However, when creditors sued without first obtaining prior permission to litigate in

non-Jewish courts, the Tribunal was more likely to censure (sometimes through

fines) the creditor and require him or her to take steps to secure the debtor’s

release.90 The toleration of imprisonment for debt fits with a general phenomenon

among Western Sephardi communities to co-opt civil authorities to enforce their

disciplinary measures even if that meant imprisonment, but in London, unlike

Amsterdam, the connection between decision-making in the Jewish judicial space

and civil enforcement action was only ever indirect.91

This survey of the halakhic rules relating to the prohibition against using non-Jewish

courts reveals remarkable flexibility within the halakhic legal system to respond to

the challenges Jewish judicial authorities faced across time and place. Lay justice

and arbitration courts supported the core value of judicial decision-making by Jewish

judges. In theory, if not always in practice, the distinction between mamon and issur

and the doctrine of dina de-malkhuta dina, provided a framework within which to

89 On debt recovery, imprisonment, oaths of impecunious debtors, and communal takkanot from the

fourteenth century onwards ameliorating halakhah’s strict position, see, ibid., 76, 651-654, 707-713;

Menachem Elon, "Imprisonment for Debt", in Encyclopaedia Judaica, vol. 9, eds. Fred Skolnik and

Michael Berenbaum (Detroit: Macmillan Referencing USA in association with the Keter Publishing

House, 2007), 747-752; "Execution", in Encyclopaedia Judaica, vol. 5, eds. Fred Skolnik and Michael Berenbaum (Detroit: Macmillan Referencing USA in association with the Keter Publishing

House, 2007), 590-598. On communal strategies to compel payment of debts owed to the community

and individuals in early modern Germany, and on bankruptcies, see Debra Kaplan, The Patrons and

the Poor: Jewish Community and Public Charity in Early Modern Germany (Philadelphia: University

of Pennsylvania Press, 2020), 60-66. 90 See Chapter IV, section 3.1. 91 Kaplan, "Discipline, Dissent", 390.

48

hold back the gradual encroachment of legal centralism of absolutist states, as they

expanded their reach into areas of civil and religious law. The very practical

response to recalcitrant defendants’ attempts to thwart justice – the permission tool –

facilitated control over the access point between Jewish judges, litigants, and non-

Jewish courts.

The London community of early modern England faced a unique set of

circumstances when it went about establishing its Jewish justice system. Open access

to English justice and the absence of state recognition of judicial autonomy in any

sphere of law meant that the community had to use all the halakhic tools at its

disposal to ensure that Jewish judges adjudicated disputes between Jews. The

community benefited, however, from the fact that it was not setting up a justice

system in a cultural vacuum. When the Portuguese Jews settled in London, they

brought with them a highly developed transnational legal culture ready for

adaptation to English legal culture. It is to that transnational cultural influence that I

turn next.

2 Transnational legal influences of Venice and Amsterdam

2.1 Venice

The migratory pattern of the Portuguese conversos, who founded a community in

both Amsterdam and London, did not just transplant people into new places; it

transplanted judicial structures and habits.92 In new environments, those judicial

structures and habits adapted to local pressures whilst striving to retain adherence to

halakhic rules and traditional patterns for communal governance. Tracing the

historical origins of the judicial processes of the London community takes us to the

‘pan-ethnic’ umbrella organisational structure of Venice’s Jewish communities.93

When Portuguese converso merchants from the Iberian Peninsula settled as

temporary residents in Venice from about 1583, they joined two Jewish communities

already established in Venice, the Tedeschi Jews (called ‘German’, because of their

92 For the complex identity of the conversos, see Juan Ignacio Pulido Serrano, "Plural Identities: The

Portuguese New Christians", Jewish History 25 (2011), 129-151; David Graizbord, "Iberia and

Beyond: Judeoconversos and the Iberian Inquisitions", in The Cambridge History of Judaism: Vol 7:

The Early Modern World, 1500-1815, ed. Jonathan Karp and Adam Sutcliffe (Cambridge: Cambridge

University Press, 2018), 201-225. 93 Malkiel, A Separate Republic, 15. On Portuguese converso migratory patterns and communication

networks generally, see Ruderman, Early Modern Jewry, 34-37.

49

family’s origin), and the Levantine Jews, Jewish merchant traders from the Ottoman

Empire.94 Tedeschi Jews had lived in Venice’s ghetto nuovo since 1516 under formal

Charters of Privilege, and were joined by the Jewish Levantine merchants, whose

trading links with the Ottoman Empire the Venetian authorities were keen to

cultivate, and who settled in the ghetto vechhio.95 Although there may have been

some Levantine Jews who had Iberian antecedents, the Portuguese converso

merchants created, according to Jonathan Israel ‘an entirely novel cultural and

institutional milieu’ based on the ‘interconnecting trade networks’ between them and

the Levantine community, whose protection they sought when they first settled in

Venice.96 Daniel Rodriga, who negotiated the Charter terms for the settlement of the

Portuguese converso merchants with the Venetian authorities, disguised the

merchants’ New Christian origins by giving them a geographical designation of

western or Ponentini (Ponentine) Jews.97 The communal governance model of the

Levantine and Ponentine merchants, which was eventually adopted by the

Portuguese conversos who founded communities in Amsterdam and London, rested

on the centralization of authority in the hands of the oligarchic merchants who

served as parnassim (governors) on the Mahamad, the community’s board of

governors. They had overall decision-making and enforcement power in relation to

all internal rules and vigorously enforced their exclusive right to be the sole link with

Venice’s governmental authorities.98 However, whatever the Mahamad might have

asserted, the business of implementing this all-encompassing claim to authority was

highly problematic in practice.

2.1.1 Jewish justice under Charters of Privilege

From 1589 onwards, after Venice converted its system of temporary residence

permits granted to the Levantine and Ponentine merchants into a formal Charter of

94 While the Levantine and Ponentine merchants conducted international trade, the Tedeschi Jews

were permitted only to trade in second-hand goods and conduct moneylending. Jews were free to

choose non-trading occupations such as doctors and community employees. See Benjamin Ravid,

"The Venetian Government and the Jews", in The Jews of Early Modern Venice, ed. Robert C. Davis and Benjamin Ravid (Baltimore: The John Hopkins University Press, 2001), 3-30; "The First Charter

of the Jewish Merchants of Venice, 1589", AJS Review 1 (1976), 187-222. 95 "Venetian Government", 7-16. 96 Jonathan I. Israel, Diasporas within a Diaspora: Jews, Crypto-Jews, and the World of Maritime

Empires (1540-1740) (Boston, MA: Brill, 2002), 69, 73, 77. 97 Ravid, "Venetian Government", 17. 98 Israel, Diasporas, 76-80.

50

Privilege (condotto) for all Levantine, Ponentine and other Jewish merchants, Jewish

life in Venice was regulated through renewable Charters which set out the terms on

which Jews were permitted to live in the two Venetian ghettos.99 The First Charter of

1589 of the Jewish Levantine and Ponentine merchant community permitted them to

elect their own officials, ministers, and deputies, and gave them the authority to raise

taxes from the congregation. The First Charter expressly provided that community

officials had the right to use Venice’s magistrates to compel payment by disobedient

taxpayers.100 As Malkiel puts it ‘[t]he state was the source of coercive power. It

recognized the community’s right of self-government and it enforced communal

decrees.’101

Self-government did not imply an unfettered right to adjudicate disputes according to

Jewish law between members of the three different communities, or even among

members of the same community. Adjudicatory jurisdiction over the various Jewish

communities in Venice was split between the Cattaveri (one of Venice’s

magistracies), who oversaw general civil and criminal matters in the two ghettos, and

Venice’s Cinque Savii alla Mercanzia (Board of Trade), which was ‘the

inappellable judge’ of contract disputes between the Levantine and Ponentine

merchants according to the First Charter of 1589.102 The second Charter of 1598

modified this position by providing that the Board of Trade had jurisdiction as the

‘summary inappellable judges of the civil disagreements between the Jewish

99 Benjamin Ravid, "An Introduction to the Charters of the Jewish Merchants of Venice", in The

Mediterranean and the Jews: Society, Culture and Economy in Early Modern Times, ed. Elliott S.

Horowitz and Moisés Orfali (Ramat-Gan: Bar-Ilan University Press, 2002), 203-247. For background

on Venice’s ghetti see Ravid’s "Religious, Economic and Social Background and Content of the

Establishment of the Ghetti of Venice", in Gli Ebrei E Venezia: Secoli Xiv-Xviii: Atti Del Convegno

Internazionale Organizzato Dall'istituto Di Storia Della Società E Dello Stato Veneziano Della

Fondazione Giorgio Cini, Venezia, Isola Di San Giorgio Maggiore, 5-10 Giugno 1983, ed. Gaetano

Cozzi (Milan: Edizioni Comunità, 1987); Robert C. Davis and Benjamin Ravid, The Jews of Early

Modern Venice (Baltimore: Johns Hopkins University Press, 2001). For condotte generally in Italy, see Robert Bonfil, Jewish Life in Renaissance Italy, trans. Anthony Oldcorn (Berkeley Los Angeles:

University of California Press, 1994), 85-90. 100 Ravid, "The First Charter", 206. 101 Malkiel, A Separate Republic, 11. 102 Ravid, "The First Charter", 206; "The Third Charter of the Jewish Merchants of Venice, 1611: A

Case Study in Complex Multifaceted Negotiations", Jewish Political Studies Review 6 (1994), 83-

134.

51

merchants and other Jews or Turks’ as well as the ‘debts and contracts or cases

originating outside the Venetian state before they came to Venice.’103

These provisions appear to suggest that there was no room for Jewish justice in

relation to adjudicating civil and commercial disputes. From an external perspective,

Jewish judicial autonomy was constrained by Venice’s political dynamics between

its various judicial authorities and the terms of the various Charters of Privilege.

However, from the internal perspective of the Jewish communities, a space for

Jewish justice – where Jews were judged by Jewish judges according to Jewish law –

did exist, where it was possible to reconcile an internal vision of Jewish justice with

the externally imposed reality of a constrained jurisdiction. The Venetian authorities

did not prevent Jews from arbitrating their civil disputes (about which see further

below) and this was the space in which Jewish justice could thrive. By the sixteenth

century, arbitration had been formalised within Italian legal process pertaining to

disputes among Christians; it was regarded as a compulsory procedure and

arbitrators’ decisions were accorded the same status as court-ordered rulings.104 This

gave Jews the opportunity of obtaining a binding ruling from Jewish arbitrators

which had the same legal standing as the non-appealable rulings of the Board of

Trade. However, arbitration posed a problem for Jewish judicial authorities in a

crucial respect. Unlike the Board of Trade’s judicial powers over the Jews’ civil and

commercial disputes, which were compellable by the terms of the various Charters,

arbitration was a consensual process where Jewish courts of arbitration were

dependent on disputants voluntarily submitting to their jurisdiction. To remedy this

power imbalance, Jewish communities turned to their internal disciplinary powers –

the most potent of which was the threat of excommunication – to police compliance

with their judicial authority exercised by their courts of arbitration.

Excommunication was a sensitive issue for the Venetian authorities, particularly the

Cattaveri which policed the ghettos. David Malkiel has documented the history

behind the Cattaveri’s concerns which I briefly summarise. Venice’s three Jewish

communities had an ‘umbrella’ organisation akin to a federal structure which

centrally administered ‘shared tasks’ such as taxation, banking, and, most

103 "The Third Charter", 103. The Senate rejected Daniel Rodriga’s (one of the Ponentine leaders)

proposal to extend the Board of Trade’s jurisdiction even more widely to civil disputes between Jews

and Christians. 104 Bonfil, Rabbis, 221-222.

52

importantly for my purposes, controlling excommunication.105 In 1616, an

anonymous informer accused the umbrella community’s leaders of usurping the

Cattaveri’s authority by setting up magistrates who, when thwarted,

excommunicated miscreants in order to coerce them to obey their authority and

prevent them from complaining to the ‘“Christian magistrates”’.106 During Charter

renewal negotiations two years later, one of the Cattaveri wrote that “‘[e]recting

tribunals and judges among themselves, they form (so to speak) a new Republic.’”107

Eventually, the new 1624 Charter included a clause already in the charter of the

Tedeschi Jews ‘providing that in the future no magistracy could make any

interpretation, addition or diminution of the terms of the charter by way of

proclamation, ruling, or otherwise, without an explicit new decision of the

Senate.’108 But this success did not stop members of the community exploiting the

tensions around the excommunication power. In 1625, the Cattaveri criticised the

threat of excommunication by communal authorities to force Jews to submit to

community-based arbitrations ‘“so that they shall not be able to seek out the civil and

criminal magistracies.”’109

By far the most serious incident occurred in 1631 when the Venetian authorities

learned of the existence of a statute promulgated by the umbrella community which

forbade Jews from taking any action prejudicial to the community at large.

Suspecting the Jews of breaching their Charter privileges, the investigating

magistrate sought advice from Gaspar Lonigo, one of the two theological

jurisconsults of Venice.110 When Lonigo read the Italian translation of the offending

Hebrew statute, he ‘declared the Jews had formed “a republic separated from any

other dominion”’.111 Lonigo instructed his fellow jurisconsult, Fulgenzio Micanzi, to

105 Malkiel, A Separate Republic, 13-21. Jews living in Venice’s colonies, for example, Crete were

not part of the umbrella structure. See Rena N Lauer, Colonial Justice and the Jews of Venetian Crete

(Philadelphia: University of Pennsylvania Press, 2019), 85-87. 106 Malkiel, A Separate Republic, 38. Malkiel cites at n.29 the original document in the Archivio di

Stato di Venezia (ASV), Inquisitorato agl’Ebrei, b. 19, fol. 37v. 14.I.1616 (microfilmed at The

Central Archives of the Jewish People, hereinafter “CAHJP”: #HM5376). 107 Ibid., 39. Citing at n. 30: ASV, Senato Terra, F. 231, 8. XII.1618 (filed under 14. XII. 1618). 108 Ravid, "Introduction to the Charters", 220. 109 Malkiel, A Separate Republic, 40. Citing at n. 33: ASV, Inquisitorato agl’Ebrei, b.19, fol.123v

(CAHJP #HM5376). 110 For what little is known about Lonigo, see ibid., 32. 111 Ibid.; Benjamin Ravid, "A Republic Separate from All Other Government", in Thought and

Action: Essays in Memory of Simon Rawidowicz on the Twenty-Fifth Anniversary of His Death, ed.

Alfred A. Greenbaum and Alfred L. Ivry, A Republic Separate (Tel-Aviv: ’eriqover, 1983), 53-76.

For a history of the ‘state within a state’ argument, see Jacob Katz, "A State within a State: The

53

examine the internal records of the umbrella community (the Libro Grande) to

ascertain whether Jewish self-government was a threat to the Venetian state.112

Micanzi drew up nine objections that could be levelled at the Libro Grande,

including that it forbade communal members from having recourse to Venetian

magistracies.113 Micanzi argued, however, that this provision did not challenge

Venetian sovereignty on several grounds. Firstly, it only prevented plaintiffs’ (rather

than defendants and judges) exercising the right to access Venetian judicial process

rather than the right itself.114 Secondly, it was unobjectionable as demonstrated by

St. Paul’s injunction forbidding the faithful from litigating in the infidel’s courts.115

Thirdly, it promoted consensual settlement of disputes which was in the interest of

government.116 As to the community’s coercive power, Micanzi’s rabbinic adviser

maintained that it did not exist because excommunication amounted to ‘verbal

discipline’ only. This ‘“tenuous thread” (tenue filetto) should rightfully be conceded

to the community, since the Venetian government does not obtain complete

obedience to its laws even with the coercive power at its disposal.’117 Micanzi

himself concluded that excommunication was a spiritual rather than temporal matter

which could not threaten the sovereignty of the Venetian state.118 Although fines

might be a temporal punishment, since government magistracies collected them for

the state any underlying injustice resulting from their imposition could be corrected

by state authorities.119

History of an Anti-Semitic Slogan", Proceedings of the Israel Academy of Sciences and the Humanities 4 (1969), 29-58. 112 On the Università, the cross-communal Jewish governmental structure in Venice, see Malkiel,

"Ghetto Republic", 117. No Venetian Jewish communal records survive, except those for 1607-24

because they were translated into Italian as the Libro Grande (122). 113 A Separate Republic, 42-53. 114 ibid., 48. 115 1 Corinthians 6. 116 Malkiel, A Separate Republic, 49. 117 Ibid., 53. 118 Ibid., 45-47. Only rabbis were endowed with the halakhic authority to pronounce

excommunication, but they did so only when requested by the lay authorities. Christian authorities

controlled the exercise of excommunication, restricting its use to matters that served their own purposes, for example, enforcing payment of taxes: see Bonfil, Jewish Life, 199-205. For an

argument that excommunication had very real temporal consequences, see Ann Oravetz Albert, "“A

Civil Death”: Sovereignty and the Jewish Republic in an Early Modern Treatment of Genesis 49:10",

in Jewish Culture in Early Modern Europe: Essays in Honor of David B. Ruderman, ed. Richard I.

Cohen, et al. (Cincinatti: Hebrew Union College Press, 2014), 63-72. 119 Malkiel, A Separate Republic, 46-47. Fines were the principal method of coercion: see "Ghetto

Republic", 135.

54

The Libro Grande affair captures governmental attitudes to Jewish judicial authority

exercised within a corporatist Jewish existence under charters of privilege. The

corporate model accepted by Micanzi as benefiting both the Jews and the Venetian

authorities facilitated a form of legal pluralism that found a place for the assertion of

Jewish judicial authority. That place was in the consensual process of arbitration.

2.1.2 Arbitration as a compulsory communal process

The centrality of arbitration to the judicial life of seventeenth century Venetian Jews

has its roots in Roman law, which, as previously discussed, gave all citizens of the

Roman Empire the right to arbitrate any dispute before any arbitrators whom they

had voluntarily and mutually agreed to appoint to hear their dispute. By the sixteenth

century, arbitration panel decisions in Italy had the force of law, and arbitration had

become a preferred method of resolving disputes actively imposed in some types of

disputes by the governing authorities.120 As cives (citizens), Jews had the right to

appoint arbitrators of their choice, including Jewish arbitrators.121 Some charters of

privilege expressly acknowledge the right of arbitration, and even when an express

right to arbitrate was not granted, this did not prove fatal to practical implementation

of a justice system based on courts of arbitration.122 Bonfil points out that even

Jewish communities without a charter of privilege granting them judicial autonomy,

often sought to ‘build a system of internal jurisdiction over their co-religionists by in

some way transforming arbitration into a compulsory procedure.’123 Jewish

120 Bonfil, Rabbis, 221-223. For further literature on Italian arbitration procedure, see: 221, n. 49.

Bonfil extensively relies on Guiseppe Salvioli, "Storia Della Procedura Civile E Criminale", in Storia

Del Diritto Italiano Di P. Del Giudice, ed. Pasquale del Giudice, Enrico Besta, and Giuseppe Salvioli

(Milan: U. Hoepli, 1923-1927). 121 Bonfil, Rabbis, 207-208. Relying on Vittore Colorni, Legge Ebraica E Leggi Locali: Ricerche

Sull'ambito D'applicazione Del Diritto Ebraico in Italia Dall'epoca Romana Al Secolo XIX (Milano:

A Giuffrè, 1945), 33-94. On Jewish citizenship, see Osavaldo Cavallar and Julius Kirshner, "Jews as

Citizens in Late Medieval and Renaissance Italy: The Case of Isacco Da Pisa", Jewish History 25

(2011), 269-318. See also Bonfil, Jewish Life, 205-207. The 1589 and subsequent charters did not

refer to Jews as citizens as that would have implied equal trading rights to the Venetians: see

Benjamin Arbel, "Jews in International Trade: The Emergence of the Levantines and the Ponentines", in The Jews of Early Modern Venice, ed. Robert C. Davis and Benjamin Ravid (Baltimore: The John

Hopkins University Press, 2001), 73-96: 89. 122 Bonfil, Rabbis, 212. For example, a 1533 provision in a Privilege granted by the Duke of Milan

provided that disputes ‘in the civil realm’ amongst Jews would be heard by ‘two Jewish doctors

(according to Bonfil, meaning two rabbis) or two Jewish arbitrators who will see and judge in

accordance with their laws and statutes’. 123 Ibid., 208.

55

communities, according to Bonfil, ‘absorbed and incorporated’ the outside influence

of Italian arbitration law and procedure, finding that problems with which Italian

lawyers had to grapple were frequently already addressed in halakhic sources.124

As the judicial system of the Levantine and Ponentine Jewish communities of

Venice evolved, it incorporated elements of both these models, the transformation of

arbitration into a compulsory procedure by the Jewish community itself and the

express recognition of the right of arbitration by charter. We see evidence of the

former in two sources I have already mentioned, the 1625 complaint to the Cattaveri

about the use of excommunication, forcing Jews into effective binding internal

arbitration, to prevent them taking cases to the city’s magistracies, and of course in

the Libro Grande affair itself. Evidence of the latter comes from the 1635 Charter

renewal negotiations. As Ravid explains, the Levantine and Ponentine merchants

requested a charter amendment to provide that, when parties wished to arbitrate a

dispute, they could proceed after first obtaining permission to do so from the Board

of Trade. According to the merchants, they suffered ‘great harm to their trade’ from

litigating in the courts because of interference from the Cattaveri, who ignored state

rules that civil matters were only to be adjudicated by the Board of Trade. The terms

of the 1636 Charter formally acknowledged that the merchants had the right to seek

permission from the Board to arbitrate their mercantile disputes. The terms went on

to stipulate that when they issued their arbitration ruling, arbitrators had to swear

before the magistracy that the parties had arbitrated entirely voluntarily, without

force, violence, or excommunication. If those criteria were not satisfied, the

Cattaveri had the power to annul the arbitration ruling, and punish the guilty.125

From 1636 therefore, the Levantine and Ponentine communities had gained formal

recognition by Charter of their existing internal arbitration procedures.

2.1.3 Laymen versus rabbinic arbitrators

The transformation of arbitration into an internal compulsory process raised new

questions about controlling who the parties would appoint as arbitrators. As

previously discussed, talmudic authorities supported a preference for courts of

124 Ibid., 223. 125 Malkiel, A Separate Republic, 35-36; Ravid, "Introduction to the Charters", 221-228.

56

arbitration to be staffed by experts, who were competent to decide a dispute

according to relevant halakhic principles. Although, as we have seen, laymen could

and did serve as arbitrators, requiring expert halakhic knowledge inevitably

narrowed the pool of acceptable arbitrators to rabbis, who were respected scholars.

This dilemma was reflected in the evolving use of alternative phraseology in

arbitration agreements, such as ‘by law or close to law’ (le-fi ha-din o karov la-din)

or more ambiguously with the addition of the phrase ‘as their eyes see fit’, referring

to a compromise in which as we have already seen equitable principles rather than

strict law prevailed.126

The arbitration process, according to Bonfil, facilitated the rise of rabbis as ‘central

figures’ in the judicial systems of all the Italian Jewish communities, and even where

laymen did serve as arbitrators, they turned to rabbis for detailed guidance before

making their rulings.127 The ordinances of individual Italian Jewish communities

transformed arbitration into a court-like procedure which mandated parties who

could not agree on arbitrators to come to their community’s court, comprising two

lay persons and a rabbi, who had the authority to appoint arbitrators on their behalf

subject to internal procedural rules. In Venice, the individual communities, rather

than the umbrella organisation, were responsible for providing rabbinical personnel

to hear arbitrations.128 Arbitration rulings became legally binding when documented

in arbitration agreements that were notarised by a state administrative official and

filed in notarial archives.129 Once notarized, decisions of Jewish arbitrators were

enforceable by state authorities like any other arbitration ruling.

Thus, even though the communal courts of Venice’s Jewish communities operated

within carefully prescribed parameters as arbitration tribunals only, their existence

ensured a pluralist framework in which the prohibition against recourse to non-

Jewish courts survived. The focus on internal dispute resolution through arbitration

preserved the most fundamental aspect of the prohibition against using non-Jewish

126 Bonfil, Rabbis, 226-229. 127 Ibid., 229. For rabbinic criticism of arbitration agreements which permitted the appointment of

laymen as arbitrators, see ibid., 226-227. 128 Malkiel, A Separate Republic, 192-193. 129 Bonfil, Rabbis, 244. On sixteenth-century responsa concerning the limits of notarisation of Jewish

wills, see David Malkiel, "Jews and Wills in Renaissance Italy: A Case Study in the Jewish-Christian

Cultural Encounter", Italia: Studi e ricerche sulla storia, la cultura e la letteratura degli ebrei d'ltalia

12 (1996), 7-69.

57

courts, the submission of disputes between fellow Jews to Jewish judges. The

community’s accommodation of existing Italian legal procedures for arbitration

created a precedent for how Jewish communities might adapt to the increasing legal

centralism of absolutist states and their bureaucracies.

Venice’s Ponentine community is famously known as the ‘mother’ of the Portuguese

Jewish community of Amsterdam who transposed the Venetian model of communal

governance to early seventeenth-century Amsterdam. In the next section, I consider

how Amsterdam’s conversos created their judicial model in the context of a different

legal environment. Amsterdam’s merchants were not constrained by charters of

privilege but, nevertheless, they still faced challenges from external judicial

authorities. As we shall see, in accommodating these challenges, the Amsterdam

conversos adopted similar solutions to their counterparts in Venice.

2.2 Amsterdam

2.2.1 Introduction

When the Ponentine converso merchants settled in Venice, they had to fit into the

formal established relationship between the Venetian authorities and the pre-existing

Tedeschi and Levantine Jewish communities. The Portuguese converso merchants

who settled in Amsterdam at the turn of the sixteenth century faced a different

situation. Amsterdam had no Jewish presence which offered the merchants a blank

slate on which to create a community built around their unique identity as the Nação

(‘Nation’), ‘an elliptical term’, according to Miriam Bodian, ‘suggest[ing] both

familiarity and foreignness, intimacy and phobia’.130 It encapsulated the separate

identity claimed by the Portuguese Jews, whose collective memory was inextricably

connected to their unique historical experience living as New Christians in the

Iberian Peninsula.131 While the Nação as a collective may have identified as Jews,

130 Miriam Bodian, Hebrews of the Portuguese Nation: Conversos and Community in Early Modern

Amsterdam, pbk. ed. (Bloomington: Indiana University Press, 1997), 13. See also Swetschinski,

Reluctant Cosmopolitans, 165-167. For identity issues specific to the wealthy merchants among the

Nation, see Jessica V. Roitman, The Same but Different?: Inter-Cultural Trade and the Sephardim,

1595-1640 (Leiden: Brill, 2011). 131 For an overview of the historical background, see Graizbord, "Iberia", 201-225.

58

individual religious identification was neither guaranteed nor unequivocal.132 Often,

loyalty to and identification with the Nação came from kinship ties and intertwined

social and economic relationships, rather than through commitment to Jewish

religious beliefs or a desire to commit to Jewish practice as embodied in

authoritative halakhic codes such as the Shulḥan ‘Arukh.133 As Bodian has observed,

establishing a normative rabbinic framework in the fledgling Amsterdam community

‘entailed a transformation of religious experience’ on an institutional and personal

level, which required members to accept new and enforceable behavioural

boundaries as well as a personal commitment to integrating Jewish law into their

daily life.134

The Venice Ponentine community remained a strong and influential force on the

Amsterdam community in its formative years. Kinship ties, international trading

networks, and rabbinical assistance all contributed to the steady flow of people,

information, and ideas between the two cities.135 The period in which the Amsterdam

community drew up its foundational Ascamot of 1639 straddled the years in which

Venice community experienced its problems with Venetian authorities about Jewish

judicial authority. It is impossible definitively to say whether this had a direct

influence on the Amsterdam community’s judicial model, but it is certainly arguable

that the intimate connections of people and place brought Venetian concerns to

Amsterdam.136 Whatever the position, there were both similarities as well as

important differences between the judicial models of Venice and Amsterdam, not

least because the legal framework that all Jews encountered in Amsterdam was

different to Venice. An important difference was that, whereas the Venetian

Ponentine community could draw on an existing Italian Jewish judicial culture, the

Portuguese community had to create their Jewish judicial space anew.

132 See Graizbord in "Religion and Ethnicity among 'Men of the Nation': Toward a Realistic

Interpretation", Jewish Social Studies 15 (2008), 32-65. 133 Bodian, Hebrews, 30. For the challenges in re-educating the conversos see, ibid., 96-131; Yosef

Hayim Yerushalmi, "The Re-Education of the Marranos in the Seventeenth Century", in The Rabbi

Louis Feinberg Memorial Lecture in Judaic Studies (Cincinnati: Judiac Studies Program University

of Cincinnati, 1980); Israel, Diasporas, 84-85. cf. Marina Rustow, "Yerushalmi and the Conversos", Jewish History 28 (2014), 11-49. 134 Bodian, Hebrews, 103. 135 On the early history, see ibid., 43-52; Swetschinski, Reluctant Cosmopolitans, 172-196; Yosef

Kaplan, "The Jews in the Republic until About 1750: Religious, Cultural, and Social Life", in The

History of the Jews in the Netherlands, ed. J. C. H. Blom, R. G. Fuks-Mansfeld, and Ivo Schoffer

(Oxford: The Littman Library of Civilization, 2007), 116-125. 136 Oliel-Grausz, "Dispute Resolution", 235-236.

59

2.2.2 Jewish justice without a charter of privilege

Bodian describes the Dutch attitude towards the Jews, as a ‘policy of evasion’ in

which Amsterdam’s magistrates accommodated the Jews within the wider context of

religious toleration stemming from the States of Holland’s declaration in the Union

of Utrecht of 1579 that acknowledged an individual’s enjoyment of freedom of

religion without persecution.137 In 1598, the Amsterdam burgomasters passed a

resolution which granted the Portuguese converso merchants the right to purchase

full poortersrecht (burgher’s rights) so long as they were ‘Christians’ and lived an

‘honest life’, which gave the supposedly Catholic conversos the right to practice

their religion in private.138 Conversos who openly returned to Judaism had restricted

economic, political, and civic rights and their children could not inherit their existing

burgher’s rights.139 Concerned about Jewish influence on the city’s Christians, in

1616 Amsterdam’s burgomasters passed a regulation that forbade Jews from

criticising Christianity or taking steps to lure Christians away from their religion, and

sexual relations with Christians was prohibited. These measures were to remain law

until they were abolished in 1795.140 An attempt in 1619 to introduce a formal

charter of privilege across the States of Holland failed, though individual

municipalities remained entitled to adopt Amsterdam’s local approach to Jewry

legislation.141

Accordingly, Jewish legal status and civic life became regulated either indirectly by

state or city legislation that set the parameters for general religious toleration, or

directly through city regulations aimed explicitly at Jews, but Amsterdam’s

restrictions remained insignificant compared to Venice’s formal charters. Although

no charter compelled Amsterdam’s Jews to litigate before civil authorities, the

boundaries of Jewish control over judicial matters were contested. Amsterdam’s

notarial records show that Portuguese Jewish merchants regularly used both

137 Bodian, Hebrews, 53-61. 138 Swetschinski, Reluctant Cosmopolitans, 11; Bodian, Hebrews, 58. 139 Swetschinski, Reluctant Cosmopolitans, 20-22; Bodian, Hebrews, 58-60. 140 Swetschinski, Reluctant Cosmopolitans, 13; Bodian, Hebrews, 61. 141 Arend H. Huussen, "The Legal Position of the Jews in the Dutch Republic c. 1590-1796", in Dutch

Jewry: Its History and Secular Culture (1500-2000), ed. Jonathan I. Israel and R. Salverda (Leiden:

Brill, 2002), 25-41: 34. Formal charters of privilege had been drawn up in Alkmaar (1604), Haarlem

(1605) and Rotterdam (1610) but did not become operative because too few Jews settled in these

cities.

60

Amsterdam’s courts and private arbitration to resolve disputes among themselves

and with non-Jews.142 In 1632, the three then existing Portuguese Jewish

communities of Amsterdam drew up as part of their merger negotiations a twenty-

clause litigation protocol to address the rapidly increasing numbers of disputes

submitted to Dutch judicial processes.143 But, when Kaal Kadosh Talmud Torah was

established in 1639 by the merger of the three communities, a single clause (Ascama

33) governing litigation remained in the foundational Ascamot of 1639.144

Ascama 33 recognised that an impermeable boundary between Jewish and state

judicial jurisdiction for civil disputes was unworkable.145 This realism rejected the

terms of the earlier, lengthier 1632 litigation protocol which had followed halakhic

principles more closely by asserting jurisdiction over all disputes among Jews, even

to the extent of forbidding potential litigants from agreeing among themselves to

litigate in non-Jewish courts and by a permission system that even applied to urgent

cases.146 In a shift of power from the parnassim to the merchants, Ascama 33

established that all disputes could be heard in non-Jewish courts with permission and

urgent cases (albeit more narrowly defined) even litigated there without

permission.147 The community’s Samas (shammash; beadle) was required to

summon the parties to a hearing before the Mahamad, whose members were tasked

with appointing judges-arbitrators (juizes louvados) to hear the dispute. If the

142 Oliel-Grausz, "Dispute Resolution", 229. For the notarial records, see "Notarial Records Relating

to the Portuguese Jews in Amsterdam before 1639", Studia Rosenthaliana (1967-2001). On litigation

in Dutch courts, see Roitman, The Same but Different?, 10; Cátia Antunes and Jessica Vance

Roitman, "A War of Words: Sephardi Merchants, (Inter)National Incidents, and Litigation in the

Dutch Republic, 1580-1640", Jewish Culture and History 16 (2015), 24-44. On the economic value of compromising disputes, see Tijl Vanneste, "Commercial Culture and Merchant Networks: Eighteenth-

Century Diamond Traders in Global History" (PhD diss., European University Institute, 2009);

"Unpaid Diamonds: Trust, Reputation, and the Merchants' Style in Eighteenth-Century Europe",

Shofar: An Interdisciplinary Journal of Jewish Studies 38 (2020), 13-45. See also Francesca

Trivellato, The Familiarity of Strangers: The Sephardic Diaspora, Livorno, and Cross-Cultural Trade

in the Early Modern Period (New Haven: Yale University Press, 2009). 143 Kaplan, "Eighteenth Century Rulings"; Oliel-Grausz, "Dispute Resolution". cf. Swetschinski,

Reluctant Cosmopolitans, 226-227; Miriam Bodian, "Review 'Reluctant Cosmopolitans' by

Schwetschinski", AJS Review 27 (2003), 149-151. 144 For possible reasons for this drastic curtailment of the 1632 protocol, Oliel-Grausz, "Dispute

Resolution", 234-236. 145 Kaplan, "Eighteenth Century Rulings", 4. 146 I have summarised here the protocol’s main provisions which are discussed more fully in Oliel-

Grausz, "Dispute Resolution", 232-234; Kaplan, "Eighteenth Century Rulings". 147 According to Vanneste ‘litigation served more as a threat than as a real method for problem

solving.’ See Vanneste, "Commercial Culture", 237. Formal litigation was more common for certain

types of contracts covered by the urgency exception: see Francesca Trivellato, "Jews and the Early

Modern Economy", in The Cambridge History of Judaism: Vol. 7: The Early Modern World, 1500-

1815, ed. Jonathan Karp and Adam Sutcliffe (Cambridge: Cambridge University Press, 2018), 159.

61

arbitration did not happen within eight days, or was unsuccessful, the parties were

entitled to take their dispute to a non-Jewish court. The process excluded civil

disputes based on letters of exchange or seizure of goods because these were urgent

matters where delay might prejudice justice. Apart from urgent cases, litigating in

non-Jewish courts without prior permission was subject to punishment.148 All

religious matters (termed denim by Ascama 20 of the 1639 Ascamot) were submitted

to the community’s employed rabbis, though the Mahamad retained the right to

impose their own decision if the rabbis’ vote was tied.149 As we shall see in Chapter

IV, the London community’s foundational Ascamot of 1664 closely followed these

provisions.

We do not know whether the Amsterdam community used both mediation and

arbitration in the seventeenth century because formal dispute resolution records

commenced in the eighteenth century. These records indicate that the parnassim

heard a wide variety of claims (debts, family disputes, commercial matters,

professional disputes) and settled them by mediation, arbitration, or in appropriate

cases, by referring the matter to the bet din.150

Sorkin perceptively points out that the Amsterdam community ‘looked to Venice as

its mother community, yet Venice’s status was essentially different since it was

based on charters.’151 Although arbitration took centre stage in both cities’ judicial

models, their relationship with state legal authority diverged. From the outset of the

Amsterdam community, its merchants were entitled to arbitrate without restrictions

imposed by the authorities, whereas it was only in 1636 that the Ponentine merchants

of Venice managed to insert in their charter an express right to appoint Jewish

arbitrators. Amsterdam’s community also had complete freedom to define the

jurisdictional boundaries of its justice model, whereas the Venetian charters dictated

which disputes had to be submitted to specific magistrates. However, problems still

arose in Amsterdam as I discuss in the next section.

148 For the Portuguese text, see Oliel-Grausz, "Dispute Resolution", 233 n. 14. 149 Ibid., 234 n. 15. 150 Ibid., 238-242. 151 David Sorkin, "Salo Baron on Emancipation", AJS Review 38 (2014), 423-430; Baron, The Jewish

Community. See also David Engel, "A Colleague Not a Sacred Authority—Reflections on Salo

Baron's Scholarly Opus", AJS Review 38 (2014), 441-445; Carlebach, "Between Universal and

Particular".

62

2.2.3 Religious arbitration as a voluntary, recognised process

Two features of Amsterdam’s legal culture were attractive to Jewish litigants: it

encouraged litigants to arbitrate before embarking on formal court litigation,152 and it

integrated arbitrations before ‘self-ruled’ churches into Dutch legal process by what

Oliel-Grausz has termed ‘embedded justice’.153 This facilitated the recognition of

the arbitration rulings of religious authorities and their enforcement in the Dutch

courts if necessary. Jews could commence litigation in a Dutch court and then

request the court to remit the case to the Amsterdam community’s parnassim to

organise a religious arbitration in the community’s judicial space either before the

parnassim alone or in combination with the bet din.

Forum shopping between Dutch and Jewish jurisdiction was common, and Jews used

Jewish judges when halakhic principles provided them with a substantive

advantage.154 Jewish arbitrators’ awards were notarised by Dutch notaries and

registered with the Dutch court. Arbitration agreements frequently included a

standard clause providing a right to appeal to the Dutch courts in a so-called

condemnation procedure to invoke Dutch judicial enforcement powers if

necessary.155 While Italian law transformed arbitration into a process that treated

arbitration awards as having the same status as court rulings, Amsterdam preserved

arbitration’s consensual nature by leaving it to the parties to include this

condemnation clause. Despite these structural differences, by the seventeenth

century both the Venetian Ponentine community and the Amsterdam community

152 Oliel-Grausz, "Dispute Resolution", 248. 153 Ibid., 249-252. 154 Ibid., 243. 155 See Benjamin Furley’s letter to John Locke, dated 7 September 1696, describing Amsterdam’s

condemnation procedure in Derek Roebuck, Arbitration and Mediation in Seventeenth-Century

England (Oxford: Holo Books, The Arbitration Press, 2017), 433-434. See also Henry Horwitz and

James Oldham, "John Locke, Lord Mansfield, and Arbitration During the Eighteenth Century", The

Historical Journal 36 (1993), 137-159: 139. For an example arbitration agreement that invoked the

condemnation process, see Oliel-Grausz, "Dispute Resolution", 242. The parties submitted the dispute to the Mahamad and promised to abide by their decision ‘“as if they had been passed by the Supreme

Court of Holland, submitting to the agreement as of right […]”’. Oliel-Grausz speculates that this was

an agreement not to appeal to secular courts. However, as per Furley’s letter to Locke, it may also

have been a standard clause that integrated arbitrations with state enforcement. Furley’s letter states

that ‘the Compromisse must impower the last court of Appeal to pass this Condemnation, for if any

inferior court should do it, a superior might give relief, to either party complaining.’ (Quoted in

Roebuck, Arbitration and Mediation, 434.)

63

shared an arbitration culture that enabled them to have disputes heard before Jewish

judges whose arbitration awards were enforceable in civil courts if necessary.

As in Venice, however, Jewish enforcement powers – exercisable through the ḥerem

– was a contentious issue. Amsterdam’s unimplemented 1632 litigation protocol

envisaged enforcement just short of ḥerem. Default judgment would be entered

against litigants who failed to respond to three summonses to appear before the

parnassim, and non-compliance with that judgment within thirty days automatically

resulted in a ban. This fell short of spiritual excommunication, but it did prevent

access to the religious life of the community.156 Ascama 33 of the 1639 Ascamot,

however, included only a general unspecified power for the parnassim to proceed as

they thought fit against anyone who defied their authority.157

However, there had been historical unease about the Jewish ‘self-ruled’ church

excommunicating members without a corresponding right of challenge in the Dutch

courts. In contrast to Haarlem’s 1605 charter of privilege that did not require Dutch

court oversight of Jewish judicial affairs, Rotterdam’s charter of 1610 included a

general right of appeal to the city’s courts.158 In 1615, the leading Dutch jurist, Hugo

Grotius, mooted a formal legal framework under which Jews could be

excommunicated by the Jewish authorities but with a right of appeal to the local

authorities to investigate and decide the matter ‘according to the laws of the Old

Testament.’159 This was in fact the position taken by the Amsterdam magistrates

towards the ḥerem, to recognise excommunication as a disciplinary weapon as well

as an excommunicated person’s right to challenge it in the city’s courts. 160

Excommunication was applicable to a bewildering mixture of transgressions that

penetrated many aspects of Jewish daily life.161 Eventually, the Amsterdam

authorities changed their attitude to the ḥerem, following several controversial cases

and, in 1683, the magistrates temporarily prohibited the use of the ḥerem without

156 Oliel-Grausz, "Dispute Resolution", 232. On the language of ḥerem, see Kaplan, An Alternative

Path, 177. 157 Oliel-Grausz, "Dispute Resolution", 234. 158 Jacob Meijer, "Hugo Grotius' "Remonstrantie"", Jewish Social Studies 17 (1955), 91-104: 103. The

original Dutch text is quoted in Kaplan, An Alternative Path, 109 n. 4. Citing Jakob Meijer and Hugo

Grotius, Remonstrantie Nopende De Ordre Dije in De Landen Van Hollandt Ende Westvrieslandt

Dijent Gestelt Op De Joden (Amsterdam Joachimsthal, 1949). 159 As quoted in Kaplan, An Alternative Path, 133. 160 Ibid., 109 n.4; 134. 161 Ibid., 115-118.

64

their express permission. As Kaplan points out, however, by this time the

community had desacralized the ḥerem, and had substituted it with exclusion orders

that denied membership rights, such as a seat in the synagogue and burial in the

community’s cemetery. Members could now sever their religious links with the

community but still retain their social and economic links to the Nação.162 Litigation

in non-Jewish courts was not automatically subject to extreme disciplinary measures

and, accordingly, was not a boundary marker of non-conforming behaviour. This

suggests that Dutch arbitration culture was not regarded as an extreme threat to the

maintenance of a separate and distinct Jewish judicial space.

2.2.4 Lay versus rabbinic authority

The 1639 Ascamot conferred absolute authority on ‘os senhores do Mahamad’ (the

Gentlemen of the Mahamad), who had ‘authority and pre-eminence in all matters.’163

Although the Mahamad ‘was entrusted…with maintaining rabbinic norms’, as in

Venice, this did not mean entrusting all judicial authority to rabbis, despite their

superior halakhic expertise.164 This point was implicitly conceded in the 1639

Ascamot which stated that the Mahamad were to seek clarification from the ‘salaried

hakhamin’ about denim (religious law), but lay authority was preserved by requiring

final rulings to be made or endorsed by the Mahamad.165

Unlike the 1632 litigation protocol, the 1639 Ascamot did not require laymen and

rabbis to decide cases according to ‘law or close to law’, nor did it state that laymen

could apply the law of merchants where this did not conflict ‘with our holy laws’.166

Given the parnassim’s lack of halakhic expertise, it is likely that they took advice

from rabbis on halakhic issues in civil disputes. Decision-making was complicated

by the fact that all residents of Amsterdam had to abide ‘by the laws of Holland and

Amsterdam’.167 The Amsterdam community eventually accepted that it was

necessary to submit to state laws, such as the civil registration of marriage and the

162 Ibid., 108-142 esp. 133-139; 143-154. 163 Quoted by Bodian, Hebrews, 51. 164 Ibid., 111. 165 Oliel-Grausz, "Dispute Resolution", 234. 166 Kaplan, "Eighteenth Century Rulings", 3; "Discipline, Dissent", 389; Oliel-Grausz, "Dispute

Resolution", 232-233. 167 Swetschinski, Reluctant Cosmopolitans, 20.

65

prohibition against uncle/niece marriage, even though these were issur matters for

the exclusive jurisdiction of Jewish judges.168

By the early eighteenth century, Amsterdam had a fully functioning and highly

esteemed, institutionalized Portuguese bet din.169 At the same time, the parnassim

themselves acted as mediators or arbitrators for civil cases, rather than separately

appointing arbitrators. The bet din decided religious matters as well as providing an

additional level of internal dispute resolution when the parnassim were unable to

settle a dispute.170 With the weakening of ḥerem as a tool of social discipline, the

Mahamad’s power gradually waned and, as dissenters left the community, ‘the

presence of those remaining strictly loyal to the halakhah was felt more strongly.

While it is true that the control of the rabbis and rabbinical scholars increased, this

control affected a community shrinking in numbers.’171 ‘In the final analysis’, writes

Ruderman, ‘it was the individual yehidim (members) of the Jewish community who

determined their own fate in choosing to accept the authority of the Mahamad or

not.’172

2.2.5 Analytical challenges posed by the Amsterdam judicial model

The ‘judicial turn’ in Jewish studies has pivoted away from the language of judicial

autonomy as the sole interpretative framework to understand how Jewish justice

systems functioned in surrounding legal cultures in the early modern period.173 There

is, according to Elisheva Carlebach, a scholarly ‘consensus that, in many times and

places, judicial (or legal) pluralism’ more accurately describes how Jewish legal

systems operated than autonomy.174 Although Oliel-Grausz also dismisses judicial

168 Ibid., 18-19; Huussen, "The Legal Position", 36; Meijer, "Hugo Grotius", 103 n. 31. 169 Kaplan, "Eighteenth Century Rulings". 170 Oliel-Grausz, "Dispute Resolution", 244. 171 Kaplan, An Alternative Path, 149-150. 172 Ruderman, Early Modern Jewry, 71. 173 For opinions on the legal status of Amsterdam’s Portuguese community, cf. Kaplan, An

Alternative Path, 139; Swetschinski, Reluctant Cosmopolitans, 17, 48, 185, 221; Sorkin, "Salo Baron

on Emancipation"; Baron, The Jewish Community. On the community’s self-perception of its status,

see Swetschinski, Reluctant Cosmopolitans, 187; Miriam Bodian, "Biblical Hebrews and the Rhetoric

of Republicanism: Seventeenth-Century Portuguese Jews on the Jewish Community", AJS Review 22

(1997), 199-221. 174 Carlebach, "Early Modern", 194.

66

autonomy as an interpretative tool for understanding the Amsterdam experience, she

also rejects the notion of legal pluralism as of limited analytical value unless ‘broken

down into subnotions or categories.’175

While legal pluralism as a mere label is simplistic and unhelpful, theories of legal

pluralism remain helpful analytical tools to understand how host legal systems

accommodated Jewish justice and the internal functionality of Jewish judicial spaces.

In the early modern period, Amsterdam’s legal culture had strong pluralist

tendencies which accommodated the claims to judicial authority of a variety of

religious denominations within the city. In Robert Cover’s terms, Dutch courts did

not act with violence to ‘kill’ a minority’s normative legal universe in order to

recognise only the legitimacy and primacy of the Dutch legal system.176 An

alternative religious legal culture was thus permitted to co-exist within a pluralist

framework. The Amsterdam community’s justice model also adopted a pluralist

stance by aligning its internal procedures to Dutch court and arbitration procedures.

The norms for acceptable litigation behaviour included the circumstances in which

congregants were permitted to use civil courts. Communal justice remained self-

regulating if individuals remained invested in the maintenance of the community’s

normative universe. Litigation in the Dutch courts was instrumental in creating a

communicative process under which Dutch courts might recognise (or not) the

validity of Jewish judicial processes under the binary legal/illegal, and thereby to

integrate those Jewish processes within Dutch legal procedure.177 While the absence

of a hard boundary between Dutch courts and the Jewish judicial space created

challenges, the flexible adaptation to Dutch legal culture preserved a process in

which disputes might be remitted to the Amsterdam community’s parnassim for

religious arbitration and enforcement of their ruling in the Dutch courts. Such

enforcement even extended to the municipal authorities supporting the parnassim’s

appeals to arrest and even imprison members who defied their authority.178

175 Oliel-Grausz, "Dispute Resolution", 247. Oliel-Grausz does not clarify whether she considers her concept of ‘embedded justice’ to be a sub-notion or category of legal pluralism. 176 For Cover’s argument that judicial claims to jurisdiction operate with violence (‘jurispathically’) to

kill other legal traditions, see his 1982 essay ‘Nomos and Narrative’ reproduced in Minow, Ryan, and

Sarat, Narrative, Violence and the Law, 155-157. His ideas are elaborated in ‘Violence and the

Word’, reproduced at pp. 203-238. 177 Teubner, "Two Faces of Janus", 1451. 178 Kaplan, "Discipline, Dissent", 390; An Alternative Path, 150.

67

But Oliel-Grausz is undoubtedly right to emphasise that historical specificity

requires additional interpretative tools to fully analyse Jewish legal systems in

different locations. To this end, she fruitfully deploys the anthropological theory of

the ‘use of justice’ to analyse the ‘litigation patterns’ that resulted from individual

litigant choice of forum.179 She concludes that there was a ‘vast array’ of options for

individuals ranging from the ‘non-judicial’ (private arbitration between individuals)

and the ‘infrajudicial’ (dispute resolution by the parnassim either through mediation

or arbitration) to the ‘judicial’ (Dutch courts). A disadvantage of her categorisation,

however, is that it follows a Western-positivist approach to treat only dispute

resolution in state courts as truly judicial, thus negating how the Amsterdam

community itself may have perceived its own internal dispute resolution

processes.180

Teubner’s binary legal/illegal exposes that the self-regulating processes of the

Amsterdam community’s Jewish judicial space were no less legal than those of the

Dutch courts and fell within the halakhic framework previously discussed.181 The

halakhic framework for the administration of justice in the diaspora strongly

favoured practical, local solutions that adapted to the relevant host legal culture. We

see this in the geonic period, in the Roman Empire, in early modern Venice, as well

as in Amsterdam where, by the eighteenth century, settlement of disputes through

mediation, arbitration or adjudication was established.182 Decision-making was

undertaken by three judges, either by lay parnassim who principally heard matters of

mamon, or expert rabbinical judges of the bet din, who provided opinions on issur

matters. Permission to use non-Jewish courts was available to plaintiffs who were

faced with recalcitrant defendants, while in urgent cases permission was not

required.183

179 Oliel-Grausz, "Dispute Resolution", 246. See Martin Dinges, "The Uses of Justice as a Form of

Social Control in Early Modern Europe", in Social Control in Early Modern Europe Vol. 1 (1500-

1800), ed. Herman Roodenburg and Petrus Cornelis Spierenburg (2004), 159-175. On legal

anthropology in historical studies, see John Jordan, "Rethinking Disputes and Settlements: How

Historians Can Use Legal Anthropology", in Cultures of Conflict Resolution in Early Modern Europe,

ed. Stephen Cummins and Laura Kounine (Farnham, Surrey: Ashgate, 2016), 24-50. 180 Oliel-Grausz, "Dispute Resolution", 247. I use legal anthropology theory to analyse how the

London community’s Tribunal functioned and rely on legal pluralism theories to analyse the

interrelationship between the Tribunal, its users, and the English courts. See Chapter IV, section 2. 181 Teubner, "Two Faces of Janus", 1451. 182 Oliel-Grausz, "Dispute Resolution", 244. 183 Possibly, Oliel-Grausz has these elements in mind when she states at p. 246 that the community

had ‘a normative propensity…to try and encompass or supervise intra Jewish conflicts.’

68

2.3 Conclusion

The Portuguese Jewish communities of Venice and Amsterdam created and

maintained internal judicial arrangements for the resolution of disputes based on

established, traditional halakhic principles. These principles favoured the resolution

of disputes before three Jewish judges who endeavoured to resolve cases

consensually. There was a definite split of jurisdiction between laymen, who were

responsible for hearing civil cases, and rabbis, whose rulings were sought about

religious matters. As to process, both communities settled disputes via mediation,

arbitration, or adjudication. But the external frameworks in which settlements

occurred differed significantly. Venice was prescriptive about the boundaries of

Jewish judicial jurisdiction, dictating in its charters that certain categories of dispute

had to be compulsorily litigated before civil authorities, whereas Amsterdam’s

permissive approach and Jews unrestricted access to the civil courts, one of their

rights of ‘civil inclusion’, entitled them to litigate in Dutch courts at will.184 Venice’s

Jewish communities’ response to compulsion was to adapt Italian arbitration culture

into an internal compulsory process, while in Amsterdam the essentially consensual

nature of arbitration was maintained even though, as a self-ruled church, Jewish

arbitration was ‘embedded in the local court structure and culture of arbitration’.185

Embeddedness had a bilateral framework in which the Jewish judicial space co-

opted the Dutch courts’ enforcement powers to enforce Jewish rulings, when

necessary, and Dutch courts were willing to remit cases to the Jewish judicial space

at the parties’ request. In both cities, the Jewish communities struggled to maintain

the ḥerem as the ultimate enforcement weapon for securing social discipline, and it

became a point of contention for the civil authorities’ control over the boundaries of

Jewish judicial authority. These themes – of a split between lay and rabbinic

authority; settlement by mediation; the role of arbitration; the contested nature of the

ḥerem – are all markers of a transnational Portuguese Jewish legal culture. These

were communities where the combination of different external and internal pressures

facilitated individual litigation choices that did not always conform to normative

184 Sorkin adopts the term ‘civil inclusion’ from Lois Dubois in Lois Dubin, "Subjects into Citizens:

Jewish Autonomy and Inclusion in Early Modern Livorno and Trieste", Jahrbuch des Simon-

Dubnow-Instituts 5 (2006), 51-81. 185 Oliel-Grausz, "Dispute Resolution", 252.

69

communal expectations. ‘Traditional culture is not a uniform and consistent system

of general rules’ writes Kaplan, agreeing with Endelman that there was ‘no uniform

road to immersion in modern culture and the secular state’.186 The story of the

dispute resolution system of the fledgling Portuguese Jewish community in London,

to which I turn in the next chapters, is one which reveals yet another road to

modernity, one where Jewish justice encountered a legal culture that had a unique

degree of openness and toleration. That encounter posed, as we shall discover, a new

challenge which Portuguese Jews had not previously encountered in either Venice or

Amsterdam, the virtual indifference of state authorities to the existence of Jewish

judicial authority, except when the courts began to interfere in Jewish boundaries

between mamon and issur matters in rather unexpected ways.

186 Kaplan, An Alternative Path, 26-27; Endelman, Jews of Georgian England, 6.

70

III. ACCESS TO ENGLISH JUSTICE

1 Menasseh’s plea for judicial autonomy re-examined

Little is known about Menasseh’s plea for judicial autonomy beyond the terms stated

in paragraph 6 (hereinafter ‘the plea’) of his seven-point petition presented to

Cromwell in October 1655.1 Menasseh himself did not explain the detailed judicial

arrangements he envisioned, apart from mentioning in The Humble Addresses the

countries which gave Jews a varying degree of judicial autonomy.2 A few

contemporaneous documents shed some light on the plea and provide some

intriguing clues about Menasseh’s legal-cultural influences and hints about his

familiarity with English legal procedures. To be sure, any insights yielded by these

documents are conjectural rather than definitive indications of Menasseh’s vision for

Jewish justice in London, but nevertheless they advance our understanding of a little-

known area of Anglo-Jewish history.

The plea stated:

‘6. And (to the Intent they may not be troublesome to the Judges of the

Land, touching the Contests and Differences that may arise betwixt those of

our Nation) that your Most Serene Highness will give License to the Head of

the Synagogue, to take with him two Almoners of this Nation to accord and

determine all the Differences and Process, conformable to the Mosaic Law;

with Liberty, nevertheless, to appeal from their Sentence to the Judges; the

Sum wherein the Parties shall be condemned being first deposited.’3

Henry Jessey, one of Menasseh’s most prominent supporters, paraphrased the plea

which read, ‘6. To prevent trouble to our Judges and others, that matters of

differences amongst Jews, may be accorded and determined by the Heads of

1 For the original French text of the petition, see Wolf, Menasseh Ben Israel's Mission, lxxxiii. 2 Menasseh Ben Israel, The Humble Addresses in ibid., 86-89. 3 This English translation is by Henriques, Jews and English Law, 90. The original French text,

reproduced in Wolf, Menasseh Ben Israel's Mission, lxxxiii.. reads: ‘VI : Et pour n’estre point à

charge aux juges peix touchant les contestations et differents qui peuvent arriver entre ceux de nostre

nation que vostre serenissime Altesse donne licence aux chef de la synagogue de prendre avec soy

deux ausmoniers de sa nation pour accorder et juger tous les differents de procez conforme à la loy

Mosayque avec liberté toutefois d’appeler de leur sentence aux juges civils deposant premierement la

somme à laquelle la partye aurait esté condamnée.’

71

Synagogues, and others with them, amongst themselves.’4 In his Short Demurrer,

William Prynne, who opposed readmission, obliquely referred to the plea when he

stated that the Jews intended to ‘set up a Jewish Corporation or Fraternity amongst

us in our Cities and Corporations, distinct and separate from the English, subject to

their own immediate peculiar Officers and Judges, as heretofore.’5 In describing the

restrictions Papal states had imposed on the Jews, Prynne concluded that the Jews

‘should be subject both to the Ecclesiastical & Temporal Courts and Iudges for all

offences properly punishable by them which they should commit.’6 Prynne’s

negative attitude towards Jewish autonomy prevailed because the Whitehall

Conference’s sub-committee concluded that the Jews ‘be not admitted to have any

publicke Judicatoryes, whether civill or ecclesiasticall, which were to grant them

terms beyond the condition of strangers.’7

The plea touched on aspects of the transnational legal culture already discussed in

Chapter II by referencing the type of disputes over which jurisdiction was claimed;

the relevant law to be applied; who was to be appointed as Jewish judges; and the

inter-relationship between Jewish judges and state legal authority. These terms were

to be secured through formal consent, rather than tacit toleration as in Amsterdam.

Whereas the Amsterdam Ascamot of 1639 split legal jurisdiction between the lay

parnassim, who heard ‘demands or disputes’ arising from monetary matters

(mamon), and the rabbis whose opinion was sought about purely religious matters

(issur), Menasseh’s phrases ‘Contests and Differences’ and ‘all Differences and

Process’ asserted a broad jurisdiction over all disputes, civil and religious, and even

by implication criminal matters.8 From a Jewish perspective, there was coherence to

a claim that Jewish judges had a broad jurisdiction over all types of disputes. Such a

4 Henry Jessey, A Narrative of the Late Proceeds at White-Hall Concerning the Jews: Who Had

Desired by R. Manasses an Agent for Them, That They Might Return into England [...] (London:

Printed for L. Chapman, 1656), 12. Jessey (1601-1663) was a nonconformist preacher, who was

familiar with Menasseh’s writings: see Rauschenbach, Judaism for Christians, 165-166. 5 William Prynne, A Short Demurrer to the Jewes Long Discontinued Barred Remitter into England:

Comprising, an Exact Chronological Relation of Their First Admission ... And Their Total, Final

Banishment by Iudgment and Edict of Parliament, out of England, Never to Return Again: Collected

out of the Best Historians and Records, Second ed. (London: Printed for E. Thomas, 1656), 52. Prynne (1600-1669) was a prolific pamphleteer and lawyer. 6 Ibid., 97. 7 Katz, Jews in History of England, 117 n.21, citing State Papers 18/101, fols. 281r-283r. Reproduced

in Henriques, Jews and English Law, 100-102. 8 cf. Roebuck, Arbitration and Mediation, 291. Quoting Gerald Malynes’ treatise Consuetudo, vel,

Lex Mercatoria (1686 ed.) where at Chapter XV Of Arbitrators and their Awards, Malynes refers to

‘questions & controversies arising between Merchants’.

72

claim was not entirely out of step with the jurisdiction of the English civil courts,

which had absorbed the spiritual jurisdiction of the ecclesiastical after they were

abolished in 1646.9 It is possible that this explains why the original French text of

the plea referred to ‘juges civils’ (civil judges) and did not mention an ecclesiastical

jurisdiction. Against this, ‘juges civils’ may simply have signalled a Jewish concern

that appeals to English courts were envisaged from civil matters only because it was

assumed that Jews would have exclusive jurisdiction over religious matters.

The plea was ambiguous in another important respect. Unlike the Rotterdam Charter

of 1610, which explicitly envisaged that judicial power would be vested in merchant

‘consuls’ who were to decide ‘all differences among the members of the nation’, the

plea referred to judicial rulings of the ‘Head of the Synagogue’ (chef de la

synagogue) and ‘two Almoners’ (deux ausmoniers).10 Was Menasseh deliberately

obscuring that the transnational model of Portuguese Jewish justice conferred

ultimate judicial authority on the merchant elite rather than rabbis? Since

Menasseh’s The Humble Addresses had emphasised that judicial autonomy aided the

economic utility of the Jews, a cautious approach to the mercantilist bias in judicial

decision-making seems unlikely. Possibly, these French terms were simply to be

understood as references to lay judicial authority. After all, the English authorities

were likely unaware that laymen did not have the skills to judge disputes according

to ‘Mosaic Law’, a point already conceded in the Amsterdam 1632 litigation

protocol which permitted them to apply the law of merchants instead.11

The plea was clear that Menasseh accepted that he could not entirely prevent

interactions between Jews and the English courts because it acknowledged that Jews

could ‘appeal from their Sentence to the Judges; the Sum wherein the Parties shall be

condemned being first deposited.’ There are several possible interpretations of this

obscure sentence. Firstly, it acknowledged that Jewish judicial authority needed the

assistance of state judicial power to function effectively, a point already accepted in

9 R. B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500-1860, Cambridge Studies in English Legal History (Cambridge: Cambridge University Press, 2006), 78-79. 10 Although unimplemented, the Rotterdam Charter illuminates how Dutch toleration translated into

formal terms of settlement. See Meijer, "Hugo Grotius", 103. Almoners traditionally collected and

distributed alms for the poor, but they also acted as mediators, arbitrators, or adjudicators. See R.A.

Houston, "What Did the Royal Almoner Do in Britain and Ireland, C.1450–1700?", The English

Historical Review CXXV (2010), 279-313: 281, 286. 11 Chapter II, section 2.2.

73

the halakhic framework and in Western-Sephardi transnational legal practice.

Secondly, it signalled to Cromwell that the Jews welcomed the integration of their

courts within the English legal system; they were already familiar with Amsterdam’s

form of ‘embedded justice’, and indeed the reference to ‘condemned’ appears to

allude to the Dutch condemnation procedure which was crucial to embedding Dutch

arbitration process in religious arbitrations.12

Thirdly, and intriguingly, Menasseh may have intended Jewish judicial autonomy to

blend English and Amsterdam legal process relating to arbitration. Arbitrement was

the seventeenth century term English law used to encompass what today we would

separately categorise as mediation and arbitration. It described private settlements of

disputes, as well as publicly ordered arbitration after court litigation had

commenced.13 This distinction between settlements before or after commencement

of litigation, but without formal court trial and judgment, was an important feature of

the English legal landscape in early modern England. Although this period had seen

a rise in litigation, attributed to economic expansion and the growth of credit,

‘[i]nformal means of dispute settlement and local community procedures played just

as important a role in dispute resolution, and in the maintenance of order, as did legal

rules and “law” as enforced by the courts.’14 Disputants who may have been quick to

issue proceedings found there were multiple factors, such as costs and delays, which

persuaded them to settle disputes consensually.15 In rural areas, local arbitrators, who

knew the parties and history of a dispute, made ideal candidates to resolve

‘community-based’ claims, while in urban centres such as London, merchant

arbitrators were appointed to settle commercial claims.16 Local clergy were involved

in dispute resolution as reflected in George Herbert’s description of the role of a

country parson ‘who endures not that any of his flock should go to law; but in any

controversy that they should resort to him as their judge … he never decides it alone,

12 On ‘embedded justice’ and Dutch condemnation procedure see Chapter II, section 2.2. 13 Roebuck, Arbitration and Mediation, 28-42. For a contemporary definition of arbitrement, see

John Cowell, The Interpreter: Or Booke Containing the Signification of Vvords Wherein Is Set Foorth

the True Meaning of All [...]. (Cambridge: Printed by Iohn Legate, 1607). Cited in Muldrew, "Culture

of Reconciliation", 931 n. 66. For court appointed arbitration, see Roebuck, Arbitration and Mediation, 43-77; Margo Todd, "For Eschewing of Trouble and Exorbitant Expense: Arbitration in

the Early Modern British Isles Symposium", J. Disp. Resol. (2016), 7-18. 14 Muldrew, "Culture of Reconciliation", 918. 15 J. A Sharpe, "'Such Disagreement Betwyx Neighbours': Litigation and Human Relations in Early

Modern England", in Disputes and Settlements: Law and Human Relations in the West, ed. John

Bossy (Cambridge: Cambridge University Press, 1983), 167-188: 173. 16 Todd, "For Eschewing of Trouble", 8.

74

but sends for three or four of the ablest of the parish to hear the cause with him,

whom he makes to deliver their opinion first.’17

The plea references arbitration culture in two possible respects. Firstly, the phrase

‘sum being first deposited’ likely refers to the common practice whereby the parties

to an arbitration signed a deed or mutual penal bond in which they promised to pay a

monetary penalty if they failed to arbitrate, to cooperate in the actual arbitration, or

to comply with the terms of the arbitral award. Such failures gave the aggrieved

party the right to sue on the bond alone even where the amount pledged in the bond

as a penalty exceeded the actual sum in dispute between the parties.18

Secondly, the rejection of the plea by the Whitehall sub-committee, as recorded by

Henry Jessey, referred to the Jews not being permitted ‘publicke Judicatoryes,

whether civill or ecclesiasticall.’ ‘Publicke’ adds nothing in this context, except to

distinguish between litigation in the public courts as opposed to private, consensual

process by arbitrement. Like any other subject of the king, the Jews were to be free

consensually to resolve their disputes however they pleased but were prohibited from

establishing their own exclusive courts to rival the public courts of the realm. Thus,

Jewish justice could be practiced within the confines of the law of arbitrement,

which fitted neatly with the transnational legal culture that Menasseh wished to

establish in England.

2 The ‘condition of strangers’

While there was a ‘statutory vacuum’ (as Endelman argues) created by the absence

of a formal charter of privilege or other legislation post-readmission,19 the phrase the

‘condition of strangers’ implicated that the English law of personal status was

intended to govern the status of the Jews.20 By the mid-seventeenth century, the

17 Quoted by Roebuck, Arbitration and Mediation, 151-152. For the original, see George Herbert, A

Priest to the Temple, or, the Country Parson His Character, and Rule of Holy Life [...] (London: T. Maxey for T. Garthwait, at the little north door of St Paul's, 1652), 94-95. 18 See Roebuck, Arbitration and Mediation, 387-390. 19 Todd M. Endelman, The Jews of Britain, 1656 to 2000, Jewish Communities in the Modern World

(Berkeley: University of California Press, 2002), 35-36. 20 On the legal status of the Jews, see Henriques, Jews and English Law; Wolf, "Status of the Jews

after the Re-Settlement", 189-193; R. A. Routledge, "The Legal Status of the Jews in England 1190-

1790", J. Legal Hist. 3 (1982), 91-124; James S. Shapiro, Shakespeare and the Jews (New York:

75

term ‘stranger’ was used interchangeably with the term ‘alien’ to describe people

from aboard.21 Confusingly, ‘foreigner’ denoted ‘a newcomer to the town, [who]

possessed limited rights.’22 English migrants were treated as foreigners outside their

place of birth and were denied full civic, political and economic rights in their

adopted city.23

The legal framework of alien status already existed in mid-seventeenth century

London, where Dutch and French Protestants faced legal disabilities relating to

residence, trading rights, and taxation. Although they were required to lodge with

freemen of the City of London, many rented separate dwellings. They could not

engage in direct retail trade, and both they and their sons faced higher tax duties on

the movement in and out of the City of goods they traded wholesale. They were

excluded from civic life because they could not join guilds, though some wealthy

individuals became freemen of the City after denization.24 Disabilities affected the

next generation, as the children of aliens could not inherit land, nor could denizens

bequeath land to their children before the date of denization.25 Sons of aliens, who

were born in London, still had to pay City of London taxes and customs at the higher

alien rate.26 Although an alien or denizen living in London could sue in the English

courts to protect his personal property rights, the French Protestant Church

encouraged its members to refrain from using the civil courts because it exposed co-

religionists to the risk of imprisonment.27

Columbia University Press, 1996), 189-193. On arguments that Jews should be readmitted to England

because of a Christian duty to harbour persecuted ‘strangers’, see Glaser, Judaism without Jews, 114-

119. 21 Jacob Selwood, Diversity and Difference in Early Modern London, Reprint ed. (Routledge:

London, 2016), 3. All Selwood citations are in the reprint edition. 22 Nigel Goose and Lien Luu, Immigrants in Tudor and Early Stuart England (Brighton: Sussex

Academic Press, 2005), 61. 23 Selwood, Diversity and Difference, 14, 66. 24 Ibid., 19-50; Laura Hunt Yungblut, Strangers Settled Here Amongst Us: Policies, Perceptions and

the Presence of Aliens of Elizabethan England (London: Routledge, 1996). On denization and

naturalisation, see J. M. Ross, "Naturalisation of Jews in England", Transactions & Miscellanies

(Jewish Historical Society of England) 24 (1970), 59-72. 25 The solution to these problems was naturalization by Act of Parliament but this was an even more

expensive process that obtaining letters of denization. Jews born abroad favoured denization because

naturalization was available only to Anglicans who swore the oath of adjuration. See Norma Perry, "Anglo-Jewry, the Law, Religious Conviction, and Self-Interest (1655-1753)", Journal of European

Studies 14 (1984), 1-23. 26 Selwood, Diversity and Difference, 105. cf. the 1689 clamour for special taxation of Jews: H. S. Q.

Henriques, "Proposals for Special Taxation of the Jews after the Revolution. Presidential Address

(1918)", Transactions (Jewish Historical Society of England) 9 (1918), 39-52. 27 Eileen Barrett, "Huguenot Integration in Late 17th-and-18th Century London: Insights from

Records of the French Church and Some Relief Agencies", in From Strangers to Citizens: The

76

The question on readmission of the Jews was whether the Jews would face

restrictions beyond those already applicable to Christian aliens. The answer to that

question lay in Calvin’s Case of 1608, a test case to decide England’s law of

citizenship after James VI of Scotland acceded to the English throne as James I of

England in 1603. In 1608, James I’s advisers arranged for a landed estate in England

to be conveyed to a Scottish child, Robert Calvin, who had been born after 1603.

When the land was forcibly possessed, Calvin’s guardians issued proceedings in the

English courts to recover the land. As anticipated, the defendant pleaded that Calvin

was ‘an alien born…within the allegiance of the [king of Scotland], and out of the

allegiance of the [king of England].’28 This plea of alienage entitled the defendant to

move for abatement of Calvin’s writ and the dismissal of Calvin’s action. In the

event, England’s full complement of fourteen judges decided that Calvin was a

subject-born despite his birth in Scotland and was therefore entitled to full

citizenship rights in England, which included protecting his property by litigating in

the English courts.

Personal status, from this point onwards, was firmly grounded in the legal distinction

between a natural-born subject and aliens, which was crucial to the right of access to

the king’s courts. Aliens born out of ligeance did not have equal rights of access to

the king’s courts and his protection as natural-born subjects of the king.29 The

division between subjects-born and aliens was an immutable principle of natural law

‘grounded upon reason’, the effect of which was to transmute ligeance to the king

into a bond of faith.30 Faith was, according to Edward Coke, who delivered the most

influential of the judgments in Calvin’s Case, a fatal stumbling block to Jews being

treated like any other Christian alien.31 Lord Coke divided aliens into three sub-

categories: firstly, alien friends from Christian countries with which England was at

Integration of Immigrant Communities in Britain, Ireland and Colonial America, 1550-1750, ed.

Randolph Vigne and Charles Littleton (Brighton: Sussex Academic Press; Huguenot Society of Great

Britain and Ireland, 2001), 375-382: 376. 28 Calvin’s Case (1608) 7. Co. Rep. 1a; 77 Eng. Rep. 377 at 378. For analysis of the case in its

historical and legal context, see Bruce Galloway, The Union of England and Scotland, 1603-1608

(Edinburgh: John Donald Publishers Ltd, 1986), 148-157; Kim, Aliens in Medieval Law, 176-199. From a Jewish perspective, see Henriques, Jews and English Law, 185-191. 29 Kim, Aliens in Medieval Law. 30 Ibid., 178. 31 For ‘alien’ as a term to deny Jews full citizenship rights on the basis that they were a separate

people, even into the nineteenth century: see Endelman, Jews of Georgian England, 93. For English

law’s imposition on the Jews of a Christianised idea of professing ‘faith’ to the present day, see

Herman, An Unfortunate Coincidence.

77

peace; secondly, temporary alien enemies, who found themselves in England when it

was temporarily at war with their native Christian country and, thirdly, perpetual

enemy aliens, who were infidels and subjects of the devil with whom Christians

were in a state of perpetual hostility.32

According to Lord Coke, the right of access to the English courts depended on an

alien’s status under this categorisation. Friendly aliens could protect their personal

property rights in the English courts, but they lost that right if during war their status

changed to an alien enemy. However, both in peacetime and wartime, perpetual

infidel aliens were barred from using the courts to protect their legal rights. If Lord

Coke’s dicta were to be followed, no Jew from abroad could seek a legal remedy in

the English courts.

When war broke out between England and Spain in 1656, an opportunity arose to

test Lord Coke’s dictum, but it was not taken. City of London merchant William

Coxetar took advantage of the government’s proclamation that the goods of all

Spaniards should be seized to accuse Antonio Rodrigues Robles of being a

Spaniard.33 By 1656, Robles, a Portuguese converso merchant who had been living

in London since 1648, was one of the leaders of London’s tiny (still hidden) crypto-

Jewish community. Now an enemy alien, Robles’s goods were seized.34 To recover

his property, Robles petitioned the Council of State where he disclosed his real

identity as a Jew from Portugal whose family had fled Spain in 1492. Despite

suggesting that Robles was ‘either no Jew or one that walks under loose principles’,

the Council of State accepted Robles’s declaration that he was a Jew and released his

goods.35

The alienage plea was not deployed against Robles because his predicament had

been resolved by petitioning the king directly, who used his prerogative powers to

secure the release of Robles’ goods. As Jacob Selwood has observed, French,

Dutch, and Jewish merchants used the petition procedure direct to the king to exploit

attitudinal differences between the government and the City of London merchants

32 Calvin’s Case (1608) 7. Co. Rep. 1a; 77 Eng. Rep. 377 at 397. 33 Shapiro, Shakespeare and the Jews, 190. Cited in Selwood, Diversity and Difference, 142 n. 73. 34 Katz, Philo-Semitism, 235-238; Selwood, Diversity and Difference, 141-148. For Robles’

biographical history after 1656, see Edgar Samuel, "Antonio Rodrigues Robles, c. 1620-1688",

Jewish Historical Studies 37 (2001), 113-115. 35 Selwood, Diversity and Difference, 146.

78

towards immigration and aliens.36 Petitioning the king also gave opponents of the

Jews an opportunity to attack the entire Jewish community and to circumvent civil

court procedure that required precisely pleaded actions against individual Jews. City

merchants petitioned the king in November 1660; Thomas Violet did so in January

1661, and the Lord Mayor and Alderman of London did so in in 1662, all of whom

the king ignored.37 When the Earl of Berkshire and Paul Rycaut attempted to use the

Conventicle Act of 1664 to blackmail the community into paying protection money

to avoid prosecution under that Act, the Jews responded with their own petition, after

which Charles II gave the community security to live unmolested so long as they did

so peaceably.38

Changing tactics, the opponents of Jewish readmission turned to the courts to issue

proceedings against named individual Jews. Proceedings were issued in 1673 in the

City of London Quarter Sessions, alleging riot by gathering to worship in the

synagogue and in the King’s Bench in 1685 under the recusancy laws.39 On both

occasions the tactic failed after the king put a stop to the litigation. With James II’s

1685 Declaration of Indulgence that the Jews ‘quietly enjoy the free exercise of the

Religion, whilst they behave themselves dutifully and obediently to his

Government’, these types of legal proceedings ceased.40

This history exposes that the plea of alienage was not a live legal issue until

individual Jews as plaintiffs sought to protect their personal rights in the English

courts, for it was then that defendants could rely on the plea as a defence in these

proceedings.

36 Ibid., 115-120. 37 Katz, Jews in History of England, 140-144; Endelman, Jews of Britain, 27-28; Selwood, Diversity and Difference, 150-154; Ariel Hessayon, ""The Great Trappaner of England": Thomas Violet, Jews

and Crypto-Jews During the English Revolution and at the Restoration", in The Experience of

Revolution in Stuart Britain and Ireland: Essays for John Morrill, ed. Michael J. Braddick and David

L. Smith (Cambridge: Cambridge University Press, 2011), 210-230. 38 Katz, Jews in History of England, 142. 39 Ibid., 143, 149. 40 Ibid., 150.

79

3 The demise of ‘perpetual alien’ status in civil law

After the expulsion of the Jews from England in 1290, English legal discourse used

Jews as a way of discussing and evolving the boundaries of English law.41 Calvin’s

Case is a classic example where the boundaries of the law of alienage were set by the

example of the infidel Jew who was outside the bond of faith with the crown and

could not seek the king’s protection in his courts. Being denied access to the king’s

court no doubt would have been deeply troubling to the Portuguese merchants who

had experienced Amsterdam’s tolerant legal culture and who understood that

litigation was occasionally vital to protect their commercial interests.

Interestingly, entrenched legal attitudes towards Jews first impacted non-Jewish

litigants, who wished to rely on the witness testimony of Jews. In Robeley v

Langston (1667), a judge in the King’s Bench permitted Jewish witnesses to swear

an oath on the Old Testament, which ensured that they could be tried for perjury if

they gave false testimony.42 The Court of Chancery adopted the same approach when

it permitted Jewish witnesses to swear an oath on the Pentateuch alone.43 When a

Jewish witness refused to give evidence in a case listed on a Saturday, a court

permitted the trial to be moved from London to Middlesex.44 However, Charles

Molloy’s treatise on maritime law mentions that a court refused to accept as truthful

the witness testimony of a Portuguese converso, Domingeo de la Cartre, because his

renunciation of Christianity meant that he could ‘never be believed [and] therefore

he cannot be a witness.’45

41 Jonathan A. Bush, "You're Gonna Miss Me When I'm Gone: Early Modern Common Law

Discourse and the Case of the Jews", Wis. L. Rev. (1993), 1225-1286. 42 Robeley v Langston (1667) 2 Keble 315; 84 Eng. Rep. 196. On Jewish witness issues generally, see

Henriques, Jews and English Law, 178-185. 43 Anonimous (1684) 1 Vern. 264; 23 Eng. Rep. 459. See also Omychund v Barker (1744), 1 Atk. 22;

26 Eng. Rep. 15 that the testimony of non-Christian witnesses who were not atheists and who swore a

non-Christian oath was admissible in English courts. 44 Barker v Warren (1677) 2 Mod. 270; 86 Eng. Rep. 1066. Amsterdam’s courts permitted Jews to

avoid attending court on the Jewish Sabbath from 1659: see Swetschinski, Reluctant Cosmopolitans,

215. The Haarlem and Rotterdam Charters exempted Jews from appearing in civil courts on the Sabbath and holidays: see Meijer, "Hugo Grotius", 100. 45 Robles v Langston, Hill 17, 18 Car 2 is the citation in Charles Molloy, De Jure Maritimo Et Navali,

or, a Treatise of Affairs Maritime and of Commerce in Three Books (London: Printed for John

Bellinger, George Dawes and Robert Boulter, 1676), 419. It is unclear whether Robles v Langston is

the same case as Robeley v Langston. The point is not mentioned in the lengthy analysis of Molloy’s

treatise in Bush, "You're Gonna Miss Me". According to Samuel, a Domingo de la Cerda was

Robles’ nephew: see Samuel, "Robles", 113.

80

As important as these developments were, they all benefited non-Jewish litigants

rather than Jews suing on their own behalf. Although the threat of a plea of alienage

remained a live issue for any Jew venturing before the English courts as plaintiff, in

the early decades after readmission, Jews did appear as litigants in the English courts

without the plea being raised. In 1680, a Jewish mother from Delft brought an action

for debt in the City of London courts against her daughter Eva Cohan, who had

eloped with a Dutch Protestant, to pressurise her daughter to return to Holland.46 In

1685, two endenized Jews issued writs against Samuel Haynes, a Falmouth customs

officer, who had accused them of evading customs duties.47 Since endenized Jews

had the same status as subjects-born for the purposes of legal action, they could not

be met by a plea of alienage.

The first reported case against a Jewish plaintiff in which a defendant pleaded

alienage was a debt action in 1684, first mentioned in Lilly’s Practical Register of

1719.48 Judge Jeffries ruled that a ‘Jew may recover as well as a Villein, and the

Plea is but in Disability so long as the King shall prohibit them to trade’.49 Henriques

argues that the ruling was based on the ‘king’s right to treat [Jews] as villeins’,

which grounded the decision on medieval law’s distinctions between the free and

unfree, concepts which had receded from English law by the seventeenth century.50

In his defence of the ill-fated 1753 Jew Bill, Philip Carteret Webb (who was the

long-standing solicitor to the Sephardi community) pointed out that the judge’s

reasoning was influenced by the fact that the debt action was heard at the same time

as one of the most important commercial cases of the late seventeenth century, East-

India Company v Sandys (1683-1685; ‘Sandys Case’).51 Sandys Case concerned

46 Gilbert Burnet, The Conversion & Persecutions of Eve Cohan, Now Called Elizabeth Verboon, a

Person of Quality of the Jewish Religion. Baptized the 10th of October, 1680, at St. Martins in the

Fields, by the Right Reverend Father in God, William, Lord Bishop of St. Asaph London (London:

Printed by J.D. for Richard Chiswell, 1680); Tirtsah Levie Bernfeld, "A Sephardic Saga in the Dutch

Republic: The Cohen Pallache Women on Love, Religion, and Social Standing", in Religious

Changes and Cultural Transformations in the Early Modern Western Sephardic Communities, ed.

Yosef Kaplan (Leiden: Brill, 2019); Hyamson, Sephardim, 56. 47 Katz, Jews in History of England, 147. 48 John Lilly, The Practical Register or, a General Abridgment of the Law, as It Is Now Practised in

the Several Courts of Chancery, King's Bench, Common Pleas and Exchequer, Together with All the Modern Rules of Court Brought Down to 1719 (London: Printed by Eliz. Nutt, and R. Gosling,

assigns of Edw. Sayer, Esq for Tho. Ward, W. Mears, and F. Clay and J. Hooke, 1719), 4. 49 Ibid. 50 Henriques, Jews and English Law, 188-189. For arguments against Jews as villeins, see Routledge,

"Legal Status". On villeins generally, see Baker, Introduction, 501-506. 51 Philip Carteret Webb, The Question, Whether a Jew, Born within the British Dominions, Was

before the Making the Late Act of Parliament, a Person Capable, by Law, to Purchase and Hold

81

whether the East India’s royal patent gave the company a monopoly over trade with

the Indies that prevented Sandys from also trading in India, and directly concerned

the ambit of the king’s prerogative power.52

Once again, according to Jonathan Bush, lawyers used a comparison between

perpetual alien Jews and infidel Indians to test the boundaries of English law, this

time to explore the legal implications of England’s expanding empire and its

encounter with new lands, peoples, and religions.53 Sandys counsels’ arguments

indicate that there had been important ideological shifts in contemporary legal

attitudes towards expressing difference between peoples on the grounds of religious

belief. Firstly, the commercial realities of domestic and international trading could

no longer sustain English law denying to non-Christians legal remedies ordinarily

available to Christian merchants. Sandys’s counsel, Treby, said that a ‘Pagan, Turk

or Jew’ had the right to litigate in English courts because ‘were it otherwise, there

could be no trading of the Jews here, nor of the Turks’.54 Moreover, argued Sandys’s

second counsel Pollixfen, if the Jews were perpetual enemies, the consequence

would be naked exploitation for ‘whoever owes a Jew any thing may play the Jew

with him, never pay him; whoever has a mind to any thing he has, may take it away

from him; if he has a mind to beat him, and knock him on the head, he may, there is

no protection for him, nor peace with him.’55 Secondly, English law’s increasing

appeal to natural law as a precedent for fundamental principles of justice dictated

that particular religious beliefs should be left out of the law of personal status. Treby

stated that ‘this notion of Christians not to have commerce with Infidels is a conceit

Lands to Him, and His Heirs, Fairly Stated and Considered. By a Gentleman of Lincoln's Inn

(London: Printed for J. Roberts, in Warwick-lane, 1753), 41. On the 1753 Naturalization Act (the

‘Jew Bill’), see Thomas W. Perry, Public Opinion, Propaganda, and Politics in Eighteenth-Century

England: A Study of the Jew Bill of 1753 (Cambridge, Massachusetts: Harvard University Press,

1962); Katz, Jews in History of England, 240-253; Dana Rabin, "The Jew Bill of 1753: Masculinity,

Virility, and the Nation", Eighteenth-Century Studies 39 (2006), 157-171; Avinoam Yuval-Naeh,

"The 1753 Jewish Naturalization Bill and the Polemic over Credit", Journal of British Studies 57

(2018), 467-492; Andrew Crome, "The 1753 ‘Jew Bill’ Controversy: Jewish Restoration to Palestine,

Biblical Prophecy, and English National Identity", The English Historical Review 130 (2015), 1449-

1478. 52 The Great Case of Monopolies, East India Company v Sandys (1683 to 1685) in Complete

Collection of State-Trials and Proceedings for High Treason, and Other Crimes and Misdemeanours:

From the Reign of King Richard II to the End of the Reign of King George I, vol. 7 (London: Printed

for J. Walthoe Sen., R. Vincent Sen., J. and J. Knapton [...] and 38 others, 1735), 493-570. 53 Bush, "You're Gonna Miss Me", 1260-1264. 54 Sandys Case at 501. 55 Ibid. at 524.

82

absurd, monkish, phantastical and phanatical… the Indians have a right to trade here,

and we there, and this is a right natural and human, which the Christian faith doth

not alter.’56 In similar vein, Pollexfen concluded that ‘religion too often has been

made a cloak and veil for other ends and purposes. It should not be so, and I hope

will not be so used in this case.’57

In Wells v Williams (1697), the court stated that ‘the necessity of trade [had]

mollified the too rigorous rules of the old law’ and that ‘commerce [had] taught the

world more humanity’ towards the Jews, who had come to England by licence of the

king, were under his protection and accordingly were entitled to sue for a debt under

a bond. The perpetual alien doctrine, at least in so far as it had been applied to Turks

and infidels, had been in error.58 By the end of the seventeenth century, the law of

personal status treated Jews no differently from other Christian aliens in relation to

maintaining an action in the English courts. Judicial hostility to Jews, exemplified by

the perpetual alien category, had receded in the face of real Jews entering the public

space of the English courts. Although vestiges of perpetual enemy discourse

rumbled on into the eighteenth century, Coke’s dictum was finally dismissed from

legal discourse in 1744 as being a ‘narrow notion’, and ‘contrary to religion,

common sense, and common humanity’.59

4 The reception of the Jews in the ecclesiastical courts

Once Jews had litigated in the English civil courts and had overcome the procedural

bar of the alienage plea, it was the English ecclesiastical courts that next confronted

legal questions which touched on the issue of whether to deny individual Jews

remedies available to other subjects.60 It is beyond the scope of this thesis to review

this legal history which has been discussed elsewhere at length.61 Instead, the

remainder of this chapter focuses on the few reported cases in which Sephardim

56 Ibid. at 502. 57 Ibid. at 524. 58 Wells v Williams (1697) 1 Lord Raymond 282; 91 Eng. Rep. 1086 and 1 Salkeld 46; 91 Eng. Rep.

45. 59 Omychund v Barker (1744), 1 Atk. 45; 26 Eng. Rep. 15 at 30. 60 Chapter V discusses ecclesiastical court litigation in detail. 61 Henriques, Jews and English Law; "Jewish Marriages and the English Law", The Jewish Quarterly

Review 20 (1908), 391-449.

83

were litigants to illuminate how the ecclesiastical courts outlined the boundaries of

their jurisdiction over Jewish legal disputes in the realm of issur matters.

Sephardim were on a level playing field with Christian subjects when they were

protecting their personal interests in the civil courts, but when their claims strayed

into matters which challenged the primacy of Christianity as the law of the land,

existing legal principles trumped individual interests. This point emerged from the

inheritance case of Da Costa v De Pas of 1754, where the court ruled that a bequest

for the maintenance of a Yeshiva and the teaching of the Jewish religion failed

because English law only recognised religious bequests if they promoted the

established religion of the Church of England.62 By the time the court heard the De

Pas case, the community had become accustomed to the administration of wills by

the ecclesiastical court and litigation about inheritance matters was not unheard of.63

However, as Endelman points out, whereas ambiguities surrounding Jewish

privileges were exploitable outside the public gaze, as soon as Jews entered the

public space, as the residuary legatees did in the De Pas case by challenging the

terms of the testator’s will, they exposed fault lines in English law that

disadvantaged Jews.64

While Sephardim became accustomed to litigating the financial aspects of

inheritance disputes in ecclesiastical courts, it was quite another matter to litigate

disputes over which halakhah unquestionably claimed exclusive jurisdiction. During

the eighteenth century, several Sephardim litigated in the ecclesiastical courts about

religious matters pertaining to personal status on marriage and divorce, which

traditionally had been resolved within the London community. We know from the

earliest case, Da Costa v Villa Real (1733; the ‘Villa Real’ case), that such litigation

crossed the boundaries of acceptable conduct within the Sephardi community. After

Jacob da Costa commenced his espousal action against Kitty Villa Real in the Court

62 Da Costa v De Pas (1753) Amb. 228; 27 Eng. Rep. 150. In 1786, a gift to an Ashkenazi synagogue

failed for the same reason: Isaac v Gompertz noted ibid., 151. For the unsatisfactory reporting history

of the De Pas case, see Omychund v Barker (1798) 26 Eng. Rep. 15:19. 63 Diamond, "Problems of the London Sephardi Community", 46-49. 64 Endelman, Jews of Georgian England, 112. See also, Hyamson, Sephardim, 126. Generally, if

residuary legatees proved that a bequest failed, the funds returned to the estate. The court applied an

alternative rule to divert the bequest to other charitable purposes, to fund a preacher who taught

children cared for at the Foundling Hospital, the will having elsewhere made provision for the benefit

the hospital. See Norman Bentwich, "Anglo-Jewish Causes Célèbres: Leading Cases in the English

Courts from the Beginning of the Eighteenth Century: The Lady Magnus Memorial Lecture",

Transactions (Jewish Historical Society of England) 15 (1939), 93-120: 117-118.

84

of Arches, Kitty’s aunt wrote: “I cannot see there is any need of making a public

business of it; especially, by a way so indecent, and till now, so unknown in our

Nation.”65

At the time, it was still a novel proposition for a Jew to seek a legal remedy in the

Christian ecclesiastical courts where canon law governed the resolution of disputes.66

A legal objection was made that this was an ‘Irregular Application, because the case

was between persons of a different Religion’ whose marriage could not be

solemnised in a Church, but the judge, Dr. Bettesworth, dismissed it, ruling that he

knew ‘not where else Persons could have any Remedy except here.’67 Five years

after the Villa Real case, the ecclesiastical court admitted the claim of a Jewish

woman who sued her husband for restoration of conjugal rights.68 In 1794, the

ecclesiastical courts returned to the jurisdictional issue but, as the parties in the case

came to an agreement, it was unnecessary to decide it.69 In D’Aguilar (Lady) v

D’Aguilar (Baron) in 1794, the court admitted Lady D’Aguilar’s claim for a judicial

separation from her husband of twenty years on the grounds of cruelty and adultery.

Sir William Scott stated in his judgment that he had ‘no doubt that the suit may be

entertained’ and that Jews ‘[were] as much entitled to the justice of the country as

any others’. Jews had the ‘same rights of succession to property, and of

administration, as other subjects’ and the ‘same mode of securing the legitimacy of

their children’, which rights could only be secured if they had the ‘same rights of

divorce’ secured by claims made to the ecclesiastical courts.70 Sir William Wynne,

the appeal judge at the Court of Arches, Canterbury in the subsequent case of Lindo

v Belisario (1796; the ‘Lindo’ case) also used the language of civil rights, stating that

65 Quoted in Todd M. Endelman, Radical Assimilation in English Jewish History, 1656-1945

(Bloomington: Indiana University Press, 1990), 16. Reproduced in The Proceedings at Large in the

Arches Court of Canterbury: Between Mr. Jacob Mendes Da Costa, and Mrs. Catherine Da Costa

Villa Real, ... Relating to a Marriage Contract, ([London]: [s.n.], 1734), 177. See also M. J. Landa,

"Kitty Villareal, the Da Costas and Samson Gideon", Transactions (Jewish Historical Society of

England) 13 (1932), 271-291; Katz, Jews in History of England, 223-230. 66 For detailed facts of the Villa Real case, see Chapter V, section 2.2. 67 Proceedings at Large, 329-330. 68 Andreas v Andreas (1737). Unreported but noted on appeal in Lindo v Belisario (1796), 1 Hag.

Con. (App) 7; 161 Eng. Rep. 636 at 638. See also Henriques, "Jewish Marriages", 398-399; James

Picciotto and I. Finestein, Sketches of Anglo-Jewish History ... Revised and Edited, with a Prologue,

Notes and an Epilogue, by Israel Finestein, Etc (London: Soncino Press, 1956), 98-99, 457. 69Vigevena and Silveira v Alvarez (1794). Unreported but mentioned in Sir William Wynne’s

judgment in Lindo v Belisario, 1 Hag. Con. (App) 7; 161 Eng. Rep. 636 at 637. 70 D’Aguilar (Lady) v D’Aguilar (Baron) (1794), 1 Hagg. Ecc. 772; 162 Eng. Rep. 748.

85

the ‘Jews are entitled to civil rights of every kind, and particularly those of

marriage.’71

Before the Lindo case, canon law principles were relied on to advance the parties’

substantive claims, and it had not occurred to the ecclesiastical courts that a Jewish

court might be a more appropriate venue for deciding legal issues affecting the

personal status of Jews. However, the factual matrix in the Lindo case explicitly

rested on halakhic principles that governed the Jewish rites of marriage between a

Jewish couple. I consider these halakhic aspects in detail in Chapter V and

concentrate here on the broader issue of the appropriate forum to decide such

matters.72

The Lindo case concerned whether the clandestine marriage of a young heiress,

Esther Lindo, to Aaron Mendes Belisario had fulfilled the halakhic criteria for the

creation of a binding Jewish marriage. The couple had purported to perform a

halakhically compliant kiddushin before two Jewish witnesses, in which the groom

gave the bride a ring and pronounced the formal declaration that he consecrated

Esther to be his bride according to the law of Moses.73 After the ceremony, the

couple parted, and their relationship remained unconsummated. The halakhic

validity of this ceremony came before the Portuguese Bet Din (the ‘Bet Din’) who

ruled that it was a doubtful betrothal only, the legal effect of which, according to

halakhic principles, was to create a betrothal relationship that could only be

dissolved by Aaron giving Esther a formal Jewish divorce (get) before she could

marry another man. This Aaron refused to do, insisting that the ceremony constituted

a binding marriage in Jewish law which the ecclesiastical court should recognise as

binding in English law.74 This was the factual and halakhic background that came

before Sir William Scott, the first instance judge in the Consistory Court of London.

For the first time, an English court became aware that the London community had a

functioning bet din that decided issues of Jewish law independently of state

71 Lindo v Belisario (1796) 161 Eng. Rep. 636: 638. For history, procedure and records of the Court of

Arches, see Melanie Barber, "Records of the Court of Arches in Lambeth Palace Library",

Ecclesiastical Law Journal 3 (1993), 10-19. 72 See Chapter V, section 2.2.2. 73 Ibid. 74 Lindo v Belisario (1795) 161 Eng. Rep. 530: 531

86

involvement or authority. Two issues arose in relation to the Bet Din: firstly, was the

Bet Din more competent to decide cases involving Jewish law than the Christian

court? and, secondly, whether greater weight ought to be given to the Bet Din’s

opinion than to individual halakhic experts.

Addressing the jurisdiction question, Sir William Scott expressed grave doubts

whether he would have heard the case had it not been referred to the court by the

Lord Chancellor, after Esther Lindo’s guardian applied at the Court of Chancery for

a guardianship order to prevent Belisario from seeing Esther. The Lord Chancellor

directed that the Consistory Court consider the issue whether Esther was validly

married to Belisario.75 While Sir William Scott conceded that the ecclesiastical

courts had ‘undoubted jurisdiction upon the general law of marriage’ over marriage

disputes governed by the law of England,76 this marriage was one between ‘persons

governed by a peculiar law of their own…administered, to a certain degree, by a

jurisdiction established among themselves – a jurisdiction competent to decide upon

questions of this nature with peculiar advantage, and with sufficient authority.’77

However convenient it might have been for the judge to remit the case to a bet din,

he accepted that he lacked the power to do so, given the Lord Chancellor’s express

direction.78 Since the jurisdiction of batei din was not a legal question that the

Consistory Court had been asked to decide, Sir William Scott’s remarks did not

denote that a bet din, rather than the Consistory Court, was the most appropriate and

competent court to hear marriage disputes between Jews.

As to the competency of the Consistory Court to hear the case, ecclesiastical courts

readily understood foreign law when it was based on Christian legal principles, but

Jewish law was unfamiliar, which risked misunderstanding or misapplying halakhic

principles to the facts before the court.79 Sir William Scott had such difficulty

reconciling the five experts’ opinions that he adjourned the case for each side’s

75 LPL, Arches D 146, microfiche 730: 145, Chancery Court Order dated 4 November 1793;

LMA/DL/C/0562/192. 76 Lindo, 161 Eng. Rep. 530. 77 Ibid., 530-531. cf. Lindo, 161 Eng. Rep. 636 at 642, where Sir William Wynne acknowledged that

‘among the Jews’ the Bet Din was the ‘highest authority in ecclesiastical cases’. 78 Lindo, 161 Eng. Rep. 530 at 531. 79 Ibid. See also Lindo, 161 Eng. Rep. 636 at 639 where Sir William Wynne reasoned that the

Christian courts knew the law to be applied in relation to Christian marriages but had ‘no power upon

[the law of the Jews] but by analogy’. See further Chapter V, section 2.2.2.

87

experts to answer a list of questions he himself drafted. Only after he received the

answers did he fully understand the halakhic implications of the Bet Din’s original

ruling of doubtful kiddushin. Having satisfied himself that he now had all the

relevant halakhic principles available to him, he proceeded to weigh up the

competing explanations of the two sides. At this point in his judgment, Sir William

Scott strongly stated that ‘the balance of the authority must incline’ towards the

opinion of the Bet Din, who by now had submitted a joint opinion. This was a

‘judicial opinion’, to be treated as ‘authoritative’ because the Bet Din had been

‘entrusted’ by the Portuguese community to provide judicial rulings and were bound

to give their opinion ‘conscientiously’. If, as the judge, he was to decide the case ‘on

principles different from the established authorities amongst the Jew, as now

certified, [he] should be unhinging every institution…in opposition to those who

possess a more natural right to determine on questions of this kind.’80

The outcome of the Lindo case should not be overstated. It established that, by the

late eighteenth century, the ecclesiastical courts accepted that Jews had the civil right

to litigate marriage issues in the ecclesiastical court. Those disputes would be

decided by canon law, except where cases turned on halakhic questions, in which

case the court would consider the applicable halakhic principles, as a matter of

foreign law, to be proved by expert evidence. Batei din opinions as to the halakhic

principles would be treated as authoritative if there was a conflict of evidence

between the parties.81

Sir William Wynne also clarified in his appeal judgment that the enforcement

powers of the ecclesiastical courts were not available to Jews who found themselves

without an enforceable remedy in Jewish law. As I explain in Chapter V, the law of

kiddushin entitled a groom in Belisario’s position to insist that his bride proceed with

the second stage of the Jewish marriage rites, nissu’in or ḥuppah.82 Only at that

point, the ecclesiastical court ruled, would Belisario be entitled to demand the same

rights as a Christian husband, conjugal relations with his wife and authority over her

80 Lindo, 161 Eng. Rep. 530 at 545-546. 81 See Picciotto and Finestein, Sketches, 101-103. cf. Katz, Jews in History of England, 320. I

disagree with Katz’s interpretation that the courts ‘upheld’ the ‘power of the Jews to manage their

own affairs’. 82 Chapter V, section 2.2.2.

88

property. Sir William Wynne refused to countenance the ecclesiastical court forcing

Esther to complete these formal Jewish marriage rites to confer civil marriage rights

on Belisario: ‘It would be strange indeed for the Ecclesiastical Court to be carrying

into execution a marriage between two Jews.’83 His statement acknowledged a

pluralistic co-existence of state ecclesiastical law and a halakhic framework in which

Jews created binding marital bonds. But it also revealed the limitations of pluralism

where, unlike Amsterdam’s system of ‘embedded justice’, ecclesiastical courts

neither recognised nor were prepared to enforce Jewish judicial rulings.

Consequently, compliance with halakhah depended upon individual Jews voluntarily

submitting to the authority of Jewish courts and the halakhic framework governing

Jewish marriage. Without access to the coercive power of state courts, the space for

effective Jewish justice was extremely narrow.

The London community envisioned the authority of their Jewish judicial space quite

differently. Their reality accorded more closely with the description in the Lindo

interrogatories that batei din were ‘the sole Judges to whom all questions relative to

the validity of marriages between Jews are constantly submitted’.84 For, as we shall

see in Chapter V, the Livros show that litigating about marital issues in the

ecclesiastical courts was an exceptional procedural choice adopted by a tiny, wealthy

minority, who were able and willing to fund protracted complex litigation to obtain

their desired remedy.85 Moreover, marital issues were a smaller proportion of

disputes among congregants, where financial matters, such as debt collection,

predominated. Like the Amsterdam community, the London community claimed

jurisdiction over financial disputes and expected its congregants to use its procedures

to resolve them before the Tribunal. Given that Jews had general unrestricted access

to the civil courts, one might have expected the existence of the Tribunal’s

jurisdiction would have been mentioned in the civil courts. Yet there are no reported

cases that mention the Tribunal’s role in resolving congregant’s civil disputes. The

final section of this chapter considers whether the Tribunal’s decisions were

accorded recognition in civil courts.

83 Lindo, 161Eng. Rep. 636 at 645. 84 LPL, Arches D 146, microfiche 750, fol. 711, Further interrogatories submitted on behalf of Esther

Lindo to Solomon Mordecai Ish Yemini, paragraphs 6 and 7. 85 See Chapter V.

89

5 The reception of the Jews in London’s local courts

Although the Tribunal heard many debt cases, congregants also exercised their right

of access to the English courts to recover debts in the central and local courts. Since

the City of London Court of Requests (‘the City Court of Requests’) small debt

jurisdiction was the most popular litigation destination for congregants’ debt

collection,86 we might expect that its surviving records might provide clues to civil

courts’ attitudes to the Tribunal. Although there is some evidence upon which we

may speculate that the City Court of Requests may have been aware of the

Tribunal’s existence, there is no evidence that it either formally or informally

recognised the Tribunal as a court, whose decisions it was prepared to respect as

definitive and binding.87

Knowledge of the Tribunal’s work may have come to the City Court of Requests’

notice in two ways, via the Jewish brokers who periodically appeared before the

court or via the occasional appearance of the Tribunal’s officials acting on its

orders.88 Dealing first with brokers, all City of London brokers (several of whom

were Sephardim) were required to be sworn in each year by a City of London

alderman and to pay a fee of 40 shillings, which was recoverable from them via the

City Court of Requests. The procedure was documented by listing all brokers names

and their liability in the City Court of Request summons books.89 Brokers were

involved in some of the administrative functions of the City Court of Requests since

they assisted the lay Commissioners to calculate a bankrupt’s liabilities.90 It is an

86 See Chapter IV, esp. section 4.3. 87 cf. Kerner, "Arbitration", 101. Kerner argues that the Tribunal’s work was ‘well coordinated’ with

the London Court of Requests. It will be obvious that Kerner and I have radically different

interpretations about brokers’ involvement with the Court of Requests and the significance of the

occasional appearance of Tribunal officials there. 88 For a list of Jewish brokers, see Dudley Abrahams, "Jew Brokers of the City of London",

Miscellanies (Jewish Historical Society of England) 3 (1937), 80-94. 89 For example, brokers’ lists, see CLA/038/03/005 (1782) and CLA/038/03/007 (1784), Court of Request Summons Books. The convoluted background to the brokers fee is summarised in John

Francis, Chronicles and Characters of the Stock Exchange (London: Longman, Brown, Green, and

Longmans, 1855), 251-255. See also "Art. 27. The Rights of the Stock Brokers Defended against the

Attacks of the City of London: [...] a Statement of the Proceedings on This Subject That Have Lately

Taken Place in the Court of Requests ", The British Critic, 1793-1826, 28 (1806), 577. 90 David Deady Keane, Courts of Requests, Their Jurisdiction and Powers, 2nd ed. (London: Shaw

and Sons, 1845), 142-143. cf. Kerner, "Arbitration", 101, who argues that the brokers’ lists in the

90

interesting question whether these Jewish brokers, or indeed any other Jews, may

have also been eligible to serve as Commissioners and to hear cases themselves.

Commissioners had to be a householder who lived within the jurisdiction of the court

and who possessed real estate valued at twenty pounds and personal property valued

at five hundred pounds.91 Wealthy Jewish brokers may well have satisfied these

qualification requirements, but no Jewish names appear on the few surviving lists of

Commissioners.92 Moreover, until the mid-nineteenth century, all judicial officers

were required to swear a Christian oath, a fatal stumbling block to all Jews who

aspired to judicial office.93

Stronger evidence from the Livros suggests that the Tribunal’s officials occasionally

appeared on behalf of litigants in civil courts. In 1787, the Mahamad deputed the

Samas (shammash; beadle) to attend the ‘corte de justicia’ (court of justice) to

explain what had happened before them in a debt and assault dispute between Jacob

Palache and Samuel Dias Santillano.94 Although the identity of the civil court is

unspecified, the Livro case note mentions a summons and attachment which Palache

had served on Santillano, documents used in debt collection process in both the City

Court of Requests and the local sheriff’s court.95 The Samas’ involvement is

puzzling given that Palache’s underlying complaints were commonplace, and the

case notes are too brief to understand definitively why the Samas was required to

Summons Books indicate that the Jewish brokers listed therein were ‘officially registered as

facilitators that would assist members of the community at court…marking them as “specialists” in

affairs related to the members of the Jewish community. 91 Imprisonment of Debtors Act (1786 26 Geo. III. C. 38) printed in ibid., 128-129. In 1835, the personal property qualification was raised to £1,000: John Henry Brady, The New Law of the City

Court of Requests; by Which the Amount That May Be Sued for Is Raised to Ten Pounds ... Collated

from the Acts, 5 and 6 Will. IV., C. 94-Local. (London: J. S. Hodson, 1835), 7. 92 LMA/CLA/038/01/006 Appointments of Commissioners to sit in the Court of Requests. Few such

records survive. Of those overlapping with surviving Summons Books containing Brokers’ lists, none

include Jewish names. 93 A. N. N. Ebner, "The First Jewish Magistrates", Jewish Historical Studies 38 (2002), 45-73: 50.

Wealthy Sephardi Jews were nominated to parochial offices in Hackney, see Malcolm Brown, "The

Jews of Hackney before 1840", ibid.30 (1987), 71-89: 74, 76, 88-89. Paley argues that this was

exploitation rather than toleration: Ruth Paley, ed. Justice in Eighteenth-Century Hackney: The

Justicing Notebook of Henry Norris and the Hackney Petty Sessions Book ([London]: London Record

Society, 1991), x. 94 LMA/4521/A/01/21/003, Palache v Santillano, 27 Elul 5547/10 September 1787 and 14 Tisry

5548/26 September 1787 for debt and assault, respectively. cf. Kerner, "Arbitration", 100; "Livro De

Pleitos", 273. In the former, Kerner cites Palache to state that ‘hearings held at the arbitration court of

the congregation were regarded as valid procedures by the courts of the realm’ but he omits this view

in the latter article. 95 Palache’s assault allegation suggests involvement of the sheriff’s court. On that court’s debt

jurisdiction, see Chapter IV, section 4.1.

91

attend the civil court. As the Tribunal had already insisted that Santillano repay the

debt he owed to Palache, it is possible that the Samas was to give evidence as a

witness that an admission of debt had already been made and that Santillano should

be given time to repay before debt proceedings were issued. This interpretation fits

with other evidence that the Tribunal aided a litigant whose opponent unreasonably

resisted settlement of an unarguable claim. Just such an example involved Palache

who claimed reimbursement of his legal expenses connected to a sale of goods

dispute from a defendant who refused to settle the matter, insisting that Palache sue

him. The Tribunal made it clear to the parties that if litigation became necessary,

Palache could summon one of the Gentlemen of the Mahamad to report what had

happened before them and that Palache had acted with honour.96

These cases tantalisingly suggest that there were encounters between civil legal

authorities and officials acting on behalf of the Tribunal that reflect Teubner’s

insight that legal pluralism manifests itself ‘as a multiplicity of diverse

communicative processes that observe social action under the binary code

legal/illegal’.97 Although legal pluralism existed in relation to debt disputes, it was

extremely unlikely that civil courts treated the Tribunal as a parallel Jewish

jurisdiction whose rulings they were expected to uphold. This conclusion is

supported by an apprenticeship case heard by the Middlesex Justices of the Peace

who overruled the attempts of the “Jewish Vestry” of an unnamed synagogue to

settle a quarrel between a master and his apprentice, and who released the apprentice

from his Indenture.98 As to courts of request, William Hutton, one of the most

vociferous proponents of lay justice who headed the Birmingham Court of Requests,

was only prepared to dismiss cases if the parties had commenced litigation in

‘another court’.99

96 LMA/4521/A/01/21/003, Habilho v Palache 27 Sivan 5544/16 June 1784; Palache v Habilho, 25

Tamuz 5544/14 July 1784. For the Mahamad’s assistance in marriage cases, see Chapter V, section 3.4. 97 Teubner, "Two Faces of Janus", 1451. 98 Endelman, Jews of Georgian England, 190. See LMA/MJ/SP/1771/09/071 and Middlesex Sessions:

Sessions Papers – Justices’ Working Documents, September 1771 LMSMPS506120121 and

LMSMPS506120122 (www.londonlives.org, version 1.1, 17 June 2012, accessed 25/04/2021). 99 William Hutton, Courts of Requests: Their Nature, Utility, and Powers Described, with a Variety of

Cases, Determined in That of Birmingham (Birmingham: Pearson and Rollason, 1787), 37.

92

The only route available for Jews to have their adjudicative decisions recognised and

enforced by the English courts was via arbitration, taking us full circle back to the

‘condition of strangers’ of the mid-seventeenth century, with one significant

difference. Penal bonds, which had been crucial to the enforcement of arbitration

agreements in the mid-seventeenth century, had been replaced by procedures in the

Arbitration Act 1698 whereby arbitration agreements were enforceable by the courts

if they had been made a ‘rule of court’. Breach of the agreement became a contempt

of court, which allowed the defaulting party to be imprisoned for contempt.100 As we

shall see in Chapter IV, most of the Tribunal’s process was informal and only a

small minority of congregants used formal arbitrations and penal bonds. Informality

freed parties from complicated procedures that necessitated drawing up individual

agreements to arbitrate and making them rules of court, but the obvious downside of

informality was the inability to enforce an agreement as of right in the English

courts. But the fact remains that even formal arbitrations were private processes

incapable of conferring any formal or informal recognition on the Tribunal as a

Jewish judicial authority.

The appearance of real Jews in seventeenth-century English courts challenged judges

to re-assess whether religious doctrine should continue to dictate how the law

decided who was entitled to the court’s protection. While the law retained the broad

categories, alien and native-born subjects, Coke’s alien enemy and perpetual enemy

sub-categories underwent rapid transformation. Economic expansion exposed the

courts to diverse religious and national groups whose individual members found

themselves involved in legal disputes in the English courts. It was not in the interest

of commerce that their evidence be excluded from the courts on the grounds of their

religious beliefs. Neither was it in the interests of justice for a defendant to exploit a

procedural bar to exclude a Jew’s cause of action from the courts. By the end of the

seventeenth century, Jewish native-born subjects and Jewish aliens had the same

right of access to the English courts as Christian aliens and native-born subjects. By

the end of the eighteenth century, the Christian ecclesiastical courts considered it the

‘natural right’ of Jews to litigate their marital disputes before them. Such Jewish

100 Horwitz and Oldham, "John Locke", 143. See also Roebuck, Arbitration and Mediation, 428-437;

Roebuck, Boorman, and Markless, English Arbitration Eighteenth Century, 47-55. It was beyond the

scope of this thesis to research whether congregants used the ‘rule of court’ procedure.

93

judicial space that there was in this period rested on the willingness of Jews

voluntarily to comply with bet din rulings on religious matters since no ecclesiastical

court would force a Jew to litigate her dispute before a Jewish court. The modern

trajectory for the Jewish judicial space had been set by the Whitehall sub-

committee’s response to Menasseh’s plea for judicial autonomy. Although Jews

were no longer ‘strangers’, it was clear that they did not have ‘publicke

Judicatoryes’. Instead, they had the right like any other subject to compromise their

disputes by informal mediation or arbitration, but only formal arbitrations that

complied with the Arbitration Act 1698 procedures could be enforced in the English

courts.

94

IV. CIVIL CASES

1 The Livro de Pleitos as a source for understanding Jewish justice

Menasseh ben Israel and the Portuguese conversos had been denied formal judicial

autonomy, but, as we have seen in Chapter III, there was a general right available to

the Jews privately to arbitrate disputes. Moreover, Jews were able to exploit the

ambiguities in Jewish legal status to establish that they had the same rights of access

to the civil and ecclesiastical courts as any other subject. In this and the next

chapter, I examine how the London community created and maintained a Jewish

judicial space within these parameters set after resettlement. In reviewing the recent

stimulating scholarly literature about the Livros, I noticed a tendency to find points

of similarity between the workings of the Jewish judicial space and the local courts

to which congregants submitted their disputes, rather than to analyse how the Jewish

judicial space functioned on its own terms. The methodology tended towards an

apparently inevitable conclusion that, to win the battle of jurisdiction against non-

Jewish courts, Jewish dispute resolution services had to acculturate to English legal

norms to survive. This reasoning largely ignored influences from the transnational

Western-Iberian judicial framework, as well as the halakhic underpinnings of Jewish

justice. Yet, it was also true that the Jewish judicial space did adapt to English legal

norms and my analysis needed to explain that adaptation. Drawing on the insights of

legal pluralism theorists, I developed an alternative methodology to analyse how the

Jewish judicial space worked and to explain its relationship with English legal

culture.

Taking as my cue Cover’s metaphor of narrative as a bridge between vision and

reality, I developed an analytical distinction between ‘functionality’ and

‘effectiveness’. Functionality focused attention on the London community’s vision

for their Jewish judicial space. This vision was traceable through analysing how the

idea of Jewish justice was articulated in the community’s governing statutes, the

Ascamot. Effectiveness focused attention on the way in which this vision became a

practical, workable, and realistic form of community-based justice. It also provided

a way to engage with the unavoidable fact that most dispute resolution users were

95

poor congregants, without concluding (as Kerner puts it) that ‘[f]ar from functioning

in a purely juridical capacity, the Mahamad seems to have acted as custodian of the

congregation’, meaning to say that dispute resolution was an extension of charitable

or welfare services rather than an end in itself.1 While socio-economic factors

impacted litigation choices, my analytical model facilitated understanding that the

vision was for Jewish justice for all, irrespective of social and economic background.

The successful implementation of that vision was inextricably interwoven with

individual choices of legal forum. As congregants navigated between community-

based justice and the labyrinthine English legal system, their encounters with

different courts posed challenges to the Mahamad in their judicial capacity sitting in

the Tribunal that heard congregants’ disputes. This and the next chapter explain the

process of adaptation that resulted from the encounter between the Jewish judicial

space, congregants, and the non-Jewish courts.

Understanding how Jewish justice worked for congregants and the Mahamad in the

eighteenth and nineteenth centuries is possible thanks to the rich primary archival

resource of the six folio volumes of Livro de Pleitos (Book of Lawsuits; together

‘the Livros’) maintained by the Mahamad from 1721 to 1868, and recent scholarship

that now provides an invaluable, in-depth description and analysis of the Livros’

case notes.2 The reason why the Mahamad began to document dispute resolution is a

mystery, though the influx of Sephardi refugees fleeing the Spanish inquisition from

1721 onwards and throughout the decade may have prompted a review of pre-

existing, undocumented dispute resolution procedures and a decision to keep a

formal record of dispute resolution outcomes.3 Documentation is mostly in

1 Kerner, "Shirts, Biscuits", 55, 66. 2 Samuel, "The Mahamad as an Arbitration Court"; Kerner, "Arbitration"; "Livro De Pleitos"; "Shirts,

Biscuits". 3 On the refugee influx, see Vivian David Lipman, "Sephardi and Other Jewish Immigrants in

England in the Eighteenth Century", in Migration and Settlement: Proceedings of the Anglo-American

Jewish Historical Conference [...] July 1970 (London: Jewish Historical Society of England, 1970),

41. Kerner argues that a lack of documentary evidence of communal arbitration means that either

there was little litigation before 1721 when the Livros commenced, or that the merchants among the congregation litigated in the English courts. A ‘working legal mechanism’ was necessary with the

‘rapid growth in numbers’ in the 1720s: see Kerner, "Livro De Pleitos", 266-267. While these are

cogent points, an argument from silence is always difficult. It is equally possible that the merchants

successfully mediated their civil disputes and/or did not consider it necessary to document

mediations. For eighteenth century Chancery proceedings, see G. Dworkin, "Equity Proceedings in

the Court of Chancery (1750-1800)", Miscellanies (Jewish Historical Society of England) 6 (1962),

195-198.

96

Portuguese until a Mahamad resolution in February 1819 switched administrative

record-keeping to English.4

The documenting of disputes exposed something that had become apparent in the

1693 Ascamot (see further below), namely, that the Mahamad had a judicial function

independent of their executive authority. By the nineteenth century, ‘tribunal’ or

‘court’ was being used in administrative records and congregants’ correspondence to

refer to this judicial function.5 I use ‘Tribunal’ to distinguish this independent,

judicial function of the Mahamad. I use ‘Mahamad’ either when I refer specifically

to their executive function or where, as was sometimes the case, the lines between

executive and judicial roles were so blurred as to make them difficult to unravel. I

retain ‘Mahamad’ where the Ascamot, minutes, or other documents (apart from the

Livros themselves) use that term, even though the context relates to judicial matters.

Table A below provides basic statistical information from the Livros such as start

and end date per book, the year span for each book and the number of entries

recorded therein.6 The figures for the total number of entries per Livro reflect

separate entries that state the name of the complainant against one or more

defendants. Record keepers adopted different methods of recording cases. Each

session usually stated the Hebrew and English date and the names of the three

gentlemen of the Mahamad sitting on the Tribunal panel that session. (Livro 1 stated

the Hebrew date only). Apart from part of Livro 2, where 374 case notes are

consecutively numbered, no attempt was made to keep a record of the numbers of

cases the Tribunal handled. Livro 6’s layout is markedly different: since hearings

took place on Rosh Ḥodesh, usually each month’s Hebrew name is stated together

4 See LMA/4521/A/01/04/004 Minutes of the Elders 10 Adar 5569/2 February 1809 to 12 Sebat

5579/7 February 1819, p. 348. Mentioned in Neville B. Laski, The Laws and Charities of the Spanish

and Portuguese Jews' Congregation of London (London: Cresset Press, 1952), 29, 200. For

communal language policy, see Alex Kerner, Lost in Translation, Found in Transliteration: Books,

Censorship, and the Evolution of the Spanish and Portuguese Jews' Congregation of London as a

Linguistic Community, 1663-1810 (Leiden: Brill, 2018). 5 LMA/4521/A/01/03/008, Minutes of the Mahamad, 6 Tamuz 5579/29 June 1819, p. 40: ‘the Haham

declared that…he cannot…answer to this Tribunal to the complaint of any Individual.’ Ibid., 26 Elul

5579/15 September 1819, pp. 61-62, Moses Lara’s letter: ‘the Haham refuses to plead to your Court, under the unfounded pretence that you are not a competent Tribunal’. In the Livros

LMA/4521/A/01/21/006, Benjamin Costa v Moseh Belasco, 28/9 Kislev 5600/5 December 1839 and

Mahamad RH Hesvan, 30 Tisry 5600/8 October 1839 (reference to the ‘Hesvan Court’). 6 Livros citations produce the Hebrew and English dates as they appear in the text. In some instances,

I have added missing Hebrew/English dates in parenthesis to assist the reader. The spelling of parties’

names is highly inconsistent and often abbreviated in the text. Where possible, I have reconstructed

the full name of the parties.

97

with the exact Hebrew and English dates, preceded or followed by ‘Mahamad

meeting’ but a list of the panel is omitted. Each page was divided into two columns;

the left-hand column adopted English cause list format to state the names of the

parties, for example, Isaac Hart v Aron Alvares, followed by a pre-ruled line across

the page. The second column contains very brief case details, sometimes in tiny

handwriting due to lack of space.7 The quality of individual case notes across the

Livros is highly inconsistent, ranging from extensively detailed records to the

complete absence of any information apart from the parties’ names. Although most

case notes are brief, in the eighteenth century there was greater emphasis on

providing a comprehensible case note that future record keepers might consult to

ascertain basic information such as the financial details of a settlement.

Table A8

Livro

de

Pleitos

Hebrew start date English start date Hebrew end date English end date Year

span

Total

number of

entries per

Livro

1 23 Sivan 5481 [7 June 1721] [] Tamuz 5531 [ - June 1771] 50 134

2 20 Hesvan 5533 16 November 1772 27 Tevet 5544 21 January 1784 12 839

3 27 Sebat 5544 19 February 1784 26 Menahem

5553

5 August 1793 9 903

4 26 Hesvan 5554 31 October 1793 27 Elul 5564 3 September 1804 11 689

5 27 Hesvan 5565 1 November 1804 30 Sivan 5589 1 July 1829 25 1453

6 28 Nisan 5597 3 May 1837 [] Adar 5628 [] March 1868 31 1125

Debt collection was the most common type of dispute arising from unpaid trade

bills, loan notes, rent, business trading accounts, and moneylending. Money issues

frequently concerned the maintenance of close relatives, or wives who had separated

from their husbands. The Tribunal heard inheritance disputes, as well as personal

status issues (such as the validity of a marriage or divorce), though it is clear from

the Mahamad minutes that personal status issues must have been discussed at

Mahamad meetings too. Disputes about private employment (such as

7 LMA/4521/A/01/21/006, RH Sivan 5597, 26 Iyar 5597/31 May 1837. 8 The likely explanation for the six-year gap between Livros 5 and 6 is that there was a seventh Livro,

as yet unlocated. For statistics from 1721 to 1799 reflecting type of dispute, gender of complainants,

permission to sue in the courts, and ‘no-shows’ at the Tribunal, see Kerner, "Livro De Pleitos", 282-

287. I have not produced statistics for the nineteenth century because Livro 6 entries are frequently

too sketchy to extract comparable statistical information. Appendix 1 lists the number of entries each

year from 1800 to 1868.

98

apprenticeships) and employment within the community (e.g., concerning baking

matzot at Passover), as well as problems associated with communal institutions (e.g.,

complaints against teachers, doctors, keepers of the cemetery) all came to the

Tribunal. Then there were the frequent quarrels between husbands and wives and

other relatives, and between neighbours, where accusations ranged from physical

violence to defamation. It is beyond the scope of this thesis to examine every type of

dispute we see in the Livros. I have therefore narrowed down my illustration of the

mamona v issura distinction discussed in Chapter II by concentrating in this chapter

on debt collection and in the next chapter on personal status disputes arising from

marriage and divorce.

I begin my study of debt collection disputes with the conceptual issues that underpin

my research, namely, my methodological distinction between functionality and

effectiveness, and the legal pluralism and anthropological theories which aided my

understanding of the way in which disputes were resolved at the Tribunal. These

theories also assisted me to understand the nature of the relationship between a

community-based justice system and the state legal system. I then discuss the vision

for the Jewish judicial space as articulated in the community’s Ascamot, explaining

how that vision developed until the mid-nineteenth century, when the Livros ceased

to be kept. I then analyse the challenges the Tribunal faced in translating that vision

into practical reality.

2 Functionality and effectiveness of community-based justice

While functionality and effectiveness are admittedly interconnected, they address

two separate issues. Functionality addresses how the community itself articulated its

vision of dispute resolution in its governing Ascamot, whereas effectiveness

acknowledges the influence on the Tribunal and its users that inevitably flowed from

the multi-layered jurisdictional choices litigants made to secure an appropriate

remedy. Distinguishing functionality from effectiveness allows discussion of the

Tribunal on its own terms as a Jewish forum that reflected both halakhic principles

for dispute resolution and the transnational legal culture of the Western-Iberian

Sephardim. This approach avoids the argument based on acculturation as an

99

interpretative tool that led to Kerner’s conclusion that the ‘Mahamad of London,

sitting as an inner court of law’ operated as a ‘duplicate of the English Court of

Requests’ because of the type of cases it heard (small debts), its litigants (mainly the

poor), and its informality (no legal representation).9 My analysis leads to the

opposite conclusion that the Tribunal’s function was firmly situated in a historical

continuum of an idea of Jewish justice as compromise, but that its effectiveness was

dependent on its ability to adapt to local legal culture and to co-opt local procedures

and principles to preserve a Jewish judicial space.

I rely on Simon Roberts’s legal anthropological ‘processual’ approach to studying

disputes within their socio-legal context in my analysis of the Livros. Roberts

differentiates a three-stage process in dispute resolution whereby parties start with

bilateral negotiation without third party assistance and move to a second stage where

an umpire acts either as their neutral go-between, or as a mediator to facilitate a

settlement negotiated by the parties or acts proactively during negotiations to suggest

avenues for settlement. In the third and final stage, an umpire may act either as

arbitrator or adjudicator to impose a solution on the parties. Here arbitrator and

adjudicator are at opposite ends of a spectrum where arbitrators remain the parties’

appointees and adjudicators derive their authority from outside the parties, such as

the community of which they are part.10 The complexities in the Tribunal’s

changing role bring to mind Roberts’ warning to avoid equating adjudication with

formality and negotiation with informality; likewise, any assumption that some form

of coercive power may be present in the former and entirely absent from the latter.11

My analysis of the Tribunal’s functionality and effectiveness has been informed by

the legal pluralism theories mentioned in Chapter 1.12 This chapter deploys these

theoretical approaches to explain and clarify the relationship between the early

modern English legal system and the community’s legal system and to elucidate the

9 On the Tribunal as a duplicate of the English Court of Requests, see ibid., 266. He argues that the

Mahamad ‘was not following any Jewish custom or any other specific Jewish community (even if

such institutions did exist in other communities).’ See also Samuel, "The Mahamad as an Arbitration

Court". At p. 9 Samuel describes the Mahamad as the ‘community’s magistrates’. On the problems of applying acculturation as an interpretative tool to legal cultures, see Chapter VII, Conclusion. 10 Simon Roberts, "The Study of Dispute: Anthropological Perspectives", in Disputes and

Settlements: Law and Human Relations in the West, ed. John Bossy (Cambridge: Cambridge

University Press, 1983), 1-24: 11-12, 15. For a critical perspective of the Bossy project and Roberts’

processual approach, see Jordan, "Rethinking Disputes". 11 Roberts, "The Study of Dispute", 13. 12 Chapter I, section 4.

100

importance of acknowledging that the Sephardim themselves considered they were

running a legal system, despite the absence of much hard law (English or Jewish) in

the Livros and their lack of enforcement power. At first glance, the denial of judicial

autonomy suggests a legal centralism model that required Jews to submit to English

law and courts in all aspects of their lives. This and the next chapter illuminate that

the relationship was closer to classical or weak legal pluralism that permitted Jews to

operate their own legal system, subject to strict control by the state. Even this picture

is nuanced because in Chapter V we will come across a space for strong legal

pluralism, where halakhah provided a remedy forbidden in English law (divorce).

Applying legal pluralism theory, the Sephardi community developed a system of

normative ordering with its own ‘processes of establishing rules, securing

compliance with these rules, and punishing rulebreakers’.13 Coercive authority was

relevant to the Tribunal’s effectiveness, but it was not decisive of the question

whether the Tribunal functioned as a legal forum which implemented Jewish legal

principles governing dispute resolution that promoted compromise rather than the

strict application of either halakhic or English legal rules.14 By its Ascamot, the

community expressed (per Cover) its narrative vision of its normative legal universe,

the implementation of which was dependent on the force of the interpretative

commitment of congregants to maintain that vision. This was a world where

obedience flowed from strong interpersonal commitment and common obligation,

rather than coercive power.15 There was a world of legal meaning in the functionality

of the Tribunal that reflected a common narrative of the religious value of avoiding

13 Merry, "Legal Pluralism", 870-871. 14 cf. Berkovitz, Protocols, 46-47; 117-118; Law's Dominion, 46, 149. Berkovitz applies legal

pluralism theory to analyse the pre-French revolution caseload of the Ashkenazi bet din of Metz

which reveals how both the French courts and the bet din accommodated alternative legal systems and

law. The French state officially recognised the Metz community and granted it explicit legal

autonomy. French courts used a French translation of the Shulḥan ῾Arukh as a source for Jewish law

in disputes between Jews. The Metz bet din’s pinkassim reflect adaptations to French law and legal

procedures. 15 See Cover, in Minow, Ryan, and Sarat, Narrative, Violence and the Law, 95, 96, 98-99, 101. He

contrasts world-creating or paideic communities of strong obligation and world-maintaining or imperial societies of weak obligation dependent on institutions for enforcement. On Cover’s argument

that Jewish law concerns obligation rather than rights, see his essay “Obligation: A Jewish

Jurisprudence of the Social Order” in ibid., 239-248. Personal obligation to observe divine law can

function in a Jewish justice system such as that of the Mahamad’s Court but, as Suzanne Last Stone

points out, it has limited application to secular legal systems. See Suzanne Last Stone, "In Pursuit of

the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory",

Harvard Law Review 106 (1993), 813-894.

101

state courts, of Judaism’s privileging of compromise as a dispute resolution

mechanism, and of the recognition that a recalcitrant defendant should not defeat the

ends of justice.

My analysis treats the historical reality that Sephardi congregants regularly

interacted with the English courts as an opportunity to understand (per Teubner) the

communicative processes resulting from those interactions under the binary code

legal/illegal.16 These processes direct attention to ‘how people processed conflicts,

specifically the moves and tactics of disputants’ and can be contextualised against

the community’s rules and processes governing the resolution of conflicts.17 As this

Chapter explains, some disputes reveal a close connection between internal rules and

processes, and that forum-shopping was a tactic to advance a litigant’s bargaining

position, rather than a serious attempt to obtain an enforceable court order.18 Finally,

individual choices must be considered within the specifically Western-Iberian

historical framework outlined in the previous chapter to understand how they

interacted with the way in which the community constructed its judicial space.

3 Mediation, arbitration, and the Tribunal

3.1 From neutrality to active dispute resolution

The history of what I have termed the Disputes Ascama reveals a dramatic

transformation in dispute resolution from a process designed for use by a small

cohort of wealthy merchants for commercial disputes, to a fully functioning

communal disputes resolution system aimed at all congregants for a vast range of

disputes.

16 Teubner, "Two Faces of Janus", 1451. Cited by Emmanuel Melissaris, Ubiquitous Law: Legal

Theory and the Space for Legal Pluralism (Farnham, Surrey: Ashgate Publishing, 2009), 36. 17 Quotation in Jordan, "Rethinking Disputes", 31. This responds to Bossy’s collection, John Bossy, ed. Disputes and Settlements: Law and Human Relations in the West, pbk. ed. (Cambridge:

Cambridge University Press, 1983). For jurisdictional conflict as an analytical tool, see Lauren A.

Benton and Richard Jeffrey Ross, eds., Legal Pluralism and Empires, 1500-1850 (New York: New

York University Press, 2013). 18 On ‘forum shopping’ see Keebet von Benda-Beckmann, "Forum Shopping and Shopping Forums:

Dispute Processing in a Minangkabau Village in West Sumatra", J. Legal Pluralism 19 (1981), 117-

160.

102

The first Ascamot of Kahal Kadosh Saar Asamaim, (Holy Congregation Gate of

Heaven) as the London community called itself, were based on the 1639 Ascamot of

Kahal Kadosh Talmud Torah of Amsterdam and came into force on 1 Nissan 1664.19

Ascama 25 of the 1664 Ascamot followed the terms of Ascama 33 of the 1639

Amsterdam Ascamot by providing for a two-stage process whereby a Yahid was to

bring ‘matters of dispute with his fellow on an affair of business’ before the

Mahamad by summoning the prospective defendant, via the community’s Samas, to

a hearing before the Mahamad. At the hearing, the Mahamad was required to ‘urge

[the parties] to take arbitrators before whom they may lay their case and give their

reasons’. The Disputes Ascama did not envisage that the Mahamad itself would

have a substantive role in resolving disputes; instead, the Mahamad were mere

procedural facilitators for the selection of arbitrators, mutually agreed by the parties,

who would hear and rule on the dispute independently of the Mahamad. If within

eight days the parties failed to agree arbitrators, or if an arbitration did not achieve

settlement in that period, the parties were ‘free to seek and defend their rights before

whom they may please’. Yehidim were only sanctioned ‘as may seem fit’ to the

Mahamad if they failed to summon a prospective defendant before the Mahamad

before proceeding in non-Jewish courts.

The Mahamad’s substantive neutrality was short-lived. The Disputes Ascama in the

Ascamot of 1677 and 1693 (renumbered Ascama 19) imposed on the Mahamad a

positive obligation to use ‘all possible diligences’ to settle disputes. If they were

unsuccessful, they had an additional obligation to persuade the parties to appoint

arbitration judges (juives arbitros) to try and settle the dispute.20 This framework

was repeated in the consolidated amended Ascamot of 1733 (in which Ascama 19 is

renumbered 16), apart from an additional provision that forbade a single Parnas

from exercising any of the Mahamad’s powers.21 In 1781, the community began a

comprehensive review and consolidation of all their Ascamot, finally agreeing a text

19 Lionel D. Barnett, El Libro De Los Acuerdos: Being the Records and Accompts of the Spanish and

Portuguese Synagogue of London from 1663 to 1681 (Oxford: Printed at the University Press by John

Johnson, 1931), [vii]; Hyamson, Sephardim, 28, 32. I use Arabic numerals when quoting from all versions of the Ascamot, although the numbering system in some manuscript and printed versions

combines Roman and Arabic numerals. For the convoluted production history of the Ascamot, see

Kerner, Lost in Translation, 49-56. 20 LMA/4521/A/01/01/002, Book of Ascamot passed in Menahem, 5437, [n.f.], Ascama 25;

LMA/4521/A/01/01/003, Photocopy of Rosenthaliana Livro das Ascamot, 4 Tisri 5454 to 27 Adar

5484, [n.f.], Ascama 19. 21 LMA/4521/A/01/01/005, Book of Ascamot passed 5493, [n.f], Ascama 16.

103

in 1782, which was printed for the first time.22 Revisions continued until a final,

definitive version came into force on 1 Tishri 5545 (September 1784), which was

printed in 1785.23 The revision process altered the scheme of the Disputes Ascama

by treating dispute resolution as part of the Mahamad’s general duties listed in

Ascama 10(7) and stating the procedure for dispute resolution separately in Ascama

14.

While the 1782 version of the Ascamot described the Mahamad as ‘being arbitrators’

of the disputes they heard, the 1784 definitive version simply provided that the

Mahamad was to ‘endeavour’ to ‘reconcile’ the parties to a solution that reflected

‘reason and justice’ or, alternatively, to advise the parties to leave decision-making

to louvados (assessors).24 The 1784 version clearly envisaged a two-stage process

whereby, firstly, the Mahamad was actively involved in dispute resolution and

secondly, where it advised the parties to appoint separate assessors. Clearly, the

drafters must have realised that to designate the Mahamad as arbitrators at the first

stage of their involvement did not accurately reflect the way in which the Mahamad

in fact handled dispute resolution, as we shall see further below. Ascama 14’s

procedural provisions bolstered the two-stage process by clarifying that the purpose

of summoning a party to the Mahamad before litigating in non-Jewish courts was to

give them the opportunity to ‘amicably adjust the difference’ between the parties ‘or

cause it to be referred to arbitrators.’ Ascama 14 also preserved the urgency

exception we saw in Amsterdam’s Ascamot for cases concerning bills of exchange

or any other cause where delay was prejudicial. It also set out a system of monetary

penalties; a failure to comply with the summons procedure resulted in a £5 fine,

22 Congregation of Spanish and Portuguese Jews of London, Ordem Das Ascamot, Formadas, E

Revistas Pellos Senhores Do Mahamad ... Em Junta De 17 Hesvan 5542, Etc ([London][1784]). For

the manuscript draft preceding the printed text, see LMA/4521/A/01/01/006, Ascamot as revised by

committee appointed 13 and 17 Hesvan 5542 [1781], which for the first time has a simultaneous

translation of the original Portuguese into English. In the 1782 printed version, the Mahamad’s duties

are in Ascama 8(7) and procedure in Ascama 11 and in the manuscript draft they are Ascama 5(7) and

9(2) respectively. 23 For the printed 1785 version, see Ascamot, Para O Governo Da Congrega De Saar-Ashamaim, De Londres. (Alteraçoens, Etc.) ([London] [5545-6], [1785-6]). The manuscript original is

LMA/4521/A/01/01/007, Book of Ascamot passed 5545. I refer to the year in which the Ascamot

came into force, 1784, rather than the date of printing, 1785. 24 Ascama 10(7) in ibid., 44-45. The Mocatta Library Special Collection at University College

London has a copy of this 1785 printed version of the Ascamot containing a handwritten, English

translation on the facing page to the Portuguese printed text. see Ref Collection K, SR Mocatta,

Pamphlets Box 10, UCL0098696.02. My quotations reflect the language of the English translation.

104

payable to the Sedaca. The Mahamad had a discretion to fine anyone who failed to

respond to their summons without sufficient excuse, and anyone who did not pay

their fine incurred an additional penalty.25

Ascama 10(7) of the 1784 Ascamot clarified that the Mahamad had an active role at

the first stage of the dispute resolution process to persuade the parties to ‘do that

which is justice and reason’, rather than to act only as neutral umpires who

facilitated negotiations between the parties. This was further refined in the 1831

version of the Disputes Ascama (renumbered 5(7), with the judicial procedure at

Ascama 9) which stated that the Mahamad ‘shall endeavour to reconcile the

contending parties, persuading them to that which is just and reasonable…’

(emphasis added).26 Justice and reasonableness echoed both the guiding halakhic

principles for the resolution of all disputes, whether before batei din or laymen, as

well as English legal concepts of equitable justice. However, it is impossible

definitively to say whether this wording was deliberately included to echo English

legal principles or whether the drafters wished to reflect general halakhic principles

of fairness and justice. All we know for certain from the Livros is that by the mid-

1780s, congregants were using the equitable jurisdiction of the Court of Requests for

small debt collection and the Court of Chancery for inheritance and other disputes,

and that language found its way into the Disputes Ascama that echoes English legal

principles.

Another major review and consolidation of the Ascamot took place in 1849 which

resulted in a simplified, single Disputes Ascama 5(7) that left intact the Mahamad’s

general dispute resolution duty and incorporated an extremely truncated procedural

25 Ibid., 63-66. For an early example of the exercise of powers under Ascama 16, see

LMA/4521/A/01/03/001, Minutes of the Mahamad, 2 Ab 5493 (1733), fol. 82, the imposition of a five

shilling fine for suing for a debt without prior licence from the Mahamad. Ascama 16 is mentioned in

the Livros, LMA/4521/A/01/21/002, Jacob de Moseh Rey v Isaac de Daniel Rodrigues, 26 Tebet

5538/25 January 1778 (10 shilling fine); Abraham Lopes Fernandes v Selomon Cohen Delmonte and

others, 12 Tamuz 5542/24 June 1782 (no infringement found). Ascama 14 is mentioned in

LMA/4521/A/01/21/003, Abraham Leon Sebolla v Isaac Saqui, 15 Menahem 5546/9 August 1786 (ask pardon); Joseph H Abraham Nunes Martines v Raphael Rodrigues Habilho, 27 Elul 5550/6

September1790 (£5 fine); LMA/4521/A/01/21/005, Solomon Joseph v Jonathan Brandon, 27/28 Tisri

5572/15 October 1811 (£5 fine); Mrs Samuel Bendelack v Mr Hananya Bolaffin, 28 Sivan 5582/17

June 1822 (referred to complete Mahamad to consider fine). 26 Congregation of Spanish and Portuguese Jews of London, Ascamot, or, Laws and Regulations of

the Jewish Congregation Entitled Shaʻar Ha-Shamayim in London ([London]: Printed by J.

Wertheimer, 1831), 40.

105

process. It retained the two-stage process explained above and the requirement to

persuade parties to accept what was ‘just and reasonable’. It still required permission

to sue, while retaining a substantially wider urgency exception that applied to ‘any

case where delay would be prejudicial’ to a claim. Fines were standardised at not

more than £5 for suing without permission and failing to appear when summoned.27

Despite Ascama 5(7)’s articulation of the broad pattern of two-stage dispute

resolution process and a requirement for all litigants to seek permission to sue in

non-Jewish courts except in urgent cases, the Livros show that there was a marked

shift in actual litigation patterns. By the mid-nineteenth century, the recording of

congregants’ disputes in the Livros had become so patchy that it no longer resembled

a concerted attempt to document a legal process. There was a sharp decline in the

number of individuals who brought their disputes to the Tribunal. Even the poor,

who previously brought their small debts disputes and family quarrels to the

Tribunal, stopped appearing before it. To adopt Cover’s metaphor, any bridge that

had once existed between an idealised vision of Jewish justice as articulated in the

Ascamot and the practical reality of actual behaviour of congregants had broken

down completely.

3.2 Religious justification for Jewish justice?

The evolution of the Disputes Ascama from the seventeenth to the nineteenth century

reveals an increasingly overt discomfort about deploying religious justifications for

the settlement of disputes in the Jewish judicial space. The early iterations of the

Disputes Ascama of 1693 and 1733 claimed a religious motive for enjoining

congregants not to litigate in English courts because to do so might amount to a

‘profanation of the name of God.’28 This overt religious motivation for avoiding the

non-Jewish courts was supported by a 1700 resolution of the Elders that required the

Mahamad to persuade parties whose ‘controversies’ they were unable to settle, to opt

for a ‘din thorah’ instead.29 A din torah is the halakhic term for the judicial

procedures of a bet din whose ruling is made according to strict halakhic principles.

27 Ascamot or Laws and Regulations of the Congregation of Spanish and Portuguese Jews ... London.

Revised and Amended (London: E. Varty, 1850), 23-24. 28Ascama 19 of Ascamot passed on 4 Tisri 5454 [1693] in LMA/4521/A/01/01/002, Book of Ascamot

passed in Menahem, 5437 [1676],[n.f]. 29 Ibid.

106

It seems that, already at the beginning of the eighteenth century, the Jewish judicial

space encompassed both pesharah (compromise) by laymen and dinei torah before

rabbis. By 1705, the structure of Jewish justice was completed by the establishment

of a permanent standing Bet Din which was instructed to decide disputes by din or

close to din.30

However, the early Ascamot had a more prosaic reason for avoiding non-Jewish

courts – to prevent litigation causing a ‘scandal’. The Mahamad’s notion of self-

government was intimately connected to their assumption that Charles II’s 1664

Declaration of Indulgence that the Jews ’demeane themselves peaceably and quietly

with due obedience to his Majies Laws & without scandal to his Government’,

required the Mahamad to ensure that the community did nothing that negatively

impacted their standing with the governing authorities and in wider society.31 From

the late eighteenth century onwards, averting ‘scandal’ became the dominant

justification for avoiding civil litigation. Ascama 10(7) of the 1784 Ascamot required

the Mahamad to work ‘diligently’ to avoid the parties resorting ‘to the Public Courts

of Justice that they be not the means of bringing an odium upon us.’32 Ascama 5(7)

of the 1831 Ascamot similarly stated that the Mahamad was to make ‘every exertion

to prevent the parties from carrying their complaints into the public Courts of Justice

not to render us odious therein.’ Odiousness had replaced causing scandal and

profaning God’s name in the Disputes Ascama, shifting emphasis from a religious

motivation to an outwardly facing concern about the possible impact litigation in

public courts might have on the community. From 1784, the Ascamot characterised

English justice as ‘public’, in contradistinction to the ‘private’ space where Jewish

justice was exercised. The 1850 Ascamot omitted the odiousness reference

altogether which further highlighted the distinction between private Jewish justice

and public English justice.33

30 Kerner, "Livro De Pleitos", 263. 31 Quoted in Katz, Jews in History of England, 142. 32 Ascama 10(7) in Congregation of Spanish and Portuguese Jews of London, Ascamot of 1784, 44-

45. Quotation from the handwritten, English translation of the 1784 version in the Mocatta Library

Special Collection at University College London: Ref Collection K, SR Mocatta, Pamphlets Box 10,

UCL0098696.02. 33 See Ascama 5(7) of the Ascamot of 1850. Unusually, public courts were referenced as a ‘Christian

Court’ in LMA/4521/A/01/21/005, Joseph Zamira v David Paz Cardozo, 29 Adar 5582/21 March

1822; Joseph Saqui v Jacob Fernandes, 3 Sivan 5582/23 May 1822.

107

3.3 An expanding substantive jurisdiction

The functionality of the Tribunal was dependent on the ambit of its substantive

jurisdiction over congregants’ disputes which was set by the community’s Ascamot.

Drafted by the merchant founders of the community, Ascama 25 of the 1664

Ascamot envisioned that business disputes would be the primary subject matter of

disputes between congregants. All ‘affairs of business’ were to be submitted to the

Mahamad, apart from time-critical matters arising from letters of exchange and

detention of goods, where delay might prejudice the outcome of the dispute.34 This

urgency exception remained in the community’s Ascamot throughout the period of

the Livros.35

The assumption that business disputes would be the only controversial matters that

congregants needed to resolve was, however, quickly dispelled. By the late

seventeenth century, this wording did not have the jurisdictional reach needed to

assert authority over all disputes between congregants. Accordingly, Ascama 19 in

the 1693 Ascamot substituted ‘doubts and disagreements’ for ‘affairs of business’

between congregants, thus enabling the Mahamad to hear disputes far removed from

the business world. Ascama 16 of the 1733 Ascamot did not alter this formulation,

which remained in place until the major revisions that culminated in the 1784

Ascamot.

Ascama 10(7) of 1784 reformulated the Mahamad’s dispute resolution duty to provide

that they were required to ‘hear the complaints or disputes that may arise between any

Yehidim or Congregantes whether for offences or for debts’ (emphasis added).

34 I follow Kerner’s new translation of Ascama 25 in Kerner, "Livro De Pleitos", 260 n. 6. cf. Barnett,

El Libro De Los Acuerdos, 9-10. Kerner noticed that Richard Barnett had mistranslated ‘sobre materia

de hasienda, como no sea letras de cambio, y aresto de effettos’ as ‘on an affair of business, such as

letters of exchange and detention of goods’ rather than ‘on an affair of business, as long as it is does

not concern, letters etc.’ [Kerner’s italics.] Barnett’s translation suggested an extremely narrow

jurisdiction over disputes arising from letters of exchange and detention of goods only. Kerner’s correction aligns the London community’s dispute resolution jurisdiction with that of Amsterdam. 35 For eighteenth century examples, see LMA/4521/A/01/21/002, Abraham Lopes Fernandes v

Selomon Cohen Delmonte and other executors of Moses Israel da Fonseca and Abraham Lopes

Fernandes v Naphtaly Paz de Leon, 12 Tamuz 5542/24 June 1782. For nineteenth century examples,

see LMA/4521/A/01/21/005, Ester de Abraham Serra v David Paz Cardozo, 27 Adar 5581/1 March

1821; Mrs Samuel Bendalack and others v Hananya Bolaffin, 28 Sivan 5582/17 June 1822 and Jacob

Castello v Mordy Benady, 29 Nisan 5585/17 April 1825.

108

‘[C]omplaints or disputes’ seems to be a reasonably straightforward replacement for

the earlier phrase ‘doubts and disagreements.’ The new phrase ‘offences or for debts’

is explained in Ascama 14 of 1784, which provided that ‘any persons of our

congregation [who] have differences or disputes, whether from offences or injuries

received, or for debts or disagreements in accounts’ were to bring their disputes to the

Mahamad before litigating before non-Jewish authorities. The reference to ‘debts’

reflected the prevalence in the Livros of mainly small debt collection disputes that

congregants either brought to the Tribunal or to the courts of request. The reference to

‘offences’ probably also reflected the many reputational disputes documented by the

Livros, e.g., quarrels between spouses, relatives and neighbours where insults,

slanders and accusations gave ‘offence’ or potentially injured reputations.36

A more intriguing reading of ‘offences’ is that it alluded to criminal acts committed

by congregants against one another. Historically, criminal matters appeared separately

in the Ascamot, beginning with the 1664 Ascamot, which provided that the community

would not intervene to free Jews who committed ‘robberies, frauds, or other untoward

things… or criminal acts of bad repute’, and would leave them to be judged by the

‘laws of the Kingdom’.37 As we saw with ‘debts’, ‘offences’ was qualified by Ascama

14, the provisions of which clarified that the Mahamad did claim authority over some

criminal matters. Its preamble referred to ‘offences, violence and contentions’ that

occurred in the Synagogue itself and its immediate environs, which the community

considered were ‘necessary and laudable to avoid…that by our union we may render

36 For ‘defamatory’ accusations, see LMA/4521/A/01/21/005, Jacob Bensaquen v David Abensar, 10 Elul 5582/27 August 1822; For accusations against women of adultery, LMA/4521/A/01/21/002,

Selomon Mendoza v his wife, 16 Adar 5541/13 March 1781; LMA/4521/A/01/21/004, Wife of Jacob

da Fonseca Pimental v wife of Isaac de Abraham Nunes Martines, 28 Tisri 5558/18 October 1797;

LMA/4521/A/01/21/005, Wife of Abraham de David Mendoza v Buena Habilho, 26 Nisan 5576/24

April 1816 and Wife of Masaod Mijara v Wife of Samuel Costa, 29 Nisan 5585/17 April 1825. Most

accusations were made by women of women, following a pattern in English society. See Laura

Gowing, "Gender and the Language of Insult in Early Modern London", History Workshop 35 (1993),

1-21: 19. 37Ascama 35, Barnett, El Libro De Los Acuerdos, 12. See also Ascama 28, Congregation of Spanish

and Portuguese Jews of London, Ascamot of 1784, 122. Still in force as Ascama 23 in Ascamot of

1831, 110. For refusal to hear a ‘major’ crime allegation, see LMA/4521/A/01/21/002, Henriques

don Fernando v Judith Romano and Sarah Jullião, 26 Nisan 5542/10 April 1782. cf. LMA/4521/A/01/21/003, Abraham de Joseph de M Nunes Martines v Hanah Albujeri¸26 Iyar

5551/30 May 1791. The Mahamad refused permission to go to the courts concerning an accusation

that physical violence led to a miscarriage of a baby. On Jews and crime, see Endelman, Jews of

Georgian England, 192-226; Avinoam Yuval-Naeh, "Foreigners at the Gallows: Representing

Jewishness in 18th Century London Crime Literature", Historia: Journal of the Historical Society of

Israel (2012), 55-80; Karen A. Macfarlane, "The Jewish Policemen of Eighteenth Century London",

Journal of Modern Jewish Studies 10 (2011), 223-244.

109

ourselves esteemed by the nation amongst whom we live’. Ascama 14 (1) defined

‘violence’ as to ‘strike, or lift [a] hand to strike, or ill treat [sic] in any manner, any

other person’. These were all common assaults actionable before a magistrate.38

Ascama 14(2) then mentioned ‘offences’ in the context of describing those disputes

which congregants were forbidden from ‘summon[ing] or arrest[ing] one another, or

commenc[ing] a suit in any court of justice, without first citing the party before the

Mahamad’. Reading sub-paragraphs 1 and 2 together, it is apparent that the Mahamad

claimed a limited jurisdiction over minor crimes and required victims of assault to

complain to them first before involving the non-Jewish authorities.39 In this period,

minor crimes were frequently prosecuted only when individuals complained to the

authorities and insisted that the perpetrator be prosecuted.40 The claim to jurisdiction

over minor crimes was omitted from the 1850 Ascamot, in which Ascama 5(7) only

preserved the reference to congregants not ‘commenc[ing] a suit in any court of

justice’. These words alluded to civil proceedings only. The Mahamad’s jurisdiction

to hear ‘complaints or disputes… whether for offences or for debts’ remained

operative even until the 1906 printed edition of the Ascamot.41

The Disputes Ascama was a formal expression of the Mahamad’s dispute resolution

function, which, despite its various iterations over two centuries, remained relatively

stable and precise. Once the Mahamad moved away from the neutral stance of the

1664 Ascamot, at least in theory, the Mahamad were to function as mediators who

actively assisted congregants to settle their disputes. When mediation failed, the

Mahamad had the additional responsibility of persuading the disputants to select

arbitrators, who separately from the Mahamad convened a formal arbitration panel to

adjudicate the underlying dispute. And, where both mediation and arbitration failed,

the disputants retained the right to litigate in non-Jewish courts, subject to first

obtaining the Mahamad’s permission to do so. In the next section, I examine the

reality of the Mahamad’s approach to dispute resolution when sitting as the Tribunal,

38 Both magistrates and Mahamad struggled to resolve ongoing physical and verbal violence between

congregants. See LMA/4521/A/01/21/005, David Bensusan v Jacob Fernandes and others, 26 Tebet

5588/15 January 1828. 39 LMA/4521/A/01/21/005, Widow of Abraham Torres v Widow of Emanuel Cortissos, 25 Veadar

5581/29 March 1821, permission to obtain a breach of the peace warrant for ill-treating the plaintiff’s

sister. 40 LMA/4521/A/01/21/005, Wife of Isaac Bibas v Isaac [], 29 Tebet 5586/8 January 1826. Allegation

of assault. The Mahamad ‘recommended them to leave their differences to arbitration in default of

which the parties were at liberty to take any steps they pleased.’ 41 Laski, Laws and Charities, 30.

110

as documented in the Livros. Case notes discussed or footnoted reflect typical

litigation patterns, though I also highlight some atypical or even exceptional cases

that merit consideration to provide a nuanced representation of the richness and

variety of disputes heard by the Tribunal.

3.4 Mediation, adjudication, and the advantages of settlement at the Tribunal

Applying Roberts’s three-stage processual approach to the Livros case notes, I

analysed whether it was possible to discern a deliberate and considered methodology

in how the Mahamad managed dispute resolution. Did the Livros indicate that the

Tribunal drew a distinction between its members functioning as neutral mediators

who acted as a go-between for disputants, or active mediators who themselves

suggested solutions to them? When mediation was unsuccessful, did the members of

the Tribunal then act as adjudicators to impose a solution on the parties, based on a

claim to adjudicatory authority derived from the Ascamot? Or did they insist on the

parties themselves selecting independent arbitrators (who could be drawn from the

Tribunal’s panel) to arbitrate their dispute?

I noticed that there was a consistency in the language of the Livros case notes across

various record keepers that suggests at least some measure of appreciation on the

part of the Tribunal that different strategies were available to it to achieve a

settlement, depending on the circumstances. Three broad categories can be

distinguished. Firstly, cases where disputes were settled by agreement between the

parties or where the Tribunal acted as neutral umpire or active facilitator of a

compromise. These records used ‘se ajustou’, which has several meanings in

English, reflected in the English records using ‘agreed’, ‘adjusted’ and ‘settled’ for

the same category of cases. Secondly, there are cases where the Tribunal imposed a

solution on the parties acting as an adjudicator. Here the Portuguese case notes use

the verb ordenar and the English records, ‘ordered’. Thirdly, there are cases notes

that use the verbs resolver (in the English records ‘resolved’) or recomendar (in the

English records ‘recommended’), which are more ambiguous as to whether the

Tribunal functioned in these cases as mediators or adjudicators. Overall, these

language choices suggest that the record keepers of the Livros valued noting whether

111

the parties themselves agreed to a settlement or whether the Tribunal imposed a

solution.

However, the Livros’ primary purpose (at least in relation to debt collection) was to

function as an accurate record of the financial aspects of claims, counterclaims, and

agreed settlement figures, and any further information was of secondary importance.

This explains why so few cases make explicit the to-and-fro of the negotiating

process between the parties and the potentially shifting patterns of intervention of the

Tribunal. The typical pattern for small debt disputes appears in a 1782 case about an

unpaid meat bill, which simply states the amount claimed by the butcher, the amount

agreed to be paid by the debtor (using ‘se ajustou’), and the rate of repayment by

instalments. The negotiating process behind the solution to the dispute is

undocumented.42

Some cases notes, however, provide enough detail to analyse the parties’ negotiating

stance and the Tribunal’s role in advancing settlement. For example, a creditor

offered to make a reduction to the total sum owed and to give the debtor a receipt for

the remaining balance outstanding. The case notes state that the Tribunal considered

this a fair offer and made an order that, if the debtor did not pay the sum offered

soon, the creditor had permission to sue the debtor for the entire sum due. The

record suggests that the Tribunal’s role veered from (presumably) neutral umpire

when the creditor made his offer, to active participant in the negotiating process by

putting pressure on the debtor to agree what they regarded as a reasonable

compromise.43

Other cases suggest that the Tribunal crossed the line between acting as neutral

umpire or active participant in the negotiating process and acting as adjudicator to

impose a solution. Debtors frequently adopted the tactic of seeking to set-off a sum

42 LMA/4521/A/01/21/002, David de Saul Rodrigues v Isaac Cava, 26 Nisan 5542/10 April 1782;

David De Saul Rodrigues frequently took his debtors to the Mahamad and settled, see Ibid. Abraham

Levy, 18 Sebat 5543/22 January 1783; Salom Bensisu, 27 VeAdar 5543/31 March 1783; Isaac Perez

28 Nisan 5543/30 April 1783. For the same pattern in a complex landlord and tenant dispute involving claims and counterclaims concerning distraint against the tenant’s furniture, an outstanding

loan and unpaid rent, see LMA/4521/A/01/21/005, Joseph of Is of Jos N Martines v David of Jos N

Martines, 26 Tisry 5582/22 October 1821. Sephardi naming conventions suggest that the parties were

related but there is no indication in the case note itself of this. See Edgar Samuel, "Naming Children

after the Living or the Dead?", in At the End of the Earth: Essays on the History of the Jews of

England and Portugal (London: Jewish Historical Society of England, 2004), 3-34: 4-6. 43 LMA/4521/A/01/21/002, Masaot Boltibol v Baruh Sultan, 11 Adar 5536/[2 March 1776].

112

allegedly due to them from their creditor against the creditor’s debt claimed against

them. When brothers-in-law presented this scenario to the Tribunal, ‘it was resolved

to accommodate’ the parties by them sharing the difference between their respective

claims. Payment was made directly into the hands of a member of the Tribunal panel

and the parties gave each other receipts.44 The case notes suggest that the Tribunal

stepped into a fractious family dispute to impose what they regarded as an

appropriate outcome. However, either party could have rejected a compromise and

instead could have sought the Tribunal’s permission to sue in a civil court. Since

neither party rejected the compromise, a more nuanced interpretation of the

Tribunal’s function here was that it actively facilitated a compromise, which the

parties consensually accepted.

There are numerous examples of cases in which the creditor’s ability to sue in a civil

court with the Tribunal’s permission itself became one of the Tribunal’s favoured

bargaining tools. A creditor landlord and a debtor tenant agreed, for example, a

reduction of the outstanding rental, but could not agree a repayment schedule. When

the Tribunal stepped in to give the creditor leave to sue, the debtor reconsidered his

position and agreed the repayment proposal. Although left unstated, it is likely that

the debtor was fully aware of exposing himself to a less favourable outcome in a

civil court.45

Sometimes, the Tribunal’s only role was to act as adjudicator to impose a solution on

the parties, as a small debt case note shows. The Tribunal ordered a debtor to repay

four shillings in entire satisfaction of the creditor’s demand for six shillings and three

old pence, at the rate of one shilling per week. After the debtor defaulted, the creditor

summoned him to the Tribunal who ‘resolved’ that if the debtor did not pay five

shillings immediately, the creditor had permission to sue him. Nothing in the text

explains why this simple debt claim was not settled consensually at the first hearing.

Nor is there an explanation why the Tribunal ordered the debtor to repay a specified

amount rather than allowing the mediation to fail and to leave it to the creditor to

apply for permission to sue in a civil court. It suggests that creditors, debtors, and

44 LMA/4521/A/01/21/002, Isaac Nunes Martines v Selomoh Mendoza, 28 Nisan 5536/[17 April

1776]. See also LMA/4521/A/01/21/005, Jacob Castello v Abraham Aboaf Fonseca, 25 Kislev

5580/16 December 1819. 45 LMA/4521/A/01/21/005, Abraham Joseph v David de Mordecai Rodrigues, 25 Tamuz 5581/25

July 1821 and Masaod Meara v Abraham Racah, 27 Menahem 5588/7 August 1828.

113

the Tribunal understood how challenging it was to extract very small sums from

impecunious congregants. This nuanced approach shows that for the creditor, there

must have been some advantage to be gained from the Tribunal’s intimate

knowledge and understanding of congregants’ economic and social circumstances.

Its members knew when to step in and issue threats to persuade a reluctant payee to

settle a debt.46

The Livros bear out Roberts’s warning that correlating process with the degree of

formality with which a case was resolved is a mistake.47 Flexibility was key to the

Tribunal, which allowed it either to eschew its formal procedures entirely or to

implement them in modified form. An unusual example of this was when a

defendant failed to appear to answer a claim for a £20 debt; the Tribunal promised to

speak to the defendant informally to seek agreement to pay it within ten or fifteen

days. Since the matter did not return to the Tribunal, it can be assumed that they

successfully facilitated settlement.48 In most cases, settlements were negotiated when

all the parties were physically present in the Mahamad’s Chamber, where all

hearings took place. However, when a debtor failed to appear, and instead sent an

excuse for his non-attendance together with a repayment, the creditor initially

declined the offer but later accepted an up-front payment and the balance as

proposed.49 A formal summons to the Tribunal sometimes prompted the parties to

settle their dispute themselves informally, either before the parties were called into

the Mahamad’s Chamber,50 or after the Tribunal stayed the claim so that the parties

could settle the dispute between themselves.51 In some cases, particularly where

small amounts were at issue, the case notes reflect a sense of exasperation on the part

46 LMA/4521/A/01/21/002, Aron de Moseh Mendoza v Raphael de Samuel Torres, 26 Menachem

5543/24 August 1783; 25 Elul 5543/[22 September 1783]; See also LMA/4521/A/01/21/003, Wife of

Isaac de Daniel Rodrigues v Raphael Rodrigues Habilho; 28 Adar 5544/21 March 1784 and 25 Nisan

5544/16 April 1784 where initially the parties agreed a debt should be repaid by instalments. When

the debtor defaulted, the threat of legal proceedings was made. 47 Roberts, "The Study of Dispute", 13. 48 LMA/4521/A/01/21/002, Abraham Joshua Mendes Da Costa v Joshua Mendes Da Costa, 8 Hesvan

5544/3 November 1783. 49 LMA/4521/A/01/21/005, Abraham Shannon v Abraham Aboaf Fonseca, 29 Nisan 5580/13 April 1820. 50 LMA/4521/A/01/21/005, Moses Martin v Isaac Martin, 27 Tebet 5585/17 January 1825 and at the

same hearing, Aron Costa v Benjamin Alvarenga. 51 LMA/4521/A/01/21/002, David Zamiro v Jacob Semen, 28 Nisan 5541/23 April 1781. See also

ibid, Abraham Joshua Mendes Da Costa v Joshua Mendes Da Costa, 8 Hesvan 5544/3 November

1783, where Abraham claiming a £20 debt obtained the Tribunal’s assurance to seek the non-

appearing defendant’s agreement to repay within 10 or 15 days.

114

of a Tribunal who considered the parties unnecessarily obstructive and who decided

to leave the dispute to the parties to resolve among themselves.52 Occasionally,

disputes were referred to the Tribunal even though lawyers had been instructed, and

the Tribunal’s involvement as mediators proved vital in brokering a final

settlement.53 Even when settlement had been achieved, if the Tribunal ‘thought

proper to rehear the case’, it was prepared to recall the parties to hear more evidence

from them, even where small amounts were at issue.54

While most debt collection concerned small amounts, congregants also used the

Tribunal to collect a ‘large debt’, a term I use to refer to any debt which was above

the prevailing monetary threshold of the small debt jurisdiction of the City of

London Court of Requests. That threshold fluctuated from a maximum of 40

shillings throughout the eighteenth century, to £5 by the early 1800s, and stood at

£10 by the time its jurisdiction was abolished in 1847.55 Since the Livros do not

explain congregants’ motivations for using the Tribunal’s service, it is impossible to

say without speculation why congregants were prepared to forego the enforcement

advantages of civil proceedings, to mediate before the Tribunal. Presumably, like all

litigants, they assessed the benefits of the Tribunal’s cost-free, speedy, flexible, and

informal process against the expense, time, and complexity of civil litigation, and for

pragmatic reasons, decided that mediation was worthwhile. The Livros do indicate

that there were some congregants – such as the community’s rabbis and teachers –

who submitted to the Tribunal’s jurisdiction out of religious conviction and were

prepared to settle cases to avoid civil litigation. However, settlement became more

problematic when the ‘interpretative commitments’ of the disputants were

asymmetrical. For example, Ribi Hasday Almosnino was prepared to settle a large

debt claim when a congregant approached the Mahamad about his outstanding

indebtedness, but his widow, who sought to recover £71.25 due to her, was met by a

recalcitrant defendant who refused to settle her claim, and therefore she had no

52 See respectively LMA/4521/A/01/21/003, Rachel Halfon v Abraham Belasco, 29 Menahem

5544/16 August 1784 (pair of shoes); Jacob de Joseph Palache v the wife of Jacob Carcas, 27 Sebat

5545/7 February 1785 (a handkerchief); LMA/4521/A/01/21/005, David Mendes v David Romano, 28 Sebat 5581/31 January 1821 (purchase of goods). 53 LMA/4521/A/01/21/002, David Sarfaty v Misud Shannon, 26 Sivan 5543/26 June 1783;

LMA/4521/A/01/21/004, Joseph Sumbel v R. Hasday Almosnino, 27 Hesvan 5558/16 November

1797; 6 Tebet 5558/25 December 1797. 54 LMA/4521/A/01/21/005, Widow Phillips v Joseph de I Belasco, 28 Sebat 5587/25 February 1827. 55 Finn, Character of Credit, 236, 244; W. H. D. Winder, "The Courts of Requests", L. Q. Rev. 52

(1936), 369-394: 383.

115

alternative but to seek permission to sue in a civil court.56 Exceptionally, a landlord

revealed his commitment to going beyond the requirements of the Disputes Ascama

when he applied to the Tribunal for permission to arrest an absconding tenant who

owed him £16.16, although permission was not required in such urgent cases.57

Sometimes, the margin of dispute between the disputants was so small that

attempting mediation before formal litigation was a sensible tactic for both parties.

For example, the dissolution of a partnership stalled over a margin of £2 in alleged

unpaid rent owed by the defendant to the plaintiff. The dispute was further

complicated by allegations of rent owed by a sub-lessee to the defendant. The

Tribunal ‘directed’ a settlement whereby the sub-lessee was to repay outstanding

rent direct to the plaintiff, with the defendant to settle what he owed by instalment

payments. The settlement held until, six months later, the defendant defaulted on his

instalment payments, at which point the Tribunal gave the plaintiff leave to sue in a

civil court.58

Pragmatic considerations occasionally brought non-Jews as plaintiffs to the Tribunal

since its communal authority and mediation skills could facilitate settlement of

potentially lengthy and expensive litigation. In an unusual case concerning a lost

India bond valued at £100, a non-Jewish plaintiff complained to the Tribunal that the

defendant’s son had found the bond. The case notes record that the Tribunal had

‘strong suspicions’ that the son knew of the bond’s whereabouts, and the Tribunal

adjourned the hearing for the plaintiff to provide witness evidence. At the resumed

hearing five days later, the defendant again denied knowledge of the bond, but

suggested that, if the plaintiff advertised its loss and offered a £50 reward, it might

be forthcoming. The plaintiff then offered a £31.10 reward, and ‘after some

56 LMA/4521/A/01/21/002, R Salom Buzaglo v R Haim Benhadam, 20 Sebat 5534/[1 February 1774].

See also LMA/4521/A/01/21/004, The Mahamad on behalf of Harrieta Aboab v R Hasday Almosnino,

28 Tamuz 5558/12 July 1798; Naphtali Paz de Leon v Hazan Daniel Cohen de Azevedo, 29 Sebat

5562/1 February 1802. cf. Widow of Ribi Hasday Almosnino v Moseh de Mar, 27 Adar 5563/21

March 1803, where the defendant refused to settle. 57 LMA/4521/A/01/21/002, Aron Carcas v Emanuel Bernal, 13 Iyar 5538/10 May 1778. cf. Abraham

Lopes Fernandes v Executors of Moses Israel da Fonseca, 12 Tamuz 5542/24 June 1782, where the executors’ arrest of Fernandes was excused because urgent action was essential to recover £240 on

behalf of the estate. 58 LMA/4521/A/01/21/002, Jacob Cohen v David Ladesma, 28 Nisan 5533/[21 April 1773]; 30 Tisry

5534/[17 October 1773]. cf. LMA/4521/A/01/21/003, Mordy Paz de Leon v Abraham Dias, 28 Tamuz

5545/6 July 1785. The plaintiff claimed a balance of account due of £243; the defendant said only £3

was due. Given the huge discrepancy, the Tribunal gave permission to sue. It often declined to

mediate a case when there were irreconcilable variations in evidence.

116

representation from [the Mahamad]’, the defendant ‘retired’ to fetch the bond. It

was returned the next day and the reward paid.59

Finally, there are the small number of cases involving wealthy merchants who

voluntarily agreed to arbitrate disputes (discussed separately below),60 and cases

arising from international trading relationships or the administration of estates in

which commonalities such as shared language, close social and kinship ties, and

familiarity of mediation procedures promoted settlement of higher value disputes.61

3.5 Voluntary arbitration as an alternative to mediation or adjudication

According to Francesca Trivellato, ‘arbitration was merchants’ favorite form of

dispute resolution.’62 Only one formal arbitration is recorded in the Livros, though

other cases indicate that such arbitrations occasionally occurred. These cases

establish that, as well as mediating or adjudicating disputes, members of the Tribunal

were separately appointed to conduct formal arbitrations on behalf of congregants.63

The recorded formal arbitration occurred in an international trading dispute about

rough diamonds. On 11 November 1782, Baron D’Aguilar (Ephraim Lopes Pereira),

acting as procurator for Abraham Carvalho and the Company of Livorno, called

59 LMA/4521/A/01/21/002, Mr Bowman v Isaac Gomes Da Costa, 3 and 8 Hesvan 5537/16 and 21

October 1776. Few non-Jews initiated claims at the Tribunal. Bowman’s likely claim would be in

detinue sur trover, pleading that his wife had lost the bond and that Da Costa’s son had found and unlawfully detained it. See Baker, Introduction, 419. 60 See, for example, cases involving Baron D’Aguilar: LMA/4521/A/01/21/002, Ephraim Lopez

Pereira (Barão D’Aguilar) v Sr. Abraham Haim Franco, 5 and 12 Kislev 5543/11 and 18 November

1782; Hananel and Benjamin Lopes Pereira v Ephraim Lopes Pereira, 1 Adar II 5543/5 March 1783. 61 LMA/4521/A/01/21/002, Isaac Abuab v Selomon de Abraham Cohen, 16 Elul 5541/6 September

1781 (debt of £78). For other international cases, see Moseh Henriques Valentine on behalf of

Emanuel Monforte of Jamaica v Phineas Netto, 27 Kislev 5534/[12 December 1773];

LMA/4521/A/01/21/004, Aaron Alvares v Moseh da Veiga Henriques, 27 Menahem 5563/15 August

1803; LMA/4521/A/01/21/005, Isaac Sebag v Abraham de Joseph Sarqui, 4 Kislev 5576/6 December

1815. For non-kinship relationships between international traders relying on bonds of mutual trust

and reputation as a basis for settling disputes, see Vanneste, "Unpaid Diamonds". 62 Trivellato, Familiarity of Strangers, 261. 63 See LMA/4521/A/01/21/003, Abraham Pimento and Hananel Esforrio v Aaron Cohen of Berberia,

18 Elul 5552/3 September 1792, which mentions Senor Bendalack serving as arbitrator. For the

importance to international merchants of an orderly trading environment governed by social control

mechanisms, see Roitman, The Same but Different?, 11-12. See also two marriage cases in which

arbitration was considered: LMA/4521/A/01/21/004, Joseph Brandon v his wife, 27 Adar 5563/21

March 1803; LMA/4521/A/01/21/005, Johanan de Daniel Dias v Moses Peres, 29 Iyar 5581/31 May

1821 and 25 Tamuz 5581/25 July 1821.

117

Abraham Haim Franco to the Tribunal.64 The parties agreed and signed the basic

terms of an arbitration agreement in which they appointed the three-man panel of the

Tribunal and the Gabay to act as arbitrators, and consented to abide by the

arbitrators’ decision. The terms of the formal arbitration award are documented in

the following week’s Livros case notes. The award, which was signed by the

arbitration panel, stated that they were appointed as arbitros (arbitrators) to settle the

differences between the named parties and that the arbitrators ‘judged’ that Franco

was required to pay the sum of £213 18s 3d to settle his accounts.65 Whether the

award was made a rule of court under the Arbitration Act 1698, which would have

entitled the parties to enforce it through the civil courts if necessary, is unknown.66

Relying on mutual trust alone to secure compliance with the award had the

advantage of preserving the secrecy of the arbitration and its outcome.

Formal arbitration was ideal for cases concerning a financial account between the

parties. Other cases that involved international merchants proved unsuitable for

arbitration. Also on 11 November 1782, Baron D’Aguilar called Joseph Jesurun

Rodrigues (also known as Joseph Salvador) to the Tribunal, when he requested

permission to sue Rodrigues in a civil court. The case was of a nature (unspecified

in the case record) that prevented it being mitigated at the Tribunal and, since

Rodrigues’s agreement was forthcoming, the Tribunal granted the permission

sought.67

Two Livros cases evidence the Tribunal’s familiarity with English arbitration

procedures. A 1789 debt case records the Tribunal’s requirement that a debtor ‘sign

Bonds…and give proper security for the performance’ of the arbitration.68 An 1808

case mentions the selection of named arbitrators to an arbitration panel ‘with liberty

64 The Franco family were London-based diamond importers: Trivellato, Familiarity of Strangers,

241; Samuel, "The Mahamad as an Arbitration Court", 13. 65 LMA/4521/A/01/21/002, Ephraim Lopez Pereira (Barão D’Aguilar) v Sr. Abraham Haim Franco,

5 and 12 Kislev 5543/11 and 18 November 1782. 66 On the Arbitration Act 1698 and rules of court, see Horwitz and Oldham, "John Locke". 67 LMA/4521/A/01/21/003, Senor Ephraim Lopes Pereira v Senor Joseph Jesurun Rodrigues, 5 Kislev 5543/11 November 1782. For Joseph Salvador’s history, see Maurice Woolf, "Joseph

Salvador 1716—1786", Transactions (Jewish Historical Society of England) 21 (1962), 104-137.

Salvador’s niece, Sarah Mendes Da Costa (d. 1763) was the Baron’s first wife: see ibid., 108;

Hyamson, Sephardim, 102. 68 LMA/4521/A/01/21/003, Henriques Rodrigues Mercado v Jacob de Abraham Attias, 9 Iyar 5549/3

June 1789; Jacob Benaim v Attias. Attias’ letter agreeing to submit to arbitration is in

LMA/4521/A/01/03/004, Minutes of the Mahamad, pp. 59-60.

118

to choose their umpire in case of a difference of opinion.’69 The Mahamad resorted

to formal arbitration to resolve its own internal contractual disputes with its

suppliers. In 1823, a dispute about sub-standard coal was remitted to three named

arbitrators, an arbitration bond was provided but a formal arbitration proved

unnecessary because the matter was settled.70

All these cases expressly mention ‘arbitration’ or ‘arbitrators’, but other records refer

to louvados (assessors or valuers), whose role was to calculate financial loss rather

than to determine liability.71 Although formal arbitrations were conducted by the

wealthy elite, the Tribunal sometimes recommended arbitration to less prosperous

congregants.72 A dispute concerning six claims totalling £9.12.3 reveals the nuanced

interconnection between the Tribunal acting as mediators and arbitrators in the same

dispute. Acting first as mediators, the Tribunal heard the parties’, and their

witnesses’ oral evidence, after which the parties left the Chamber while the Tribunal

discussed the case. When the parties returned to the Chamber, they declared

themselves satisfied with the arbitration by the Tribunal. The text then records the

decision of the Tribunal, presumably now acting as arbitrators, binding the parties to

their decision on what was due and the defendant to an instalment repayment

schedule.73 Some arbitrations also took place before a single arbitrator outside the

Mahamad’s Chamber.74 It seems that the parties considered themselves bound by

these decisions even though they had not signed an agreement to that effect

complying with English arbitration principles.

69 LMA/4521/A/01/21/005, Abraham Gomes v Abraham Brandon, 9 Hesvan 5569/30 October 1808. 70 LMA/4521/A/01/03/008, Minutes of the Mahamad, 1 Elul 5583/7 August 1823, dispute with Mr

Moses Franco. 71 LMA/4521/A/01/21/004, Abraham de D. Teixeira v Abraham Rodrigues Brandon, 3 Tebet 5557/2

January 1797; Moses de Eliau Lindo v Abraham H Semah Cortissos, 27 Kisleva 5563/22 December

1802; Joseph de Jacob Israel Brandon v his wife, 27 Adar 5563/21 March 1803; Committee Members

of Hozer Holim v Mordecai Gomes Soares, 23 Iyar 5563/15 May 1803. 72 LMA/4521/A/01/21/002, Jacob Robles v Moseh Fernandes, 30 Sebat 5533/[23 February 1773] and

28 Nisan 5533/[21 April 1773]. LMA/4521/A/01/21/002, Lazaro Ascole v Masahod Boltibol, 25

Hesvan 5537/[27 November 1776]; Jacob Faxima v Judah Israel, 29 Hesvan 5542/[17 November

1781]. In the latter case, the dispute concerned the sale of clothes 25 years previously. 73 LMA/4521/A/01/21/003, Abraham Benjamin v Luna Messias, 28 Nisan 5551/2 May 1791. 74 LMA/4521/A/01/21/005, Jacob Senior Coronel v Senor Genex, 2 Sebat 5576/1 February 1816 in

which it was proposed that the matter ‘be left to arbitration of our Secretary’; cf.

LMA/4521/A/01/21/005, Moseh Massias v Pinhas Lara, 28 Tamuz 5566/14 July 1806 and Abraham

Cardozo Corronel v Abraham Israel Racah, 26 Sivan 5567/2 July 1807, both appearing to refer the

dispute to Masaod De Levante. See Phillips v Saltiel, Menachem 5599/6 August 1839 where the

statement ‘referred by consent to Mr Aron Valentine for his consideration & decision’ (emphasis

added) suggests reference to a single arbitrator.

119

3.6 Internal challenges: balancing adjudicatory, administrative, and charitable

obligations

Securing justice against an impecunious debtor was frequently an intractable

problem for creditors. These debtors were either genuinely impoverished or the

working poor, who struggled to finance their ordinary living expenses and the small

businesses from which they earned their livelihood.75 Some impoverished

individuals received financial assistance through sedaca payments, either because

they were eligible to be placed on the Sedaca Roll and receive a regular stipend, or

because their desperate need warranted one-off sedaca payments.76 The ‘industrious’

or ‘deserving’ poor qualified to receive small business loans from the Ma’asim

Tobim, a charitable society dedicated to facilitating employment opportunities for

congregants.77 These debtors risked imprisonment in houses of correction together

with general criminals because they were unable to repay their debts.78

Faced with a plea of poverty, the Tribunal had to assess whether the threat of civil

legal action might persuade a debtor to agree a repayment schedule with the creditor,

or whether the debtor was genuinely poverty stricken. Exceptionally, a member of

the Tribunal responded to this problem by reimbursing the creditor on the spot.79

Usually, the Tribunal opted to order that instalment repayments be made from the

debtor’s sedaca direct to the creditor.80 Orders to withhold sedaca payments were

75 For an excellent discussion of poor disputants, see Kerner, "Shirts, Biscuits". 76 Those entitled to sedaca as of right were, broadly, widows of rabbinical staff, people aged over 60

years, refugees fleeing the Inquisition. 77 Julia R. Lieberman, "New Practices of "Sedaca": Charity in London's Spanish and Portuguese

Jewish Community During the Eighteenth Century", in Charity in Jewish, Christian, and Islamic

Traditions, ed. Julia R. Lieberman and Michal Jan Rozbicki (London: Lexington Books, 2017), 105-

129: 109; "Few Wealthy and Many Poor: The London Sephardi Community in the Eighteenth-

Century", Ler História 74 (2019), https://journals.openedition.org/lerhistoria/4614. 78 Finn, Character of Credit, 209; 235. 79 LMA/4521/A/01/21/003, Agar de Jos de Abraham Nunes Martines v Abigail de Isaac Nunes

Martines, 27 Hesvan 5545/11 November 1784. 80 LMA/4521/A/01/21/002, Benjamin Habilho da Fonseca v Judith Romano, 25 Iyar 1782/9 May 1782 (9 shillings); LMA/4521/A/01/21/003, Selomon Mendoza v Aron de D Mendoza, 28 Tamuz

5553/8 July 1793 (16 shillings); LMA/4521/A/01/21/004, Abraham Azar v Abraham de Mordecai

Levy, 28 Hesvan 5559/7 November 1798 (unspecified amount repayable by 6 old pence per week);

Josian de Chava v Jacob Palache, 27 Menachem 5561/6 August 1801 (£1.1);

LMA/4521/A/01/21/005, Aaron Alexander v widow Miranda, 25 Sebat 5577/12 February 1817

(unspecified, repayable from sedaca in the event of default); Solomon Andrada v Leah Lara, 28

Menahem 5587/21 August 1827 (rent arrears of 20 shillings).

120

also useful to secure the attendance of debtors who initially evaded appearing at the

Tribunal.81 The withholding or diverting of sedaca payments provides further insight

into the complexities the Mahamad faced in divorcing their general authority to

decide sedaca matters from their dispute resolution functions sitting in the Tribunal.

At the liability stage, the Tribunal acted (per Roberts’s continuum) either as neutral

umpire, active mediator, or adjudicator.82 When structuring repayment was at issue,

however, it was inevitable that the boundaries between the Mahamad’s dispute

resolution and executive roles became blurred. If, however, one sees this as the

enforcement stage after a court judgment, then the Tribunal’s redirection of sedaca

payments is analogous to court powers of execution against the body or goods of a

debtor, which in this communal-justice space was transformed into an effective and

practical communal sanction that promoted repayment of debts.83

For the Mahamad, as for English society generally, such solutions did not address

the underlying problem that many small debtors had complex interconnected

creditor/debtor relationships with family, business partners, traders, and neighbours

within their community. Interconnected familial lending was ubiquitous among the

industrious poor; for example, when the butcher Isaac de Daniel Rodrigues called

Isaac Lopes to the Tribunal about an unpaid debt of £1.8.6, it emerged that Lopes

had pledged credit for his son-in-law Abraham Mendoza, who was himself a

recipient of a 20-shilling loan from the Ma’asim Tobim. Mendoza refused to repay

anything until he had recovered ‘some demands he has against his relations’. Lopes

81 LMA/4521/A/01/21/003, Eliau Paz de Leon v Benjamin Habilho Fonseca, 27 Sivan 5544/16 June 1784. For the full process see, Ribca daughter of Moses Penha v Judith de Menachem Romano, 28

Sebat 5548/8 January 1788 (original complaint) and 27 Adar 5548/[6 March 1788] (formal apology

for failure to obtain prior permission), and in the interim formal order of suspension of Sedaca and

fine in LMA/4521/A/01/02/002, Livro de Ordems e rezolucoems dos S[enhor]res do Mahamad,

[n.p.]: see 24 Sebat 5548/6 February 1788. See also LMA/4531/A/01/21/002, Abraham Dias v

Abraham Belasco, 26 Tebet 5538/[unstated]; Benjamin Habilho Da Fonseca v David Zamiro; Same v

widow of Jacob Henriques Julliao, 25 Tebet 5539/13 January 1779. 82 Roberts, "The Study of Dispute". 83 A writ of fieri facias instructed sheriffs to execute a court judgment against a debtor’s chattels: see

Baker, Introduction, 74. Seizure of chattels was the preferred method for execution of judgments by

the 1830s, and arrest against the body of the debtor was used when this failed to realise sufficient

assets: see Clinton W. Francis, "Practice, Strategy, and Institution: Debt Collection in the English Common-Law Courts 1740-1840", Nw. U. L. Rev. 80 (1985), 807-955: 819-820. cf. the equitable

jurisdiction of the courts of request, where post-judgment execution against a debtor’s chattels was

criticised as less effective than a short period of imprisonment: see Journals of the House of

Commons, Vol. 37, 10 April 1780, pp.764-767 quoted and discussed in Finn, Character of Credit,

217. Courts of request lobbied against a proposal to abolish imprisonment for small debts, believing

that the repayment of small debts by instalments coupled with short terms of imprisonment was more

effective against the ‘lower Sort of People’.

121

agreed to pay the 20 shillings and the Tribunal directed that the remaining 8/6 should

be paid ‘out of Mendoza’s Sedaca’. Abuses in the system did not go unnoticed or

unpunished, as an 1819 case attests. When the Tribunal discovered that a debtor had

failed to repay a small debt under a settlement agreed in 1817, they directed the

debtor’s sedaca to be stopped until it was repaid.84

The Ma’asim Tobim frequently appeared as plaintiff before the Tribunal to collect

outstanding loans. The Ma’asim Tobim was financed from voluntary contributions

from congregants rather than from the annual tax levied on members that funded the

Sedaca Roll and one-off sedaca payments.85 When its officers summoned borrowers

to the Tribunal to recover unpaid loans, they were seeking to protect the financial

viability and integrity of their institution and the trust imposed in them by their

voluntary contributors, rather than the general sedaca funds of the community.86

During the nineteenth century, the Ma’asim Tobim began to consolidate all their

outstanding loan cases at a single session of the Tribunal. Consolidating cases into a

single session was a known tactic of general trade creditors which enabled them to

control the amount of time spent in court hearings. Listing debts together also

demonstrated to civil courts the cumulative effect of small debts on a business’s

financial liability.87 Despite these advantages to bulk collection in civil courts, the

Mahamad’s intimate knowledge of the Ma’asim Tobim’s charitable model and the

background of their borrowers lent the Tribunal’s process unique advantages. The

Tribunal was prepared to resolve loan guarantees informally without the guarantor’s

presence in their Chamber, unlike civil courts which would have insisted that

guarantors be made party to legal proceedings.88 Guarantor claims, which made up a

substantial proportion of these bulk list hearings, were often deferred so that either

84 LMA/4521/A/01/21/005, Abraham Benjamin v Semuel Benzadon, 1 Tebet 5578/8 December 1817;

29 Iyar 5579/24 May 1819. 85 Lieberman, "New Practices", 113-115. 86 When officers of the Ma’asim Tobim guaranteed loans, they sought repayment in their capacity as

guarantors of the society’s funds rather than as individuals. See LMA/4521/A/01/21/002, Abraham

Henriques Jullian v Jacob Finse, 26 Iyar 5540/31 May 1780; LMA/4521/A/01/21/004, David Abarbanel as Treasurer of the Maasim Tobim v Jacob Gomes da Costa, 23 Adar 5564/6 March 1804;

LMA/4521/A/01/21/005, David Abarbanel Lindo as Director of Hevra de Hozer Holim v Moseh de []

Dias, 28 Menahem 5566/12 August 1806. cf. Kerner, "Livro De Pleitos", 277 n.71. 87 Consolidation of debts became commonplace in courts of request: see Finn, Character of Credit,

241. 88 All loans needed a guarantee from either a named guarantor or from the borrower’s personal

allowance from the Sedaca Roll. See Lieberman, "New Practices", 118.

122

the Mahamad or the Ma’asim Tobim could approach the guarantor directly.89 At an

1822 session, the Ma’asim Tobim agreed to apply to the loan guarantor in 10 out of

the 23 listed cases for part or full repayment of the outstanding loan. The same

session shows that pursuing borrowers before the Tribunal had a high success rate;

of the 23 debtors at this session, only one had to be summoned again to the Tribunal

and that was three years later, possibly not even for the same outstanding loan.90

Another legal advantage of collecting loans before the Tribunal was that technical

legal rules could be ignored, thus enabling the collection of long-outstanding debts

of 10 and 16 years, that may have been statute-barred in civil courts.91 There were, of

course, pitfalls to the Tribunal’s process, as demonstrated by an 1827 bulk collection

of 13 outstanding loans. Only five borrowers appeared before the Tribunal, of whom

just three settled their loan. The Mahamad’s familiarity with the precarious position

of some borrowers worked to their advantage, as in the case where the Tribunal

recommended that the Ma’asim Tobim waive their claim against a widow because

she had made a part payment of the loan ‘even after her husband’s death and she was

quite poor.’92 Such magnanimity was inconsistently applied, however, because the

Tribunal was prepared to grant the Ma’asim Tobim leave to sue borrowers in civil

courts.93

The difficulty of separating the Mahamad’s duty to provide dispute resolution and its

general executive functions is particularly evident in relation to the provision of

89 LMA/4521/A/01/21/005, Treasurer of Mahasim Tobim v 23 named defendants, 28 Sivan 5582/17

June 1822. The Mahamad to apply to ‘Mr Samuel Bensusan of Paris’ as guarantor; recommendation that the Ma’asim Tobim apply to ‘Mr Moses Montefiore who stood security for the loan’ of a married

woman whose husband had deserted her. 90 Ibid. Jacob Ben Sabat was summoned for his outstanding loan of £4 and he appears again on 28

Sebat 5586/5 February 1826 for £2.5. 91 Under the Limitation Act 1623 (Act of 21 James 1., c.16), debts had to be collected within six years

of the date the debt action accrued. See Henry Thomas Banning, A Concise Treatise on the Statute

Law of the Limitation of Actions [...]. (England: Stevens and Haynes, 1877), 11. For limitation of

action defences in the courts of request, see Hutton, Courts of Request, 32; Brady, The New Law of

the City Court of Requests, 11. In 1835, courts of request accepted limitation of action as a pleaded

defence. 92 LMA/4521/A/0121005, Treasurer of Mahasim Tobim v widow Palache, 28 Sebat 5587/25 February

1827. 93 Ibid. Mr E M Pereira Treasurer of the Maasim Tobim v 38 named defendants, 28 Adar 5589/3

March 1829. Bulk applications continued until 1850. See LMA/4521/A/01/21/006, W M Gomes

Head of M Tobim v 5 defendants, RH Hesvan 30 Tisry 5600/8 October 1839; Daniel Gomes as Samas

of Maasim Tobim v 11 defendants, RH Sebat 26/7 Tebet 5600/2 January 1840; Maasim Tobim v 10

defendants, Elul 28 Menahem 5600/27 August 1840; Maasim Tobim v 17 defendants, RH Tamuz

5609/18 June 1849; Maasim Tobim v 11 defendants, RH Ab Elul on 30Ab/1 Elul 5610/8 August

1850.

123

housing for the poorest and most vulnerable members of the congregation.94 They

were housed in a ‘squalid space with unsanitary conditions’ near the synagogue in

Bevis Marks, which was known as la fabrica.95 Tenants of these synagogue

buildings sometimes used the Tribunal as mediators to resolve their incessant

quarrels, and peace was sometimes achieved through a threat of eviction.96 Problems

arose when the Mahamad, as landlord to these occupants, was put into a position of

judge in its own cause. When the Mahamad attempted to enforce its general

disciplinary authority over occupants, it found itself constrained by civil legal

protection of tenants. Eviction proceedings in the Lord Mayor’s Court against the

widow of David Paz Cardozo for (unspecified) outrageous behaviour failed on the

grounds that the court did not have power to evict.97 The court’s reasoning is

undocumented, but the Mahamad’s later correspondence with their solicitor, in

which they asked him ‘to advise on the further steps to be taken, to vindicate the

authority of the Mahamad over persons inhabiting our Buildings’, suggests that the

court applied the almshouse legal framework to the synagogue buildings. This

framework gave landlords a right to evict occupants only when they could prove that

they had consented to specific regulations governing their occupancy.98 Since there

were no formal regulations governing occupancy, eviction could not proceed. The

Mahamad briefly considered evicting everyone and drawing up new regulations to

which new tenants would consent but changed their minds following a petition

signed by the existing tenants.99

94 Debt disputes concerning the annual contracts to make matzot for Passover also challenged the

boundaries between adjudicative and administrative functions. See in the Livros,

LMA/4521/A/01/21/005 Jacob da Fonseca Brandon v Abraham de Henriques Rodrigues, 28 Sivan

5574/11 June 1814 and in LMA/4521/A/01/03/007, Minutes of the Mahamad, 27 Sivan 5574/15 June

1814. 95 Lieberman, "Few Wealthy". 96 For threat of eviction see LMA/4521/A/01/21/005, Leah Labat v Dove Mendes, 27 Hesvan 5582/21

November 1821, where the Mahamad ordered the parties ‘to live peaceably & quite [sic] together, or

else they will lose the rooms’. 97 LMA/4521/A/01/03/011 (1844-1857), Minutes of the Mahamad, 29 Iyar 5612/12 May 1852, 1 Elul

5612/6 August 1852; 24 Elul 5612/18 September 1852 (pp. 296-301). Alms house residents suing other congregants was not unknown: see LMA/CLA/038/03/003, Court of Request Summons Book,

Saturday 30 September 1780, Daniel Valentine and Moses Benjamin (Synagogue Alms House). 98 Alannah Tomkins, "Retirement from the Noise and Hurry of the World? The Experience of

Almshouse Life", in Accommodating Poverty the Housing and Living Arrangements of the English

Poor, c. 1600–1850, ed. Joanne McEwan and Pamela Sharpe (2011), 263-283. 99 Regulations were in existence by 1857: LMA/4521/A/01/03/012 (1857-1874), Minutes of the

Mahamad, 27 Iyar 5617/21 May 1857, p. 7.

124

The Paz Cardozo eviction case challenged the Mahamad’s assumption that the

administration of their housing provision for the poor fell under their exclusive

domain. It illustrated that the Mahamad’s function evolved to accommodate English

legal norms that overlapped with its claimed authority. Rather than relying on

general disciplinary authority over occupants, the Mahamad was forced to accept

that, in providing accommodation to the poor, they stood in no different legal

relation to its occupants than other voluntary charitable associations which housed

the poor.100 Blanket assertions in the Ascamot of an overarching disciplinary power

over all congregants were inadequate to ground eviction proceedings. To enforce its

power over congregants who deviated from acceptable behavioural norms in this

context, the Mahamad had no alternative but to adapt to the civil legal framework

that governed almshouses.

4 Vision v reality: the effectiveness of the Tribunal

The key external challenge to the Mahamad’s vision for its Jewish judicial space was

the open access to justice model, the history of which I have outlined in Chapter III.

To apply Teubner’s legal pluralism theory, when congregants chose to litigate in

non-Jewish courts, they created diverse communicative opportunities for the

exchange of norms under the binary legal/illegal between those courts and the Jewish

judicial space.101 As to internal challenges, the effectiveness of the Mahamad’s

dispute resolution enterprise was only as strong, to borrow Cover’s concept, as the

interpretative commitments of congregants to the vision of a Jewish judicial space

articulated in the Ascamot. Although as we have already seen, this vision evolved

over time, two procedural matters remained stable: firstly, the requirement that

plaintiff congregants submit their disputes to the Tribunal and, secondly, that they

only venture into the English legal system when the Tribunal gave them express

permission or licence to do so. For brevity’s sake, I adopt the term ‘the permission

gateway’ to describe this second procedural requirement. In my analysis below, I

will argue that, by adopting the permission gateway, the Tribunal creatively and

100 Both the Mahamad and administrators of workhouses and almshouses called occupants ‘inmates’.

See Tim Hitchcock and Robert B. Shoemaker, London Lives: Poverty, Crime and the Making of a

Modern City, 1690-1800, pbk. ed. (Cambridge: Cambridge University Press, 2016), 123.

LMA/4521/A/01/03/010 (1833-1844), Minutes of the Mahamad, 25/6 Adar 5598/22 March 1838; 28

Nisan 5598/23 April 1839. 101 Teubner, "Two Faces of Janus", 1451.

125

flexibly responded to the pressures from the external forces that pulled congregants

towards English courts. For all its undoubted problems, the permission gateway

provided the Tribunal with a practical mechanism to control access to the English

courts, while at the same time being mindful of the broad halakhic principle of

preventing a recalcitrant defendant from defeating a plaintiff’s ability to achieve

justice. The permission gateway became a way for the Mahamad to transcend the

underlying problem with its vision of a Jewish judicial space – the fact that, unlike

Venice and Amsterdam, it could never rely on the English courts to enforce its

decisions, other than in the very narrow context of an arbitration award that complied

in all respects with English arbitration law. This control mechanism gave the

Tribunal an opportunity to call a congregant’s bluff, that is, to force them to choose

between consensually resolving their dispute before the Tribunal, or to take their

chances in the civil courts, with all the associated time, expense, and uncertainty that

litigation entailed. In some instances, Livros case notes show us that a plaintiff did

issue civil legal proceedings but, as mentioned in Chapter I, legal texts provide

incomplete data from which to build a complete and definitive picture of a dispute,

including litigants’ motivations and decision-making process.102 The compilers of

the Livros considered it essential only to record information about the Mahamad’s

procedural mechanisms (such as permission), settlement terms, and breaches of the

Ascamot. It is therefore important to construct jurisdictional choices as a practical

issue for individual litigants, who had to weigh up the advantages and disadvantages

of issuing civil legal proceedings to recover their debts.

4.1 The allure of non-Jewish courts

Congregants were already recovering debts in the court of requests (also known as

the ‘court of conscience’) and utilising enforcement mechanisms such as arrest

warrants against debtors in the early eighteenth century.103 The Livros show that

congregants were familiar with both the inferior, local courts (the Mayor’s Court and

102 Bailey, "Voices in Court"; Hill, ""Extreame Detriment"", 139 n.13. 103 LMA/4521/A/01/21/001, see respectively Abraham Salas v Samuel []elvalles, 20 Kislev 5485/25

November 1724 (a three shilling debt) and Aron Cardozo v Jacob Nunes Henriques, 19 Iyyar 5495/30

April 1735 (arrest for a £56 debt).

126

the local magistrates) and the superior, central courts (King’s Bench and Court of

Chancery) and with English legal documents, such as writs, bills, summonses and

warrants.104 Congregants mastered the labyrinthine English court system and were

unafraid to use it to advance their individual interests. Choice of court was not a

simple process; it depended on balancing a variety of interlocking criteria, the type

of legal claim, the procedural advantages or limitations of specific court procedures,

the remedies available pre-and-post judgment to aid enforcement of a judgment, and

the cost of litigation.

It was vital for creditors to commence debt collection process in a court which had

monetary jurisdiction over their claim. Debts not exceeding 40 shillings (or £2) were

collectable in one of London’s five courts of request.105 Courts of request were

staffed by lay commissioners, who were tasked with resolving debt disputes

according to ‘equity and good conscience’. Their speedy and informal process

allowed creditors to collect debts under a greatly simplified process that avoided the

technicalities of a common law contract claim of indebitatus assumpsit, alleging that

the defendant had failed to repay or satisfy a debt.106 Surviving records of the City

of London Court of Request (‘the City Court of Requests’), in which all residents of

the city were entitled to litigate, show that many Sephardi and Ashkenazi Jews used

this court to collect debts due from Jews and non-Jews alike. It held twice-weekly

sessions at the Guildhall on Wednesdays and Saturdays. With the rise in the City

Court of Requests’ monetary jurisdiction from £5 at the end of the eighteenth

century to £10 in 1835, the court continued to be an important venue for ordinary

citizens, traders, and merchants to recover debts.107 As Arthurs remarks, ‘for most

Englishmen of the period, the local court of request dispensed the only form of civil

justice they would ever know.’108

104 For a list of London’s central and local courts, see John Feltham, The Picture of London, for 1804,

Etc (London: Richard Phillips, 1804), 372-375. 105 For the history of courts of request, see Winder, "Courts of Request". 106 Baker, Introduction, 370. Three of the seven types of such claims are documented in the Livros –

goods sold, work done, money lent. 107 Brady, The New Law of the City Court of Requests, ii. 108 Arthurs, Without the Law: Administrative Justice, 26; "Without the Law: Courts of Local and

Special Jurisdiction in Nineteenth Century England", The Journal of Legal History 5 (1984), 130-149:

132. cf. Peter King, "The Summary Courts and Social Relations in Eighteenth-Century England",

Past & Present 183 (2004), 125-172: 125-126. King argues that more people experienced the law

through the justice of the peace summary jurisdiction than anywhere else. On fluctuating rates of

litigation in the central courts in early modern England, and the rise in business of local courts of

request, see Christopher Brooks, "Litigation, Participation, and Agency in Seventeenth and

127

However, even the informality of the courts of request held traps for the unwary.

For example, only liquidated debts were recoverable, which excluded all cases in

which a claimant sought unliquidated damages. Debts concerning probate,

inheritance, or matrimony, which fell under the exclusive jurisdiction of the

ecclesiastical courts, could not be recovered in the City Court of Requests.109 It also

did not have jurisdiction to determine questions of title to real estates or debts arising

therefrom.110 To complicate matters still further, small debts were also recoverable in

the City of London sheriff’s courts, while the Lord Mayor’s Court’s unrestricted

jurisdiction over ‘any Matters whatsoever arising within the Liberties of London, to

any value whatsoever’, enabled larger debts and property claims excluded from the

City Court of Requests to be pursued locally rather than in the central courts at

Westminster.111 Abuse of these courts’ jurisdiction to recover small debts properly

falling within the jurisdiction of the City Court of Requests was punishable in

costs.112

Apart from these inferior local courts, creditors could collect debts in the superior

common law central courts at Westminster, the Court of Common Pleas, the King’s

Bench, and Exchequer of Pleas, all of which had an unlimited monetary jurisdiction

for civil claims. During the period 1740 to 1850, debt litigation became the staple

business of these common law courts, with the King’s Bench being the most popular

of the three courts.113 According to Francis, the ‘common-law system offered

plaintiff-creditors pursuing solvent debtors the prospect of potentially low-cost,

quick, and predictable recovery.’114 Creditors who had the documentary proof of

their claim, e.g., an unsatisfied written loan note, bill of exchange, or promissory

note, were almost guaranteed success, which included recovery of their costs under a

Eighteenth-Century England", in The British and Their Law in the Eighteenth Century, ed. David

Lemmings (Woodbridge, Suffolk: The Boydell Press, 2005), 52-60. 109 An Acte for Recoverie of Small Debtes, and releevinge of poore Debors in London, (1604) 1 Jac. I.

c. 14; Brady, The New Law of the City Court of Requests, 11. 110 ibid. 111 William Bohun, Privilegia Londini: Or, the Laws, Customs, and Priviledges of the City of London,

Etc (London: D. Brown & J. Walthoe, 1702), 186. 112 Charles Erdman Petersdorff, A Practical and Elementary Abridgment of the Cases Argued and

Determined in the Courts of King's Bench, Common Pleas, Exchequer, and at Nisi Prius: And of the

Rules of Court, from the Restoration in 1660, to Michaelmas Term, 4 Geo. IV. [...] ... A Practical

Treatise on the Different Branches of the Common Law, vol. 14 (New York: W.R.H Treadway and

Gould & Banks, 1831), 219; Winder, "Courts of Request", 375. 113 Francis, "Practice, Strategy, and Institution", 810, 849. 114 Ibid., 809.

128

‘loser-pays-all’ system.115 Although the Livros report numerous large debt cases

where the necessary documentary proof was available, there is no definitive internal

evidence from the Livros that central court litigation was commenced in these

cases.116 There are only two disputes that explicitly mention the King’s Bench and

they are non-debt cases.117 Livros references to writs or bills are inconclusive

evidence of central court litigation because local courts used them for originating

process too, and since the relevant debts were for small amounts, it is reasonable to

assume that creditors likely litigated in local courts.118 Arthurs’ observation that

eighteenth century litigants mainly used local courts seems as true for the

congregation as it was for their non-Jewish neighbours.119

Three situations indicate how congregants used local courts. Firstly, debtors or their

relatives complained to the Tribunal that creditors failed to adhere to the Disputes

Ascama because they took enforcement action against them (either pre-or-post

judgment). These cases mention warrants or the defendant’s arrest, bail, or

imprisonment. Secondly, the Livros case notes mention a summons, writ, or bill (all

court documents that commenced litigation) either as part of the Tribunal giving a

creditor permission to sue a debtor, or in connection with a debtor’s complaint that a

creditor had begun litigation against him or her. Categories 1 and 2 reveal the

weakness of some congregants’ commitment to behavioural norms, and I discuss

these two categories immediately below. Finally, I will discuss a third situation

where debtors failed to respond to the creditor’s summons to appear before the

Tribunal, which resulted in the Tribunal activating its permission gateway to civil

courts. In this scenario, the permission gateway was a proactive mechanism to co-

opt civil process to bolster the Tribunal’s authority, with mixed results as we shall

see.

115 Ibid., 812-814. 116 LMA/4521/A/01/21/003, Isaac Benzaquen v Prosper Botibol, 29 Tebet 5575/5 January 1791. See

also LMA/4521/A/01/21/004, Abraham Benjamin v Samuel de Cortissos, 27 Hesvan 5557/28

November 1796, mentioning the expenses of a lawsuit on a Note for £19.10.9 but no indication of court venue. 117 LMA/4521/A/01/21/003, Hanah Sanguinette v Benjamin Alvarenga Franco, 28 Sivan 5549/22

June 1789; Joseph b Abraham Nunes Martines v Raphael and Raquel Rodrigues Habilho, 27 Elul

5550/6 September1790. 118 For example, LMA/4521/A/01/21/003, Daniel Cardozo v Abraham Mendes Chumaceiro, 27 Tisry

5551/5 October 1790. 119 Arthurs, Without the Law: Administrative Justice, 26.

129

4.2 Policing normative behaviour: the role of congregants

4.2.1 Use of enforcement procedures

The fundamental problem with realising its vision for Jewish justice was that the

Tribunal’s own decisions could not be directly enforced in civil courts, although it

was possible for the Tribunal to co-opt civil process to advance the resolution of a

dispute. As Oliel-Grausz points out, Jewish justice systems were dependent on the

particularities of the host society’s legal system, and she singles out England’s ‘harsh

legislation on debts’ to coerce debtors into repaying debts as an important factor in

shaping the London community’s justice system.120 Certainly, before imprisonment

for debt was reformed in the 1860s, the debtor’s prison was a spectre hanging over

all debtors.121 Yet, the Livros show that coercive methods leading to imprisonment

were seldom used, or at least rarely complained about to the Tribunal. Searching for

words that denote coercive methods (arrest, bail, prison) I found just 44 cases in the

entire Livros, of which 29 concerned debts. Of the 52 cases that mention various

types of warrant, only 5 appear to relate to debt collection.122 These figures suggest

that, at least for those congregants who used both the Tribunal and civil courts, the

strong enforcement powers of civil courts did not play as great a role in debt

collection as might have been supposed.123

Since the Disputes Ascama required creditors to apply for prior permission before

taking any legal action (other than in urgent cases), debtors complaints functioned as

an internal policing mechanism to hold miscreant creditors to account when they

breached behavioural norms. It seems therefore that debtors complained to the

Tribunal to trigger the disciplinary powers to fine the creditor. A more cynical

interpretation, however, is that debtors complained to the Tribunal to advance their

own self-interest by transforming their creditor’s actions into an opportunity to

120 Oliel-Grausz, "Dispute Resolution", 252. 121 For superior courts, see Paul Hess Haagen, "Imprisonment for Debt in England and Wales" (PhD

diss., Princeton University, 1986). For inferior courts, see Finn, Character of Credit, 197-235. 122 Most warrants concerned breaches of the peace, such as physical assaults. 123 In the first 50 years covered by Livro 1, there were just three arrest cases. See, e.g.,

LMA/421/A/01/21/001, Aron Cardoza v Jacob Nunes Henriques, [9 Iyyar 5495]/30 April 1735 (debt

of £56).

130

mediate before the Tribunal and to persuade creditors to discontinue their civil debt

litigation.

This low rate of actual coercion fits with reality that debt imprisonment was not

arbitrary but was regulated by civil court procedures. 124 While immediate arrest

against the body of a debtor was possible in the central courts at Westminster, when

creditors issued their writ they had to provide a supporting affidavit to confirm a set

minimum amount was claimed before an arrest warrant would be issued.125 In the

City Court of Request, arrest only became possible when a debtor twice failed to

respond to a summons to appear in court or where after judgment (by default or at

trial) the defendant failed to comply with an order of the court.126 If a debtor could

not agree debt repayment or missed a single agreed payment, she was liable to be

imprisoned for a maximum period of 20 days for a debt of less than 20 shillings and

up to 40 days if above that amount. The debt was treated as cancelled at the end of

the imprisonment term.127 Finn’s observation that ‘imprisonment marked the endpoint

of an extended process of negotiation’ between creditor and debtor is as pertinent for

congregants as for the general population.128

There is a rare example from 1779 of both the Livros and surviving City Court of

Request warrant books mentioning the same parties to a small debt dispute, although

it is impossible to be definitive about whether the disputes are in fact connected to

124 For varying court policies towards execution against goods or the body of the debtor, see Finn,

Character of Credit, 242-243; Francis, "Practice, Strategy, and Institution", 819. The central common

law courts deployed three writs of execution: against goods and chattels (fieri facias), against goods

and interests in land (elegit), and arrest against the body of the debtor, who was imprisoned until the judgment and costs had been satisfied (capias ad satisfaciendum). 125 "Practice, Strategy, and Institution", 830. The limit was £10 until 1811 when it was raised to £15

and again in 1827 to £20. 126 See LMA: CLA/038/01/001, Report of Committee appointed to enquire into the practice and fees

of the Court of Requests etc., 1774. A defendant’s right to select which of the two court sitting days

(Wednesday or Saturday) he wished to appear was abolished and replaced with a summons that

stipulated the return day on the next Wednesday or the next Saturday. The summons warned the

defendant that failure to attend would result in a warrant of attachment being ordered at the first

hearing. See pro forma Summons in LMA, CLA/038/03/006, Court of Requests Summons Book. If

the debtor failed to appear in court following a warrant of attachment order, the creditor could apply

for a warrant of execution either against the property or body of the debtor. For a pro forma Order of

the Commissioners for committal to prison see, LMA, CLA/038/03/007, Court of Request Summons Book. For warrants of attachment in the Livros, see, e.g., LMA/4521/A/01/21/002, Baruh Sultan v

Abraham Lealtad, 11 Adar 5536/[2 March 1776] and LMA/4521/A/01/21/005, Joseph Fonseca

Pimental v Joseph de [] Martines, 27 Nisan 5587/24 May 1827. 127 Finn, Character of Credit, 219, 244. Periods of detention altered in line with courts of request

increased monetary jurisdiction. Imprisonment for debts not exceeding £20 was abolished in 1844:

see Winder, "Courts of Request", 393. 128 Finn, Character of Credit, 197.

131

one another.129 Complaints were often made about enforcement action when a

creditor did not have permission to sue in a civil court. Here we see the tactical

advantage to debtors who used their complaint as an opportunity to agree repayment

terms and to persuade the creditor to ‘tear up’ his warrant.130 Occasionally, debtors

used the same tactic for larger debts, where the Tribunal’s intervention after a

complaint led to settlement, after a warrant of attorney was signed. This was a

special enforcement process whereby an attorney accepted a formal declaration from

the debtor consenting to judgment.131

The Tribunal’s intervention in these cases was dependent on congregants

complaining to it as soon as they were served with legal process. Intervention was

even more critical when creditors deployed civil arrest procedures either because the

debtor had persistently failed to appear in court or failed to comply with a default or

trial judgment. In rare instances, creditors applied to the Tribunal for permission to

arrest a debtor, e.g., because of a fear that they would abscond from the

jurisdiction.132 Usually, the Tribunal learned of an arrest after it had happened, when

either the bailed debtor or a relative of the imprisoned debtor complained to them.133

While occasionally the Tribunal accepted a creditor’s apology in these

circumstances, they were more likely to impose fines upon creditors who resorted to

arrest procedures.134 Some creditors escaped fines by giving the Tribunal acceptable

129 LMA/4521/A/01/21/002, wife of Mordy Rodrigues v Isaac Saquy, 27 Elul 5539/8 September 1779;

LMA: CLA/038/03/002, Court of Request Summons Book, Wednesday 1 September 1779, F89/42,

Mordecai Roderigues and Isaac Sakey (No.9 Petticoat Lane); LMA: CLA/038/03/16, fol. 72, Court of

Requests Warrant Book, 25 October 1779, Sakey Isa./Roderequiz Mordica imprisoned in Wood Street Compter. 130 LMA/4521/A/01/21/002, Abraham Alvares Baltazar v Benjamin Habilho Da Fonseca, 26 Nisan

5538/23 April 1778. See also LMA/4521/A/01/21/005, Catherine Abraham v David Bensusan, 28

Sebat 5587/25 February 1827. 131 LMA/4521/A/01/21/004, David de Moseh Nunes Martines v [] Samuel, 3 Tebet 5557/2 January

1797; LMA/4521/A/01/21/005, Jacob de Fonseca v wife of [] Mendoza, David N Martines, 27 Elul

5573/22 September 1813. See also LMA/4521/A/01/03/009, Minutes of the Mahamad, 25 Tebet

5589/1 January 1829, fol. 230 which mentions a warrant of attorney from Samuel Shannon referred to

earlier in the minutes (15 Hesvan 5589/23 October 1828 p. 219). On warrants of attorney generally,

see Francis, "Practice, Strategy, and Institution", 826. 132 LMA/4521/A/01/21/002, Aron Carcas v Emanuel Bernal, 23 Iyaar 5538/10 May 1778. 133 For example, see LMA/4521/A/01/21/002, wife of Joseph de Saul Cohen v Israel Nunes Martines, [25] Sivan 5539/9 June 1779; LMA/4521/A/01/21/003, wife of Judah Alburguer v Joseph Habilho da

Fonseca, 28 Tebet 5546/29 December 1785; Daniel de Abraham Mendoza v Selomon de Aron

Mendoza, 28 Nisan 5550/12 April 1790 and 28 Iyar 5550/12 May 1790 (bail). 134 For apology, see LMA/4521/A/01/21/002, wife of Joseph de Saul Cohen v Israel Nunes Martines,

[25] Sivan 5539/9 June 1779; LMA/4521/A/01/21/003, the wife of Mordy Paz de Leon v Is. De

Yomtob Saltiel, 9 Iyar 5547/27 April 1787. cf. fines: LMA/4521/A/01/21/002, Daniel Henriques

Valentine v Abraham Benjamin, 26 Sebat 5540/2 February 1780; Moseh Harby v Rachel de Moseh

132

excuses for their behaviour, e.g., that their case was urgent, or that as strangers to the

community, they were ignorant of the Disputes Ascama’s requirements.135 As we

saw with warrants for arrest, actual arrest was an opportunity for debtors to bring

their case before the Tribunal and to seek a settlement with their creditor. In a

complicated breach of contract claim concerning the shipment of rotten salted meat

to Gibraltar, the buyer rejected the Tribunal’s advice to honour his loan note that had

financed his purchase. When he defaulted on payment, the seller arrested him as well

as summoning him to the Tribunal, where the parties agreed settlement terms. While

arrest had given the creditor leverage over the buyer, the Tribunal’s mediation was

crucial to achieving a commercial solution to the debt claim and to a potentially

complicated international contractual dispute.136 Although arrest for debt was a

remedy that the Tribunal was unable to match, the impact of arrest on its dispute

resolution work should not be exaggerated, considering the paucity of evidence in

the Livros that arrest was a widespread tactic.

4.2.2 Use of originating procedures

The second trend associated with the use of English courts that we see in the Livros

are complaints to the Tribunal that mention court documents such as a summons,

writ or bill which initiated civil litigation. References to a summons occur more

frequently than to writs or bills because a summons commenced proceedings in the

City Court of Requests. Of the 64 complaints which mention a summons, 19 were

cases in which the Tribunal gave the creditor permission to sue (the ‘permission

cases’), 43 began as complaints to the Tribunal that the creditor had failed to obtain

prior permission before issuing process (the ‘non-permission cases’), and 2 used

‘summons’ entirely differently, to refer to a summons to the Tribunal itself.

Baruh, 5 Sivan 5541/30 May 1781. Concern about the use of arrest had long historical roots to the

1730s: see LMA/4521/A/01/03/001, Minutes of the Mahamad, fols. 92r, 94r, 127r. 135 For urgency, see LMA/4521/A/01/21/002, Abraham Lopes Fernandes v Selomon Cohen Delmonte

and others, 12 Tamuz 5542/24 June 1782; LMA/4521/A/01/21/003, [] Moses Nunes Castello v Benjamin Henriques Lopes Garcia, 14 Iyar 5548/21 May 1788. For strangers, see

LMA/4521/A/01/21/002, Abraham Parente v Misud Shanon, 28 Sivan 5542/10 June 1782;

LMA/4521/A/01/21/004, Semuel de Daniel Cohen v Yehiya Aflalo, 26 Adar 5557/23 March 1797;

Aaron de Isaac Gomes da Costa v wife of David Nunes Cardozo and another, 28 Kislev 5562/4

December 1801 (the wife of a non-Jew apologised for his ignorance of the Ascamot). 136 LMA/4521/A/01/21/004, Abraham Benjamin v Abraham Dias, 29 Hesvan 5560/27 November

1799 and 26 Tebet 5560/23 January 1800.

133

The 19 permission cases that mention a summons follow the Tribunal’s general

policy to permit civil proceedings when either the defendant failed to respond to two

summonses to appear before the Mahamad, or when mediation had failed.137

Usually, the Livros indicate permission by ‘licence to go to the law of the land’.

These 19 cases deploy alternative formulations which expressly or impliedly refer to

a document that initiated civil litigation. It is difficult to decode what the Tribunal

had in mind when referring to a summons, but it is possible that it explicitly intended

to give permission for the creditor to issue a summons in the City Court of Requests.

For example, when Abraham Leon Sebola sent an excuse to the Tribunal that he was

‘busie’ and could not attend before the Tribunal about a 11/6 debt he owed, the

Tribunal expressly gave his creditor ‘leave to summon’ Sebola.138 If my

interpretation is correct, the language indicates pragmatism and realism on the part

of the Tribunal to co-opt court procedures to prevent the creditor being frozen out of

justice. Another tactic of the Tribunal was to use ‘summons’ when it gave

conditional permission to a creditor if a debtor did not comply with settlement terms,

which incentivised the debtor to comply with settlement terms to avoid legal

proceedings.139 The Tribunal also used ‘summons’ when it alerted creditors to

potential pitfalls in English law that might frustrate successful recovery of the debt,

such as issuing proceedings against a ‘Coverd Woman’ rather than her husband.140

Consistent policy is more difficult to discern in the 43 non-permission complaints of

debtors that their creditor had summoned them without permission from the

Tribunal. As discussed above, debtors likely complained to the Tribunal for tactical

reasons rather than to see the creditor punished for their transgression. Many

137 See Kerner’s statistics on permissions given in each year to the end of the eighteenth century,

which fluctuated from a high of 44% of 18 total cases in 1772 to a low of 4% of 88 cases in 1793.

Figures include disputes of all types. Kerner, "Livro De Pleitos", 284-287. 138 LMA/4521/A/01/21/002, Joseph de Abraham Nunes v Abraham Leon Sebola, 27 Adar 5533/[22

March 1773]. 139 LMA/4521/A/01/21/002, David de Saul Rodrigues v Is Gomes Da Costa, 27 Tisry 5537/10

October 1776; LMA/4521/A/01/21/006, Moses de Aron Mendoza v David de [] Cardoza, RH Iyar 1

Iyar 5599/15 April 1839; Rachel Tolano v Samuel of Raphe Costa, RH Nisan 29 Adar 5601/23 March

1841. 140 LMA/4521/A/01/21/002, Haim Deros v Rachel Palache, 27 Hesvan 5533/23 November 1772.

The rule of feme covert subsumed a wife’s legal personality into that of her husband, denying her the

right to sue on her own account. See Margot Finn, "Women, Consumption and Coverture in England,

c. 1760-1860", The Historical Journal 39 (1996), 703-722. Courts of request permitted wives to

appear on their defendant husband’s behalf: see Finn, The Character of Credit, 239. cf. Karen

Pearlston, "At the Limits of Coverture: Judicial Imagination and Women's Agency in the English

Common Law" (Ph.D., York University (Canada), 2007).

134

complaints ended with a settlement of the underlying debt and a few of these cases

even state expressly that civil action was to be discontinued, though it is reasonable

to suppose that once the parties settled, discontinuance followed in any event.141 In

the early-to-mid 1770s all the complaint cases were settled without punishing the

transgressing creditor. From the late 1770s the Tribunal took disciplinary action

against creditors in a small minority of cases, but it is difficult to discern a

considered, objective policy behind these punishments, which ranged from fines of 1

to 20 shillings, or a sanction on a creditor’s sedaca, even when parties settled at the

Tribunal.142

To conclude, congregants played an important role in maintaining the boundaries of

acceptable normative behaviour in relation to the Disputes Ascama. Had they

remained silent and simply acquiesced in the creditor’s jurisdictional choice, the

Tribunal would have been denied any role in attempting to mediate between the

parties, or where they considered desirable, to impose disciplinary measures.

However, despite the success of this strategy, the Livros also illustrate that many

congregants were indifferent to the Tribunal’s process. As plaintiff creditors they

ignored the Tribunal altogether and issued proceedings in civil courts, and as

defendants they failed to submit to the Tribunal’s jurisdiction when summoned by

creditors to appear.143

4.3 The permission gateway to non-Jewish courts

The London community’s vision of Jewish justice included the requirement that the

plaintiff obtain the Tribunal’s prior consent to issuing proceedings in non-Jewish

court, which I have termed the ‘permission gateway’. A plaintiff had to summon a

141 For discontinuance, see LMA/4521/A/01/21/002, Raphael Torres v Isaac de Daniel Rodrigues, 25

Elul 5543/22 September 1783; LMA/4521/A/01/21/003, Abraham Leon Sebolla v Sarah wife of

Joseph de Moses Nunes, 25 Menahem 5547/9 August 1787; LMA/4521/A/01/21/004, Selomoh

Mendoza v Mordecai Moravia, 26 Tebet 5558/15 January 1798; Semuel Salomon Tudesco v Joseph

Zamira, 26 Sivan 5564/5 June 1804; LMA/4521/A/01/21/006, Solomon Hart v Isaac Saqui, 30 Sivan

5600/30 June 1840. 142 LMA/4521/A/01/21/002, Isaac Saquy v Abraham Fernando Henriques, 28 Tamuz 5539/12 July

1779; Abraham Henriques Don Fernando v Isaac Saquy 28 Hesvan 5540/7 November 1779; Abraham Fernandes Henriques, 18 Sebat 5543/22 January 1783; LMA/4521/A/01/21/003, Ribca

daughter of Moses Penah v Judith de Menachem Romano, 28 Sebat 5548/8 January 1788; Isaac

Penha v Joseph da Costa, 28 Tamuz 5549/21 July 1789. 143 See eighteenth-century statistics for ‘no shows’ in Kerner, "Livro De Pleitos", 272, 282-287.

Kerner concludes that a ‘remarkable’ 32% on average did not appear when summoned, indicating the

‘rather limited authority of the Mahamad’. I would argue that, given the challenges the Tribunal

faced in competing with English courts, a 68% compliance rate was equally remarkable.

135

defendant twice to the Tribunal before it would grant permission to sue in a non-

Jewish court. When a defendant failed to appear on the second occasion, the

Tribunal invariably gave the plaintiff permission to sue.144 Permission was rarely

refused after an inter partes mediation failed. Once creditors had permission, they

had to weigh up the likelihood of success against the time and expense of litigation.

Such decisions were particularly acute when creditors were collecting small debts.

We cannot therefore assume that every permission decision translated into legal

proceedings.

To understand the complexities of the permission gateway, I compared small debt

cases in the Livros with the surviving summons books of the City Court of Requests

(‘the Summons Books’) and immediately encountered several difficulties. Firstly,

the surviving Summons Books cover the period 1778 to 1796 (with many gaps)

which provided a narrow 18-year window of comparison for the eighteenth century

and no data for the nineteenth century.145 Secondly, congregants shared surnames

with Ashkenazi Jews (for example, Cohen and Benjamin) so that Sephardi litigants

cannot always be precisely identified. Since the Tribunal claimed jurisdiction only

over its own congregants, I concentrated on litigation between Sephardi creditors and

debtors, whose names were familiar to me from the Livros. Thirdly, connections

between the Livros and the Summons Books had to rest on party names and

coincidence of litigation dates only because the Summons Books do not record case

details. The Summons Books document the cause list for its Wednesday and

Saturday hearings, stating the name of the summoned debtor in a left-hand column,

followed by the name of the creditor (sometimes with their address) in the second

column. A typical comparative example is as follows: on 29 June 1780, the creditor

Abraham Benevente called the debtor Ester Vanano to the Tribunal. She failed to

appear, and the Tribunal instructed that she be summoned a second time. Vanano

did not appear at the second hearing on 31 July 1780, and the Tribunal gave

Benevente permission to sue her. In the Summons Book cause list for Saturday, 19

August 1780, we find in the first column the debtor ‘Esther Vananio’ and an ‘Abram

144 LMA/4521/A/01/21/002, Rachel de Misud Benjamin v Daniel Henriques Valentine, 28 Tamuz

5540/31 July 1780 and 27 Elul 5540/27 September 1780. For a rare example of a defendant who

explicitly refused to submit to the Tribunal, see LMA/4521/A/01/21/005, Benjamin H Cohen b

Joshua Pariente, 29 Tamuz 5586/3 August 1826. 145 There are 13 surviving summons books, one of which was too fragile to be examined.

136

Benevento (Hennage Lane, Bevis Marks)’ as creditor in the second column.146

Spelling discrepancies frequently occur between the two sources.

I identified 123 cases with recognisably Sephardi surnames for creditor and debtor in

the Summons Books. I then searched the Livros during the overlapping period of

1778 to 1796 for cases involving the same parties in the relevant timeframe and

discovered 41 ‘overlapping cases’, leaving 82 Summons Book entries (two-thirds)

that had no connection to the Livros. Of the 41 overlapping cases, 22 were cases in

which the creditor had prior permission to sue the debtor. Creditors obtained

retrospective permission in a further 6 cases. The remaining 12 of the 41

overlapping cases came to the Tribunal’s notice after the debtor lodged a complaint

that the creditor had not obtained permission to sue.147 The 82 cases in which

creditors ignored the Tribunal entirely suggest that non-compliance with the

Tribunal’s permission gateway was commonplace. However, 82 cases represent a

small proportion of the overall number of small debt disputes between congregants.

By way of comparison, between May 1778 to January 1784, there were 146 small

debt disputes recorded in Livro 2. The Summons Books for the same period have 61

entries where creditor and debtor were Sephardim. Creditors did not apply to the

Tribunal for permission to sue in 45 of these 146 cases.148

Statistics alone cannot reveal the complexity behind the litigation decisions of

individual creditors and their debtors’ responses. To expose these personal choices, I

analysed the litigation history of two regular litigants before the Tribunal and the

City Court of Requests, who represent different strata of Sephardi society. Isaac

Mendes Belisario was a respected religious figure both in the community and among

Christian intellectuals, known for his sermons during periods when the congregation

was without a Ḥakham. Isaac Saqui represents the typical small merchant trader

among the congregation.149

146 LMA/4521/A/01/21/002, Abraham Benevente v Ester Vanano, 26 Sivan 5540/29 June 1780 (first

hearing) and 28 Tamuz 5540/31 July 1780 (second hearing); LMA/CLA/038/03/003, Court of

Request Summons Book, fol. 22, entry 36. 147 For example, see LMA/4521/A/01/21/003, Abraham de Isaac Nunes Martines v Daniel de

Abraham Mendoza, 25 Kislev 5545/8 December 1784; LMA/CLA/038/03/007, Court of Requests

Summons Book, Saturday 13 November 1784, Abram Martin and Daniel Mendoza. 148 I selected Livro 2 because the surviving Summons Books for this period appeared complete. 149 Kerner, Lost in Translation, 210-216; David B. Ruderman, Jewish Enlightenment in an English

Key: Anglo-Jewry's Construction of Modern Jewish Thought (Princeton: Princeton University Press,

2000), 41 n.68; 207.

137

Belisario appears as a defendant in eight Livros debt cases, of which five were small

debt disputes within the monetary jurisdiction of the City Court of Requests.

Belisario settled two of these cases before the Tribunal and his creditors, with the

Tribunal’s permission, took the remaining three cases to the City Court of Requests.

Despite his religiosity, Belisario failed to appear before the Tribunal in these three

cases. His non-appearance cannot be attributed to ignorance of the Tribunal’s

permission policy, given that he had previously responded to the Tribunal’s

summonses or sent a written, reasonable excuse for non-attendance.150 It can be

inferred that Belisario deliberately chose to put his creditor to proof by bringing civil

proceedings against him. That choice is puzzling, given that Belisario risked being

summoned to appear in the civil court on a Sabbath, and in fact all these summonses

were returnable on a Saturday.151 Unlike Kerner, I am unconvinced that the mere

listing of summons on a Saturday is definitive proof that religious men like Belisario

flouted Sabbath rules to attend court at the Guildhall. There were several ways

debtors could avoid court attendance. After 1774, sitting commissioners had

discretion to grant an ‘especial Indulgence’ to relist a case on another day. Creditors

had the discretion whether to seek an immediate warrant of attachment where a

debtor did not appear in court. Non-appearance together with such a warrant was

noted in the Summons Books by the abbreviation ‘ATT’ (attachment) next to the

debtor’s name. This did not happen in Belisario’s cases, which either means he in

fact appeared, or that the creditor did not apply for a warrant.152

150 LMA/4521/A/01/21/002, large debt litigation between Belisario and Mrs Massieas, a widow, in

5541/1781: see 22 March; 23 April; 21 May; 30 May; 21 June. See also small debt claims (1)

LMA/4521/A/01/21/002, Salomon Mendoza v Isaac Mendes Belizario, 26 Sivan 5543/26 June 1783;

27 Tamuz 5543/27 July 1783 and LMA/CLA/038/03/005, Court of Requests Summons Book,

Saturday 26 July 1783. (2) LMA/4521/A/01/21/003, Naphty Paz de Leon v Isaac Mendes Belizario,

28 Adar 5544/21 March 1784; 25 Nisan 5544/16 April 1784 and LMA/CLA/038/03/006, Court of

Requests Summons Book, Saturday 24 April 1784. (3) LMA/4521/A/01/21/003, Mesud Belilo v

Isaac Mendes Belizario, 27 Sebat 5546/26 January 1786; 27 Veadar 5546/27 March 1786 and

LMA/CLA/038/03/008, Court of Requests Summons Book, Saturday 25 March 1786. 151 Ibid. 152 Kerner, "Livro De Pleitos", 276. See LMA/CLA/038/01/001, Report of committee appointed to enquire into the practice and fees of the court of requests, the houses of its officers and their servants,

as also the inconveniences attending the present mode of executing the business hereof, 23 June 1774.

The mischief the Report addressed was complicated. When summonses gave debtors a choice of

appearing in court on a Wednesday or Saturday, creditors wasted time attending both court sessions.

If they were absent from the court when their case was called, their case was dismissed. Altering the

summons to require all defendants to attend at the start of a court session on a certain day stipulated in

their summons prevented this.

138

Belisario’s case history from his creditors’ perspective adds another layer of

complexity to the question of choice of jurisdiction. Two creditors, Abraham

Rodrigues and Naphtali Paz de Leon did not apply to the Tribunal for permission to

sue Belisario for a small debt in the City Court of Requests. While Rodrigues

seldom used the Tribunal to settle disputes, Naphtali Paz de Leon frequently did so.

This inconsistent creditor behaviour, adhering to as well as disobeying normative

procedural expectations, suggests that applications for permission were highly

dependent on individual decision-making on a case-by-case basis.

Isaac Saqui’s litigation history stretches from December 1772 to May 1823 and

provides greater scope to analyse broader underlying trends among ordinary

congregants towards adhering to normative rules.153 Saqui was a butcher and orange

and lemon trader who lived in Petticoat Lane close to Bevis Marks.154 He was a

prolific user of the Tribunal, and is either plaintiff or defendant in nearly one

hundred case notes concerning debt disputes and the typical quarrels between

congregants that frequently appear in the Livros. Saqui had an ongoing

debtor/creditor relationship with another congregant, Benjamin Habilho da Fonseca,

during which each of them forum shopped between the Tribunal and the City Court

of Requests. A series of records from September 1779 to March 1781 reveal how

Fonseca used both forums to pressurise Saqui to settle his debts, and how Saqui tried

to delay repayment for as long as possible. At a hearing before the Tribunal on 8

September 1779, the parties were unable to negotiate a settlement of a 23-shilling

debt Saqui owed Fonseca and the Mahamad gave Fonseca permission to sue Saqui,

which he exercised the same day by summoning Saqui to the City Court of

Request.155 In June 1780, Fonseca and Saqui agreed a repayment schedule at the

Tribunal. In December 1780, without permission from the Tribunal, Fonseca

summoned Saqui to the City Court of Requests, presumably because Saqui had

failed to keep his side of their bargain. Fonseca stepped up the pressure on Saqui in

February 1781 when he issued and renewed a warrant against Saqui. In March 1781,

153 Kerner relates some of Saqui’s litigation history in "Arbitration", 98. 154 See LMA: CLA/047/LJ/17/090/169, City of London Session papers, Debtors Schedule 1810-11.

‘Saqui, Isaac, Butcher and Dealer in Oranges and Lemons of No 49 Petticoat Lane, Aldgate, City of

London, Fleet Prison’. See also LMA/4521/A/01/21/005, Isaac Saqui v Abraham de Isaac Rodrigues,

Menahem 5568/18 August 1808. Saqui’s name is also spelled ‘Saquy’ in the Livros and ‘Sakey’ in

the Summons Books. 155 LMA/4521/A/01/21/002, Benjamin Habilho da Fonseca v Isaac Saquy, 27 Elul 5539/8 September

1779; LMA: CLA/038/03/002, Court of Requests Summons Book, Wednesday, 8 September 1779.

139

Saqui complained to the Tribunal that Fonseca had not had its permission for this

litigation. The Tribunal immediately ordered Fonseca to halt the litigation and

adjourned the substance of the dispute to the following week, where at the resumed

hearing Saqui agreed to an alternative repayment schedule.156

Fonseca was not the only congregant with whom Saqui had a strained debtor/creditor

relationship during this period. He was involved in a series of disputes with

Mordecai Rodrigues and his wife between July 1779 and January 1780, litigated in

the City Court of Requests and before the Tribunal.157 Their interconnected

indebtedness was typical of the complicated credit relationships in wider English

society.158 Before September 1779, Saqui appears in the Livros as a model

congregant vis-à-vis compliance with the Disputes Ascama, albeit a tardy and

unreliable debtor, prone to rashly agreeing settlements he could not deliver on.

However, from 1779 to 1786, Saqui defied the Tribunal several times by issuing

proceedings without their permission.159 This, despite the Tribunal’s 1778 order that

it would punish rigorously anyone who sued a fellow congregant without first

summoning them to the Mahamad.160 At the same time, Saqui also demonstrated

compliance with Mahamad policy. Not only did he obtain permission to sue for

small debts, but he did not issue proceedings in the City Court of Requests.161

156 LMA/4521/A/01/21/002, Benjamin Habilho da Fonseca v Isaac Saquy, 26 Sivan 5540/29 June

1780; Isaac Saqui v Benjamin Habilho da Fonseca, 16 Adar 5541/13 March 1781 and 25 Adar

5541/22 March 1781. See LMA: CLA/038/03/003, Court of Requests Summons Book, Saturday 16

December 1780; LMA: CLA/038/03/017, Court of Request Warrant Book, pp. 145, 158. 157 LMA/4521/A/01/21/002, Wife of Mordy Rodrigues v Isaac Saquy, 28 Tamuz 5539/12 July 1779;

27 Elul 5539/8 September 1779; 27 Tebet 5540/5 January 1780. See LMA/CLA/038/03/002, Court of Request Summons Book, Wednesday 1 September 1779, Mordacai Roderigues and Isaac Sakey (No.

9 Petticoat La.). 158 Finn, Character of Credit. 159 For example, suing Henriques without permission, see LMA/4521/A/01/21/002, Abraham

Henriques Don Fernando v Isaac Saquy, 28 Hesvan 5540/7 November 1779 (one shilling fine). See

LMA: CLA/038/03/002, Court of Request Summons Book, Wednesday 1 September 1779, Mordecai

Roderigues and Isaac Sakey; LMA: CLA/038/03/003, Wednesday 17 February 1781, Abraham

Cohen and Isaac Sakey (Dukes Place); LMA: CLA/038/03/005, Court of Requests Summons Book,

13 November 1782, Joshua Levy and Isaac Sakey and 22 January 1783, Abram Henriques and Isaac

Sakey. Note also LMA/4521/A/01/21/002, Abraham Henriques v Isaac Saquy, 18 Sebat 5543/22

January 1783 for Henriques’ complaint to the Tribunal about lack of permission. 160 LMA/4521/A/01/02/002, Orders/Resolutions of the Mahamad, 26 Nisan 5538/23 April 1778. For an argument that this was a turning point for the Tribunal, which from then onwards saw dispute

resolution as a service for the poor, see Kerner, "Livro De Pleitos", 279. It will be obvious that I

disagree, not least because the amendments embodied in the 1784 Disputes Ascama do not suggest

that dispute resolution applied only to a single sector of the Sephardi community. 161 LMA/4521/A/01/21/002, Isaac Saquy v Judith Romano, 25 Iyar 5542/9 May 1782.

LMA/4521/A/01/21/003, Isaac Saqui v [] Mendoza, 25 Menahem 5552/13 August 1792. There are no

linked entries in the relevant Summons Books that suggest Saqui issued proceedings as creditor.

140

Complaints to the Mahamad reveal, however, that Saqui did not avoid taking legal

action altogether; these complaints concern Saqui’s applications to the magistrates’

court for breaches of the peace orders without the Mahamad’s permission.162

From the late 1790s until 1823, when Saqui’s name disappeared from the Livros,

Saqui’s choices continued to be multifaceted, displaying compliance with and

deviancy from expected behavioural norms. Complaints continued about him

issuing proceedings without a licence; as creditor he faced debtors who failed to

respond to his summonses to the Tribunal, but as debtor, he took advantage of the

summons process to delay his creditor’s claim. Both as creditor and debtor he

mediated cases at the Tribunal, some more successfully than others.163 By 1817,

Saqui appears only as debtor and, indeed, his slide into severe financial hardship

becomes transparent as even the Ma’asim Tobim sought to recover loans made to

him, and his creditors sought the Tribunal’s help in diverting his sedaca to repay his

debts.164 During this period, Saqui became the paradigmatic example of the

impoverished congregant. Against an expectation that his neediness might motivate

compliance with every summons to the Tribunal, on several occasions he either

failed to attend at all, or only when summoned for a second time.165

Saqui’s undoubted reluctance consistently to obtain prior permission to sue as

creditor suggests that the Tribunal’s primary means of controlling access to civil

courts – the permission gateway – might be considered a failure. It is very unlikely,

however, that the Mahamad was not acutely aware that the implementation of their

vision for preserving their Jewish judicial space would be extremely difficult to

162 LMA/4521/A/01/21/003, Judith de Menachem Romano v Ester Hs Jullião and Isaac Saquy, 28

Adar 5544/21 March 1784; Aron de Moseh Mendoza v Isaac Saqui, 27 Sebat 5547/14 February 1787. 163 For complaints, see LMA/4521/A/01/21/005, wife of [] Garcia v Isaac Saqui, 8 Adar 5567/15

February 1807 and Moseh [] Hen Julião v Isaac Saqui, 28 Tisri 5575/12 October 1814. For Saqui as

creditor, see cases against Abraham Silva and Moseh de Isaac Gomes da Costa on 29 Kislev 5568/30

December 1807; against Semuel Saa on 28 Iyar 5568/26 May 1808. For Saqui as debtor, see Selomon

Mendoza v Isaac Saqui, 26 Sivan 5567/2 July 1807 and 2 Ab 5567/6 August 1807.

For successful mediations, see LMA/4521/A/01/21/004, Selomon de Aron Mendoza v Isaac Saqui, 27

Tisry 5564/13 October 1803 and 29 Hesvan 5564/[14] November 1803; LMA/4521/A/01/21/005,

Isaac Saqui v Abraham de Isaac Rodrigues, 25 Menahem 5568/18 August 1808.

For the rare dismissal of a case, see LMA/4521/A/01/21/004, Isaac Saqui v Simson Genese, 25 Iyar 5562/27 May 1802. 164 LMA/4521/A/01/21/005, Jacob Fernandes v Isaac Saqui, [25] Adar 5578/3 March 1818; Mahasim

Tobim v Isaac Saqui, 28 Sivan 5582/17 June 1822. 165 Ibid., when summoned by Jacob Fernandes and again 26 Nisan 5582/17 April 1822; 25 Iyar

5582/16 May 1822. See also Abraham Silva v Isaac Saqui, 29 Elul 5578/31 August 1818; S Shanon v

Isaac Saqui, 28 Tamuz 5580/10 July 1820; Abraham Lazarus v Isaac Saqui, 27 Iyar 5533/8 May

1823.

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translate into practical reality. Given the open access to English courts and the

absence of ‘embedded justice’ akin to the Amsterdam model, the maintenance of

communal norms was dependent above all else on the strength of the ‘interpretative

commitments’ (Cover) of congregants such as Saqui. Saqui’s jurisdictional choices

demonstrate a highly nuanced and fluctuating adherence to the Tribunal’s dispute

process. Many congregants issued civil proceedings without a licence from the

Mahamad, but equally, the very same congregants obtained permission and did not

act on it, and it is naïve to assume that creditors, debtors, and the Tribunal expected

the permission gateway to translate inevitably into civil litigation.166 Rather than

being an indication of weakened authority, the permission gateway was a highly

flexible and pragmatic mechanism by which the Mahamad could control access to

civil courts, knowing that in each case litigants had to assess whether litigation

would advance their interests and have realistic prospects of success. Above all, the

Mahamad recognised the importance of preventing recalcitrant defendants from

shutting claimants out of justice. This was a cornerstone of the talmudic justification

for maintaining a permission system as an opening between the Jewish and state

legal frameworks.

4.4 Conclusion

The London community’s vision for a Jewish judicial space underwent significant

transformation from the early days when it comprised a handful of wealthy

merchants, whose business disputes could be mediated or arbitrated without active,

substantive involvement of the Mahamad. As the community rapidly increased in

the early eighteenth century, the functionality of the Tribunal broadened to

encompass active judicial authority over a wide range of disputes. While the

Tribunal may have superficially resembled some of the local courts to which

congregants submitted civil disputes, it was in fact rooted in a historical continuum

of Western-Iberian lay judges, who heard civil matters and whose goal was to

facilitate the settlement of disputes. Exploiting the opportunity to create a communal

justice framework, based on the halakhic preference for compromise of disputes, the

Tribunal flexibly adopted several dispute resolution strategies – mediation,

166 On the importance of adequate evidential proof in the central courts, see Francis, "Practice,

Strategy, and Institution", 815-817, 858.

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arbitration, and adjudication. But, at the same time, its goal was effective justice for

individual litigants. In a state legal culture of weak legal pluralism that tolerated

community-based justice within the framework of arbitration only, the scope to rely

on arbitrators’ decisions being enforced by state courts was narrow. To prevent or

minimise congregants exploiting this reality, the Tribunal pragmatically co-opted

state enforcement power through the exercise of its permission gateway. This raises

the question whether the Tribunal’s flexibility and adaptability to English legal

culture came at the expense of undermining the community’s entire project of

maintaining its Jewish judicial space. Whether acculturation is a useful analytical

tool to answer this question can only be fully addressed when we factor in the

challenges the community’s justice system faced in preserving exclusive jurisdiction

over religious disputes that the talmudic system labelled issura, matters which

should never be litigated in non-Jewish courts. In the next chapter, I discuss the

complex interface between Jewish and English justice in relation to the issues of

marriage and divorce and then return to the acculturation question in Chapter VII.

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V. RELIGIOUS CASES

1 Introduction

In Chapters III and IV, we saw that Jews had unrestricted access to England’s

‘temporal’ courts, the network of local and central courts that had jurisdiction over

civil matters, as well as to the ‘spiritual’ jurisdiction of the ecclesiastical courts. The

latter had exclusive jurisdiction over all disputes between private individuals

concerning the validity of marriage or the separation of husband and wife.1 They

were responsible for the spiritual punishment of moral offences such as sexual

misbehaviour and defamation allegations relating thereto. All wills had to be proved

in the ecclesiastical courts, which were the venue for any dispute about testamentary

dispositions of personal property.2 This ‘pervasive’ jurisdiction meant that, in one

way or another, they touched the lives of all subjects, including Jews.3

In this chapter, I examine the potential clash of jurisdictions as between the

ecclesiastical courts and the Jewish judicial space in relation to family disputes over

which both asserted exclusive jurisdiction.4 It will be recalled from Chapter II that

halakhah classified family disputes as issur and thus were prohibited from being

litigated in non-Jewish courts.5 From the foundational Ascamot of 1664 onwards, the

community articulated its vision that the process of marriage and divorce was an

internal matter for the Mahamad and the Ḥakham. The jurisdictional choices of some

eighteenth-century Sephardim, however, challenged the Ascamot’s assumption that

no congregant would flout communal norms by litigating in the ecclesiastical courts.

As Endelman argues, acculturated Jews, and in particular the wealthy elite, were

prepared to defy rabbinic authority and litigate the validity of their Jewish marriages

1 Outhwaite, Rise and Fall, 6. Defamation actions concerning an accusation of immoral conduct were

usually litigated in ecclesiastical courts at the parish level in the Archdeaconry or Commissary Courts.

On the hierarchy of courts in London, see Heather Smith, "Women and Marriage in the Eighteenth

Century: Evidence from the London Church Courts, 1730-1780." (PhD diss., University of Bristol,

2000), 211-212. 2 Outhwaite, Rise and Fall, 7. 3 Baker, Introduction, 139. 4 On the potential clash of jurisdiction as between the ecclesiastical and common law courts before

readmission of the Jews, see R. H. Helmholz, "Conflicts between Religious and Secular Law:

Common Themes in the English Experience, 1250-1640 Symposium - Religious Law and Legal

Pluralism", Cardozo L. Rev. 12 (1990), 707-728. 5 Chapter II, section 1.3.

144

in the ecclesiastical courts. Endelman mentions the Sephardim in the case of Lindo v

Belisario (1795; the ‘Lindo case’) and the Ashkenazi parties in Goldsmid v Bromer

(1798), to which we could add other famous ecclesiastical court litigation by

Sephardim, such as the espousal action of Jacob Mendes Da Costa v Kitty Villa Real

(1733; the ‘Villa Real’ case) and the judicial separation application in D’Aguilar

(Lady) v D’Aguilar (Baron) (1794; the D’Aguilar case).6

However, to approach jurisdictional issues solely through the lens of these cases

risks serious distortion of the extent to which Sephardi congregants were prepared to

resort to non-Jewish courts to resolve their family disputes. Reading these cases

together with the Livros and the Mahamad’s administrative records, we can build an

alternative, nuanced and multi-layered narrative that reveals the diversity of the

jurisdictional choices across a broader cross-section of the congregation. We find

that litigation in the ecclesiastical court was exceptionally rare. Most Sephardim,

irrespective of socio-economic background, showed a strong interpretative

commitment (to adopt Cover’s language) to a normative universe in which they

brought their marital disputes to the Mahamad and the community’s rabbinical

authorities, its Ḥakham and Bet Din, for resolution.7 In constructing that normative

universe, the community was cognisant of where the halakhic boundaries were

drawn in relation to matters of issur that pertained to marital disputes. Some marital

disputes – particularly disputes concerning the financial aspects relating to the

breakdown of marriage – could be litigated with the Mahamad’s permission in

English courts. However, religious matters classified as issur – which went to the

root of the marital bond itself – were to be confined to the Jewish judicial space.

These issur matters evoked a plethora of complex, interlocking halakhot, and the

Mahamad conceded power to the Ḥakham either to decide a case on the merits, or

alternatively to provide them with guidance on how to proceed to resolve a case. As

the ecclesiastical courts would discover in the Lindo case, to apply Jewish law to the

6 For clandestine marriages, see Da Costa v Villa Real (1733), unreported and Lindo v Belisario (1795) 1 Hag. Con. 216; 161 Eng. Rep. 530 and (1796) 1 Hag. Con. (App.) 7, 161 Eng. Rep. 636. For

judicial separation, see D’Aguilar (Lady) v D’Aguilar (Baron) (1794) 1 Hag. Ecc. 773; 161 Eng. Rep.

748. On Goldsmid v Bromer (1796) 1 Hag. Con. 323; 161 Eng. Rep. 568, see Henriques, "Jewish

Marriages", 436-437. The Plaintiff persuaded Sir William Scott that, since one of the witnesses to

kiddushin did not observe the Sabbath and dietary laws, he was an incompetent witness according to

halakhah. 7 Minow, Ryan, and Sarat, Narrative, Violence and the Law, 95-172.

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question of the validity of a marriage purportedly celebrated according to Jewish

marriage rites was extremely complex.

The breakdown of marriages of poorer congregants led them to seek the financial

assistance of the local magistrates who were responsible for implementing the

bastardy and settlement legislation that provided support for the destitute. Ordinary

separated congregants turned to the magistrates’ court which had jurisdiction to

make and enforce maintenance orders against spouses who refused to maintain their

families. What constituted normative behaviour regarding jurisdictional choice

depended on the type of harm suffered by the litigant, the range of remedies

available to ameliorate the harm, and the economic and social circumstances of the

couple. The Mahamad realistically assessed that it was impossible to prevent the

communicative connections these choices created between the non-Jewish courts and

their Jewish judicial space. Instead of a blanket ban on using non-Jewish courts to

secure financial assistance, they deployed the same tactic we saw in Chapter IV in

relation to debt collection, which was to insist that couples obtain permission from

them to litigate. The Livros reveal that many congregants continued to bring their

marital difficulties to the Mahamad, who attempted various strategies to resolve their

problems, from urging them to ‘live in peace’, to actively supporting a separation of

the couple, and sometimes even divorce. Interestingly, the Lindo case provides a

rare example of the rabbinical authority’s attitude towards divorce, where the Bet

Din deposed that divorce was discouraged, particularly where there were no

children, but where there was disharmony, and since marriage was a contract to live

together in mutual love and affection, divorce was preferable.8 In this respect, Jews

were in a better position than other citizens, most of whom could not afford a

parliamentary bill of divorce or judicial separation proceedings in the ecclesiastical

court and who had to wait until the mid-nineteenth century for divorce reform.9

Historians highlight the importance of Jews litigating in the ecclesiastical courts for

different reasons. Picciotto and Henriques consider the case law from a legal

perspective, and my discussion of the validity of marriage cases (section 2) and

marriage breakdown (section 3) begins with an outline of the applicable

8 LPL: Arches D 146, microfiche 757, fol. 921, Bet Din Answers to Sir William Scott. 9 Lawrence Stone, Road to Divorce: England 1530-1987, Reissued ed. (Oxford: Oxford University

Press, 1995).

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ecclesiastical law background of Christian marriage and divorce law.10 In contrast to

legal approaches, David Katz situates ecclesiastical litigation in the wider political

context of the relationship between the Jewish community and the state, arguing that

the legal recognition of marriage according to the rites of the Jews signalled an

acceptance that Jews could manage their own internal affairs.11 Endelman interprets

this litigation as symptomatic of acculturated wealthy Jews flouting weakened

rabbinic authority by suing in Christian courts, rather than in the Bet Din, and as part

of the larger story of the Jewish community’s lack of legal autonomy flowing from

its voluntaristic status.12 While all these approaches have yielded important insights,

I argue in section 2, pace Endelman, that the factual matrix of the Villa Real case

dictated only one jurisdictional possibility for resolving its legal issues – the

Christian court – while the procedural history of the Lindo case shows that, far from

flouting rabbinic authority, the parties sought halakhic solutions within the

community. Section 2 then contrasts similar cases mentioned in the Livros that

remained in the Jewish judicial space and analyses the effectiveness of the

Mahamad’s approach to such cases against their vision for the management of

marriage described in the Ascamot. After my description of the ecclesiastical law of

separation and divorce in section 3, I examine how congregants’ choice of

jurisdiction – the ecclesiastical courts or the local magistrates – was dependent on

the nature of the remedy they sought for their marital difficulties. I then analyse the

Tribunal’s policy towards resolving marital breakdown, revealing how it discouraged

congregants from litigating disputes that touched on personal status, but also used its

permission gateway to the non-Jewish courts to facilitate financial support on

separation of spouses. I end the chapter with an overview of the Mahamad’s

evolving policy towards divorce, as the community adjusted to the nineteenth

century legislation that transformed civil marriage practices and divorce law.

10 Picciotto and Finestein, Sketches, 101-104; Henriques, "Jewish Marriages", 413-414, 435. 11 Katz, Jews in History of England, 320-322. 12 Endelman, Jews of Georgian England, 142-143 ; "Liberalism, Laissez-Faire, and Anglo-Jewry,

1700-1905", Contemporary Jewry 5 (1980), 2-12: 3.

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2 Validity of marriage

2.1 Ecclesiastical law: an overview

In 1646, the Long Parliament abolished the ecclesiastical courts and absorbed its

spiritual jurisdiction over marriage into the temporal courts.13 Civil marriage before a

justice of the peace became possible, but all these Interregnum reforms were

reversed following the restoration of the monarchy in 1660, when the primacy of

canon law’s control over marriage was re-established.14 Thereafter, to create what

Rebecca Probert terms a ‘regular’ marriage, a couple had to publicise their

forthcoming marriage by publishing banns in the parish in which one of them lived.

The ceremony had to be conducted by an ordained Anglican priest in the relevant

parish in a public ceremony in Church before two witnesses and registered in the

Church’s marriage register. Minors could only marry after their parents consented.15

Alternatively, couples could celebrate their wedding in a private ceremony after

purchasing a licence to marry which obviated the need to publish banns.16

Since in canon law marriage was based on consent alone, a customary practice arose,

according to Lawrence Stone, under which ‘a valid and binding marriage was

created by a mere verbal exchange of vows…between a man and a woman over the

age of consent…witnessed by two persons, and expressed in the present tense.’17 In

legal terminology, this was a contract per verba de præsenti, ‘for example ‘I take

thee for my wife/husband’.18 As these vows were not exchanged before an ordained

priest, the contract only bound the couple morally to one another in the eyes of God

and did not function as a ‘full alternative’ to a marriage before an ordained priest.19

13 G. E. Aylmer, Rebellion or Revolution?: England 1640-1660 (Oxford: Oxford University Press,

1986; repr., Reprint with corrections), 127; Outhwaite, Rise and Fall, 78-79. 14 Probert, Marriage Law and Practice, 169-171. Civil marriage would only be restored by the

Marriage Act 1836. See ibid., 337-338. 15 Ibid., 6. 16 Jacob Field, "Clandestine Weddings at the Fleet Prison, c. 1710-1750: Who Married There?",

Continuity and Change 32 (2017), 349-377: 349. 17 Stone, Road to Divorce, 52. 18 Probert, Marriage Law and Practice, 8. 19 Ibid., 26, 56. I adopt here Probert’s differentiation between a ‘full alternative’ marriage and a

‘functional alternative’ marriage at pp. 9-10. A ‘full alternative’ to regular marriage was one where

the couple intended to create a permanent relationship; the law conferred on their union a defined set

of rights, and their marriage was regarded as legitimate in society. In contrast, a ‘functional

alternative’ marriage was one that ‘denote[d] a relationship that involved co-residence, sex

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Even if the couple considered themselves to be husband and wife, their union did not

trigger the full legal rights and responsibilities attendant on regular marriage, such as

a husband’s right to control his wife’s property.20 If one of the parties denied the

existence of this contract, the other party could bring an espousal action in the

ecclesiastical court for an order for specific performance requiring the reneging party

to appear in Church on a specified day and to solemnize their vow before an

ordained priest.21 This was not a straightforward action; contracts expressed in the

future tense (‘I will marry you’) and conditional contracts were unenforceable,

except where consummation had occurred, in which case consent to the marriage

was deemed present.22

The term ‘clandestine marriage’ described an irregular marriage ceremony before an

ordained Anglican priest, but which otherwise failed in some respect to comply with

all the requisite formalities of publication of banns, and/or where the couple did not

have parental consent.23 Unlike contracts per verba de præsenti, a clandestine

marriage that had been consummated functioned in English law as a full alternative

to regular marriage, that is, it established a binding marital bond between the couple,

and transferred all a woman’s property rights to her husband on marriage. By the

1740s, nearly half of the marriages that took place in London were celebrated

clandestinely at the Fleet Prison, or in public houses or marriage houses under its

jurisdiction.24 Some Jews, who were prepared to ‘radically assimilate’ (to use

Endelman’s phrase), took advantage of these routes to marriage and married

clandestinely.25

These practices ended following Lord Hardwicke’s Clandestine Marriages Act of

1753 (‘the 1753 Act’), which declared clandestine marriages ‘null and void’ for non-

compliance with new legal requirements for the publication of banns, or the taking

and…some recognition by the parties themselves that the relationship was felt to be equivalent to a marriage.’ 20 Ibid., 46. 21 Ibid., 27-28. 22 Ibid. 23 Stone, Road to Divorce, 96. Probert, Marriage Law and Practice, 7-8; 166. 24 Field, "Clandestine Weddings at the Fleet Prison"; Jeremy Boulton, "Clandestine Marriages in

London: An Examination of a Neglected Urban Variable", Urban History 20 (1993), 191-210. 25 See Endelman, Radical Assimilation, 31. He mentions the 1729 marriage of David Lindo and

Lucretia Hosier in a public house before an Anglican priest, and the fact that Lucretia sued David for

desertion in the Consistory Court, for which see LMA: DL/C/0548/068, sworn statement of Isaac

Lindo dated 17 June 1731 in Lindo by guardian Mulior v Lindo by guardian Virum.

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out of marriage licences, and for ensuring that the couple had parental consent to

marry.26 The 1753 Act also abolished the espousal action which removed any

remedy before the ecclesiastical court regarding unfulfilled contracts per verba de

præsenti. Instead, proceedings had to be issued in a civil court to claim damages in

the common law action for breach of promise, which had existed to recover

pecuniary losses since the sixteenth century.27 The breach of promise action became

an increasingly popular form of redress because it allowed plaintiffs to recover

damages for the breach of promise itself, as well as for provable pecuniary losses.28

2.2 Sephardi Jews in the ecclesiastical courts

Until the Lindo case of 1795, English courts had not expressly declared marriages

between Jews celebrated in accordance with Jewish rites to be valid. But English law

was not entirely silent about Jews and their marriages. Tax legislation of 1694 –

which attempted to address the problem of clandestine marriage – included a

provision that ‘Quakers, Papists and Jews…who shall cohabit and live together as

Man and Wife’ had to pay a tax levied on marriage. These groups were singled out,

according to Probert ‘because they were the only groups that regularly – if not

inevitably – married according to their own forms’.29 To avoid legal recognition of

these groups’ marriages, the tax legislation stated that they were ‘pretended

marriages’ only.30 Yosef Kaplan points out a possible link between the 1694 tax

legislation and a 1693 amendment to the London Sephardi community’s Ascamot

that imposed a stringent fine of £25 on anyone who married without their parents’ or

the Mahamad’s permission.31 Although the dates do not coincide, it is conceivable

26 Probert, Marriage Law and Practice, 223, n.104; 1753 Act, section 8. Significant loopholes

remained, for example, a marriage was treated as void for lack of parental consent only when that

objection was made at the ceremony itself. See ibid., 222-228. 27 Ginger Suzanne Frost, Promises Broken: Courtship, Class, and Gender in Victorian England

(Charlottesville: University Press of Virginia, 1995), 14. 28 Ibid., 15. 29 Probert, Marriage Law and Practice, 165. 30 An Act for the granting to his Majesty certain rates and duties upon marriages, births and burials,

and upon batchelors and widowers, for the term of five years, for the carrying on the war against France with vigour 1694, 6 & 7 W. 3c. 6. s. 202 and s 203. Cited in ibid., 132, n. 6-8. 31 Yosef Kaplan, "The Abduction of a Girl in Order to Marry Her and Other Clandestine Marriages in

the Sephardic Community of London in the Early Eighteenth Century", in Portuguese Jews, New

Christians, and "New Jews": A Tribute to Roberto Bachmann, ed. Claude B. Stuczynski and Bruno

Feitler (Leiden: Brill, 2018). On transnational cooperation between the Mahamad of Amsterdam and

London to thwart the marriage of a couple fleeing from Amsterdam to London, see

LMA/4521/A/01/03/001, Minutes of the Mahamad, 6 Tebet 5499/[6 December 1738], fol. 125.

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that the fine anticipated legislative intervention in relation to clandestine marriages,

which had already been mooted in three previous bills of 1689, 1690, and 1691.32 In

any event, the 1694 tax legislation left the issue of whether Jewish marriages were

valid in English law in limbo, a situation that remained unremedied by the 1753 Act.

It simply exempted Jews and Quakers from its provisions and thus did not alter the

‘ambiguous’ status of their marriages in English law.33 When Jews brought questions

about the validity of their marriages to the ecclesiastical courts, those courts had no

legislation to guide their approach to novel questions. Instead, they looked to general

principles of canon law and to rules of evidence to reach their conclusions.

Once Sephardi Jews chose to litigate in the ecclesiastical courts, their disputes had to

fit within the parameters of permissible causes of action heard by that court. My

discussion therefore foregrounds the legal and factual matrix of these actions to

illuminate how the particularities of English marriage law pre-and-post the 1753 Act

impacted the outcome of these cases.

2.2.1 Espousal action: Jacob Mendes Da Costa v Catherine Villa Real (1731-1733)

The Villa Real case was a typical pre-1753 Act contract per verba de præsenti

case.34 Jacob brought an espousal action where he sought the remedy of specific

performance of what he alleged was a contract per verba de præsenti, in which his

first cousin, Catherine (commonly known as Kitty), agreed to marry him after the

expiry of the year’s mourning period for her late husband.35 The case raised the

novel question of whether a Christian court had the power to grant an order for

specific performance to non-Christians whose marriage would not be solemnized in

Church.36 While the court accepted that, in theory, it could make such an order, it

was unnecessary for it to do so because it held that the exchange of promises

32 Probert, Marriage Law and Practice, 174, n. 47. 33 Ibid., 235, 315. See also Israel Finestein, Jewish Society in Victorian England (London: Vallentine

Mitchell & Co. Ltd, 1993), 56. He states that ‘As far as the Jews were concerned, this exception was

no more than an acknowledgement of their special and anomalous position since the Resettlement.’ 34 The case is unreported. Original pleadings, evidence and sentence are at Lambeth Palace Library. I cite from a verbatim account published in an anonymous pamphlet: The proceedings at large in the

Arches Court of Canterbury: between Mr. Jacob Mendes da Costa, and Mrs. Catherine da Costa

Villa Real, ... relating to a marriage contract [London, 1734]. 35 Kitty was an extremely wealthy heiress following the death of her elderly first husband, Joseph Da

Costa Villa Real, on 23 December 1730. They had married on 27 May 1727: Proceedings at Large,

45. 36 On whether a Jew had the right to bring an espousal action, see Chapter III, section 4.

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between the cousins was only a contract per verba de futuro, which could only be

enforced by specific performance where the couple had consummated their union,

which had not happened in this case.37

The Villa Real case appears to be a blatant breach of the prohibition against litigating

a religious matter – marriage status of two Jews – before a Christian court. Yet, the

case itself is devoid of any legal discussion concerning Jewish marriage rites, the

reason being that the couple’s exchange of vows did not invoke halakhic principles

at all, as the facts of the case demonstrate. Jacob visited Kitty during the mourning

period after the death of her first husband, when they renewed a close affection that

they shared as teenagers. Thereafter, they exchanged several letters and then, in

mid-January 1731, the following verbal exchange took place. Kitty said, ‘“Now

Jacob let us promise one another Marriage, You keep your Word, and I will keep

Mine…I will marry you when the Year is up from the Death of my Husband”, to

which Jacob replied, “Catherine Da Costa Villa Real, I will marry you at That

Time.”’38 Jacob claimed in court that this exchange constituted mutual binding

promises to marry in the present tense, the marriage to be solemnized after the year’s

mourning period expired.39 Kitty swore that she had said she would only marry

Jacob with her father’s consent, and ‘“that without such Consent she would never

marry him.”’40 When Kitty’s father discovered their plans, he was furious and

refused to consent to the marriage. All contact ceased, apart from a flurry of activity

in the summer of 1731 when the couple planned an elopement, which was thwarted

when Kitty’s parents discovered the plan. By the time the year’s mourning period for

her late husband had ended, Kitty appears to have had second thoughts about

marrying Jacob and refused to see him. On 13 January 1732, Jacob served Kitty with

notice of his intention to sue her, accompanied by a letter that set out the Anglican

vows of marriage, which he asked Kitty to sign by way of consent. Kitty refused to

sign the letter and the case went to trial.41

37 Proceedings at Large, 323-327. Judgment of Dr Bettesworth, 25 June 1733. No legal significance

flowed from the cousins calling each other ‘husband’ and ‘wife’ in their letters after their exchange of

promises: see Probert, Marriage Law and Practice, 52. 38 Proceedings at Large, 7-8. 39 Ibid., 8. 40 Ibid., 47. 41 Ibid., 268.

152

Since the couple had not performed any Jewish marriage rites throughout their

relationship, pursuing a claim against Kitty in a bet din was simply untenable, given

the complete absence of any halakhic basis for it. Jacob therefore had no alternative

but to issue proceedings in the Christian court because it was the only way in which

he could force Kitty to marry him. While it is conceivable that Jacob had genuine

affection for Kitty, witness testimony in the case and his subsequent actions

underscore a financial motive for Jacob’s legal manoeuvres. Rachael Suasso, the

wife of the Honourable Isaac Baron Suasso D’ Auvergne Le Grand, deposed that

Jacob had ‘“courted [Kitty] for the sake of her Money, and not for the Love of her

Person.”’42 Joanna Mendes Da Costa, Jacob’s mother deposed that Kitty ‘“intended

to marry [Jacob], without any Settlement of his or her Estate being first agreed upon

and made.”’43 Without a marriage settlement to protect at least part of her fortune, all

Kitty’s property would come under the absolute and sole control of her husband.44

An order for specific performance of Kitty’s promise was thus Jacob’s route to

immediate access to her fortune. After Jacob lost his espousal action, he tried and

failed to obtain a contractual remedy of damages for pecuniary losses – which he

claimed were £100,000 – in a contractual breach of promise action in the Court of

King’s Bench.45

The Villa Real case’s factual and legal background shows the degree to which both

Kitty and Jacob were acculturated to English social, cultural, legal, and religious

norms.46 Although it is possible that Kitty was aware from her previous Jewish

marriage of the disadvantages to her of kiddushin – the first step in Jewish marriage

rites was a binding betrothal in halakhah which could only be unravelled by a get –

42 Ibid., 229. Jacob was the son of a wealthy merchant, John (Abraham) Mendes Da Costa who had

‘lost his fortune’. See Edgar Samuel, "Anglo-Jewish Notaries and Scriveners", Transactions (Jewish

Historical Society of England) 17 (1951), 113-159. 43 Proceedings at Large, 158. 44 The rule of coverture subsumed a woman’s legal personality into that of her husband. He had full

control of her dowry and her moveable property transferred to him absolutely. Without a formal

marriage settlement, Jacob would have had access to all Kitty’s fortune. On married women’s

property rights, see Amy Louise Erickson, Women and Property in Early Modern England (London: Taylor & Francis, 1995), 24-25, 100. 45 Landa, "Kitty Villareal", 275, 277; "A Tryal Had in the Court of King's Bench before Lord Chief

Justice Hardwick, in an Action Upon the Case for Damages in Not Performing a Marriage Contract,

Brought by Jacob Otherwise Philip Mendes Da Costa against Catharine Da Costa Villa Real,

Widow", in Lansdowne MS (British Library). 46 Kitty subsequently converted to Christianity, married William Mellish, and baptised the two

children from her first marriage: Endelman, Radical Assimilation, 16.

153

and deliberately invoked English norms in making her promise to Jacob, it seems far

more likely that neither Kitty nor Jacob were sufficiently or at all familiar with

Jewish marriage practices to perform the kiddushin. It would also have required

them to procure two adult Jewish male witnesses discreet enough to keep the

kiddushin secret from Kitty’s family.

Although the Villa Real litigation did not overtly challenge rabbinical authority

because its factual matrix did not engage halakhah’s marriage laws, it did challenge

the community’s preference for arranging strategic marriages that augmented or

preserved family wealth and social position. From the community’s inception, the

Ascamot recognised the pivotal role parents played in choosing a suitor for their

daughters and in negotiating the financial terms of a marriage.47 Ascama 37 of the

foundational 1664 Ascamot provided that any man who gave kiddushin ‘to any

daughter of Israel against the will of her parents’ would be excommunicated.48

While historians have termed secret kiddushin ceremonies among Western-Iberian

Sephardim ‘clandestine marriage’, in an English legal context that term had the

technical meaning explained above.49 These secret marriages were part of the

growing societal trend of ‘affective individualism’, according to which couples

privileged their autonomous, individual choice of marriage partner for romantic

reasons above family or communal interests.50 By the time of the Villa Real scandal,

the London community had already experienced several secret marriages.51 The

Mahamad had attempted to address this problem by amending the Ascamot in 1677,

1693 and 1713. In 1677, the Mahamad was given the power to consent to a marriage

of an orphaned girl, and in 1693 (probably responding to the taxation of marriages),

a second amendment stated that marriages without parental consent would be

annulled, and the groom fined.52 Since the age of majority for men and women was

47 Trivellato, Familiarity of Strangers, 133-135. 48 Barnett, El Libro De Los Acuerdos, 12. 49 Yosef Kaplan, "Moral Panic in the Eighteenth Century Sephardi Community of Amsterdam: The

Threat of Eros", in Dutch Jewry: Its History and Secular Culture (1500-2000), ed. Jonathan I. Israel

and R. Salverda (Leiden: Brill, 2002), 103-123; Matt Goldish, "Passion at the Periphery: The

Contexts of a Clandestine Converso Conjunction", Zutot 1 (2001), 124-132. 50 Lawrence Stone, The Family, Sex and Marriage in England, 1500-1800 (New York: Harper &

Row, 1977), 221-269. 51 Kaplan, "Abduction of a Girl". 52 Ibid., 693. Citing at n. 7, LMA/4521/A/01/01/005, Ascamot 5437-5488, par. 25, p, 16.

Interestingly, the Bet Din in the Lindo case acknowledged that, although it was halakhically permitted

for communal authorities to annul kiddushin, this had never occurred in the London community. See

LPL: Arches D 146, microfiche 757, fol. 913-914, Bet Din Answers to Sir William Scott.

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21 years of age in English law, a 1713 amendment stated that any young person

‘whatever their age’, who was still under their parents’ supervision, needed parental

consent to marry. The emphasis on parental supervision, even of children who in

theory had reached the age of majority, spotlights that parental approval of marriage

partners had a much wider purpose than preventing marriage at too young an age.

Research on the Amsterdam Sephardi community’s marriage patterns shows that the

average age for first marriage was mid-to-late twenties.53 More drastically, the 1713

revision also widened the ambit of parental control by replacing the reference to

kiddushin with language that was clearly designed to encompass English modes of

irregular marriage, including Fleet marriages and contracts per verba de præsenti.54

A lasting consequence of the Villa Real scandal was the new Ascama 66 of 1733

which annulled previous rules. Ascama 66 provided that any young man or woman

who was still subject to parental supervision was forbidden without parental consent

from giving or taking kiddushin or becoming engaged in any manner whatsoever

(even with Christian witnesses), or signing marriage bonds ‘by any…promissory

note or other instrument to [that] purpose’, or marrying ‘with ceremony, against our

Holy Law’. A system was implemented to report mere suspicions about a possible

secret marriage.55 No person could ‘give or take’ kiddushin except before the duly

authorised Ḥakham or other official.56 They were to draw up all ketubot and

officiate at the sibca berahot (the pronouncement of the seven wedding benedictions

under the ḥuppah). Anyone infringing the rules was to be fined £10.

53 Julia R. Lieberman, "Childhood and Family among the Western Sephardim of the Seventeenth

Century", in Sephardi Family Life in the Early Modern Diaspora, ed. Julia R. Lieberman (Waltham

MA: Brandeis University Press, 2011), 129-176: 136. 54 Responding to the 1710 attempt by Isaac Coronel to obtain a marriage licence to marry Rebecca de

Aaron Pereira before a corrupt priest, and the 1713 plan of Daniel Cohen de Azevedo to lure Abigail

López Pereira into marriage: see Kaplan, "Abduction of a Girl", 395. 55 For an early example of punishing the ‘groom’ for clandestinely giving kiddushin, contrary to the

revised Ascama 66, see LMA/4521/A/01/03/001, Minutes of the Mahamad, 17 Veadar 5497/[7

February 1737], pp.114-115, Semuel da Silva Mezurado and Rachel, daughter of Jacob de Porto. cf.

ibid., 17 Iyar 5498/[26 April 1738], fols.121-122, Ishac Pretto to Benvenida Nunes Garcia. A female witness invalidated the kiddushin but the Mahamad conceded that the couple’s marriage ceremony

would be valid under the ‘law of the land’ (presumably but not stated in the text because the couple

had made a contract per verba de præsenti) and so no-one could swear in Chancery that the couple

were not married. The Mahamad pragmatically resolved this problem by ordering that the couple be

married before the Ḥakham under the ḥuppah, thus avoiding an English court ruling about whether

English marriage law governed aspects of Jewish secret marriages. 56 Kaplan, "Moral Panic", 118.

155

2.2.2 Jactitation of marriage: Lindo v Belisario (1793-1796)

Nearly sixty years after the Villa Real case, the competing claims of the Christian

and Jewish courts to exclusive jurisdiction over Jewish marriage found expression in

the Lindo case of 1795.57 At first sight, the socio-economic background of the parties

in the two cases appear similar. Esther Lindo was also a wealthy heiress whose

suitor, Aaron Mendes Belisario, was far below her in terms of economic standing.58

The couple may not have been first cousins, but they had close kinship ties because

Aaron’s brother, Jacob Mendes Belisario, was married to Esther’s elder sister, Grace

Lindo.59 The dissimilarities were more striking. Unlike Kitty Villa Real, Esther was

sixteen and could only marry and inherit under the terms of her late mother’s will

with the consent of its executors.60 Although Esther and Aaron’s families were

undoubtedly acculturated to English social and cultural norms, both families

remained intimately connected to the Sephardi community, its governing lay elite,

and to its rabbinical authorities. Moreover, the legal issues were radically different

from the Villa Real case, where the ecclesiastical court had to apply familiar

Christian principles to the exchange of vows between the Jewish couple. Now, in

the Lindo case, the court was asked to decide the validity of a marriage between two

Jews that had been celebrated in accordance with Jewish marriage rites.

Conceptually, the case fell outside the ambit of the 1753 Act because Jews were

exempted from its provisions. Accordingly, the court had to fall back on general

evidential principles and decide the validity of the marriage ceremony in accordance

with the legal principles that governed it, in this case the applicable halakhic rules

that dictated when a Jewish marriage was absolutely binding and valid to confer on

the couple the full legal status in Jewish law of husband and wife.

57 Lindo v Belisario (1795) (Consistory Court of London) 1 Hag. Con. 215, 161 Eng. Rep. 530 and

Lindo v Belisario (1796) (Court of Arches), 1 Hag. Con. (App) 7, 161 Eng. Rep. 636. For a narrative account of the judgments, see Bentwich, "Anglo-Jewish Causes Célèbres", 101-105. 58 LMA: DL/C/0562/192, Court of Chancery Guardianship Order described Belisario as an

unemployed ‘[m]ender of watches’, without property and supported by his mother and family. 59 LPL Arches D 146, microfiche 735, fol. 185, Aaron Mendes Belisario Answer to Libel. Despite

these close family connections, Moses Lindo deposed that Aaron had ‘never been received or allowed

to visit’ his family. See Ibid., microfiche 755, fol. 842v. 60 Lindo (1796) 161 Eng. Rep. 639.

156

The facts

On 23 July 1793, Aaron made Esther an ‘offer of marriage’ which she ‘did freely

accept’ and a marriage ceremony took place on Friday 26 July in the home of

Belisario’s brother. ‘[T]wo credible persons of the Jewish Nation’, the Ashkenazim,

Abraham Jacobs and Lyon Cohen, witnessed the ceremony.61 According to Aaron’s

account of the ceremony, he said to Esther, ‘“Do you know, that by taking this ring

…you become my wife? to which she answered, “I do.” That he then said to her,

“Do you take this ring freely, voluntarily and without force? to which she answered

“I do…”.’62 In the presence of the two witnesses, Aaron placed a ring on the

forefinger of Esther’s left hand and repeated to her in Hebrew the kiddushin

consecration declaration. The couple parted immediately after the ceremony and did

not consummate their ‘union’. They informed Belisario’s family of the ceremony

but kept it secret from the Lindo family until Moses Lindo, Esther’s brother

discovered what had happened.63

The legal issues

When Moses Lindo discovered what had happened, he faced two separate legal

issues: firstly, how could he keep the couple apart and, secondly, was this marriage

ceremony valid?

Moses Lindo’s interim solution to the first issue was to confine Esther to a room in

his home, without her consent, and to forbid her from seeing Belisario.64 On 31

August 1793, Lindo and his fellow executor of Esther’s mother’s will, Abraham De

Mattos Mocatta, applied to the Court of Chancery to make Esther a ward of court

and Mocatta her legal guardian. A guardianship order was formally made on 16

October 1793 and an injunction was issued against Belisario legally restraining him

61 Lindo (1795) 161 Eng. Rep. 533. 62 Ibid. 63 Ibid., 538.; LPL Arches D 146, microfiche 748, fol. 644, Deposition of Esther Lindo in which she

denied living or cohabiting with Belisario. 64 A servant acted as a go-between passing letters between the couple. See, Lindo (1795), 161 Eng.

Rep. 533; LPL Arches D 146, microfiche 739, fol. 388, Deposition of Rachel Reeves. On the role of

servants as witnesses, see Smith, "Women and Marriage", 83-85. Belisario exhibited the couple’s

letters, from which Esther’s affection for Belisario is obvious.

157

from ‘visiting or corresponding’ with Esther.65 It is unclear whether Moses Lindo

and Mocatta asked the Mahamad for permission to apply for the guardianship order

to protect Esther from (as the executors saw it) the exploitative and underhand

machinations of Belisario. Given that the Ascamot expressly forbade clandestine

marriages, and the powerful influence of Lindo and Mocatta as lay leaders of the

community, it seems very unlikely that the Mahamad would have refused such

permission had the two men asked for it.

Moses Lindo first attempted to find a halakhic solution to the second issue of the

validity of marriage before the ecclesiastical court proceedings commenced.

According to the evidence Lindo would submit later to the Consistory Court, he only

instructed his attorney to commence the 31 August 1793 guardianship proceedings

after he had proposed to Belisario that he grant Esther ‘a divorce from the

Engagement’, at which time he told Belisario that Esther would be free to marry

whomsoever she pleased after she attained the age of 21 years.66 Lindo’s evidence

also established that, at some unspecified point before Mocatta issued the

ecclesiastical court proceedings, Belisario refused to give Esther a divorce.67 Lindo

also admitted in his evidence that he had consulted Rabbi Hasday Almosnino, the

head of the Bet Din, about the steps that needed to be taken in relation to such

divorce, but the exact timing of their meeting is unspecified.68

Had Belisario agreed to give Esther a divorce when Moses Lindo proposed it to

Belisario in late August 1793, the entire matter would have been settled consensually

within the community. Since Belisario’s consent was not forthcoming, Mocatta and

Moses Lindo’s next step was to seek the Bet Din’s formal opinion and, on 17

September 1793, they wrote to the Mahamad asking whether the Bet Din ‘may

examine if any…transaction have taken place & if it have whether the Kidussim be

valid’.69 Following instructions from the Mahamad to examine the case, the Bet Din

65 LMA/DL/C/0562/192; LPL/Arches/Aa 90, fol.31; LPL/Arches D 146, microfiche 755 fol. 845. On

Court of Chancery wardship applications in clandestine marriage cases to protect minors, see Rebecca Probert, "Control over Marriage in England and Wales, 1753-1823: The Clandestine Marriages Act

1753 in Context", Law & Hist. Rev 27 (2009), 413-450: 441-45. 66 LPL, Arches D 146, microfiche 755, fols. 852-853, Deposition and Answers to Interrogatories of

Moses Lindo. 67 Ibid. at fol. 855. 68 Ibid. at fol. 853v. 69 LMA/4521/A/01/03/004, Minutes of the Mahamad, 13 Tisry 5554/19 September 1793 fol. 267-268.

158

held two hearings in early October 1793 at which the couple and the witnesses to the

ceremony gave evidence. The Bet Din then wrote to the Mahamad that they found

there had been a ‘Kidusin Saphek’ (safek kiddushin), a doubtful betrothal and

advised that, if the couple wished to remain married, they needed to repeat the

kiddushin or, if they wished to part, Esther had to be given a formal get (divorce).70

The reason for their unusual ruling was that one of the witnesses to the original

ceremony had misidentified Abigail Lindo, Esther’s sister who had accompanied her

to the hearings, as Belisario’s bride.71 As the halakhic formalities concerning

kiddushin required the identity of the bride to be certain, the misidentification alone

was enough to establish that there had not been a ‘complete betrothment’ (‘kidussey

vaday’ or ‘kidussin guemurim’) between the couple.72 A doubtful kiddushin ruling

had significant consequences for the couple because, halakhically, Esther was an

arusah (an affianced bride) and so was forbidden from marrying another man until

Aaron gave her a get. Aaron, on the other hand, was free to give kiddushin to another

woman but, of course, that was not the legal outcome he desired. He wanted all the

rights a Jewish husband could demand: to live as husband and wife and to share in

his wife’s wealth. Thus, from both parties’ perspectives, the Bet Din ruling failed to

give them a remedy.

Having failed to resolve the validity of marriage issue before a Jewish court, Moses

Lindo and Mocatta were offered the alternative avenue of litigating in the

ecclesiastical court, which materialised during the guardianship hearings. Having

learned of the Bet Din’s doubtful betrothal ruling, the Lord Chancellor, sitting in the

Court of Chancery, issued an order on 4 November 1793 that Mocatta bring

proceedings in the Consistory Court in Esther’s name to decide the validity of

marriage issue.73 Unless Mocatta and the Lindo family were prepared to defy the law

70 Ibid., fol. 270. 71 Belisario alleged that the two sisters had deliberately dressed identically to create confusion, and

that the mischief was compounded by the Bet Din’s decision to hold the hearing at night by

candlelight. The ecclesiastical court rejected his evidence. 72 Transliterated terms are in LPL: Arches D 146, microfiche 757, fols. 911-912, Answers of the Bet Din to Sir William Scott. 73 LPL: Arches D 146, microfiche 730, fol. 145. For the Mahamad’s consent to the Bet Din providing

affidavit evidence as to the halakhic rules on kiddushin marriage to the Chancery Court, see

LMA/4521/A/01/03/004, Minutes of the Mahamad, 26 Hesvan 5554/(Thursday) 31 October - (Friday)

1 November 1793, fol. 276-278. Referral to the ecclesiastical courts was necessary because the

validity of Esther’s marriage was crucial to the legal proceedings: see Rebecca Probert, "The

Presumptions in Favour of Marriage", Cambridge Law Journal 77 (2018), 375-398: 381.

159

of the land, they were required by court order to issue proceedings in the

ecclesiastical court, which they did on 28 November 1793.

The form of Esther’s action was for jactitation of marriage, alleging that Aaron had

‘falsely and maliciously’ boasted of a non-existent marriage to her, the remedy for

which was a court order that Belisario cease making his claim to be married to

Esther and be perpetually silent about it.74 Aaron’s defence was to admit that his

boast of a valid marriage to Esther was justified because the kiddushin ceremony was

a ‘true & valid marriage for persons professing the Jewish religion’.75 Esther’s

expert evidence stated that kiddushin was ‘only a betrothing’ but not a ‘complete

betrothment’ and described her status as a ‘doubtful betrothed’.76 If the court

accepted Aaron’s justification argument, he would have been entitled to demand a

decree restoring his conjugal rights, unless an intervening circumstance made that

impossible.77 It would be possible, therefore, for Aaron to secure a remedy in the

ecclesiastical court that he had failed to obtain before the Bet Din. In the event,

Aaron’s defence failed, because both Sir William Scott, sitting as first instance judge

in the Consistory Court of London in June and July 1795, and Sir William Wynne,

who heard Aaron’s appeal in 1796 in the Court of Arches, ruled that the kiddushin

ceremony was a betrothal only and not a complete marriage.78 Both judges rejected

the evidence of Aaron’s halakhic experts that kiddushin itself was a complete

marriage. Since kiddushin alone did not entitle a Jewish man to the core civil rights

of English marriage – conjugal and property rights – Aaron could not be regarded as

Esther’s husband. The position of the parties was now certain in the eyes of English

law; they were not married. However, as an arusah, Esther was left in limbo in

74 LPL/Arches D 146, microfiche 730, fol.134. Stone defines jactitation as ‘a court-ordered injunction

to the defendant to cease all claims to a marriage based merely on a verbal contract …’. Stone, Road

to Divorce, 77. 75 LML/Arches D 146, microfiche 732, fols.203-206. On grounds of defence, see Thomas Poynter,

"Of a Suit of Jactitation of Marriage Chapter XIX", in A Concise View of the Doctrine and Practice of

the Ecclesiastical Courts in Doctors' Commons, on Various Points Relative to the Subject of

Marriage and Divorce (Philadelphia: J.S. Littell, 1836), 91-94: 94; Probert, "Presumptions", 379. 76 Lindo (1795), 161 Eng. Rep. 530 at 531-532. 77 Poynter, "Of a Suit of Jactitation", 94. 78 Both judges had been involved in Vigevena and Silveira v Alvarez (1794), unreported, an

inheritance case where the legitimacy of an heir depended on whether his parents had validly married

according to Jewish rites. Since the case settled, the point was never decided but the trial judge, Sir

William Wynne, indicated that he would have accepted that the mode of proof of marriage between

Jews was whether the ceremony was ‘conformable to the Jewish rites.’ Mentioned in Sir William

Wynne’s judgment in Lindo (1796), 1 Hag. Con. (App) 7; 161 Eng. Rep. 636-637.

160

Jewish law as she still required a formal divorce from Aaron before she was free to

marry another man.

A failure of legal pluralism?

As explained in Chapter III, England did not have a comparable system of

‘embedded justice’ to that of Amsterdam where Jewish courts were accepted as an

appropriate forum to decide Jewish legal issues. From a legal pluralism perspective,

Jewish courts in England were not integrated into the English legal system at all,

and, before the Lindo case was heard, it is uncertain whether English courts were

even aware of their existence. One of the consequences of Jewish voluntaristic status

was that individual Jews had complete freedom to submit disputes to Jewish courts

and to consider themselves bound by their rulings. Equally, individual Jews were

entitled to access English courts, and the eighteenth-century ecclesiastical courts

asserted that their exclusive jurisdiction over marriage issues entitled Jews to litigate

before them. The Lindo case established that the only caveat to this position was that

the ecclesiastical courts were not prepared to require Jews to submit to any

ecclesiastical remedy the effect of which would be to compel Jews to participate in

Jewish marriage rites or comply with other halakhic rules (such as Jewish divorce).

Yet, the Lindo case did establish a narrow space in which halakhic principles were

recognised by the English legal system, namely, that disputes about the validity of a

Jewish marriage should be decided according to Jewish rather than Christian

marriage law. Even then, it is important to acknowledge the considerable problems

that the ecclesiastical judges encountered in disassociating English legal concepts

and language concerning Christian marriage, from concepts in a religious legal

system which did not fit neatly into civil or canon law legal categories. Their

difficulties are a fascinating historical example of Teubner’s insight that the

communicative processes between state courts and other legal orders inevitably lead

to distortions. Teubner describes a process of ‘productive misreading’ of legal

concepts by which the state and other legal orders make sense of one another.79 In

theory, the process of deciding the Lindo case was clear; the parties submitted expert

evidence of fact as to the applicable halakhic principles governing Jewish marriage

79 Teubner, "Two Faces of Janus", 1447.

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rites and the ecclesiastical court applied those principles to Esther and Aaron’s

situation. The forum for dispute resolution might be a Christian court, but the law it

had to apply was halakhah.80 In practice, however, the ecclesiastical court judges

appealed to Christian ideas of what constituted valid and binding marriage and in so

doing ‘jurispathically’ (to borrow Cover’s term) stifled the halakhic complexities of

the very rules that the court intended to apply.

The problem of translating halakhic legal principles into English legal language

began at the pleading stage when complicated, interlocking halakhic rules had to be

summarised and rendered into English legal language intelligible to the Christian

Court.81 Other linguistic issues included that the depositions of two of the experts

(Solomon Mordecai Ish Yemini for Belisario and Hasday Almosnino for Lindo)

were translated from their original Spanish. Belisario’s experts also struggled with

the court’s reliance on John Selden’s Latin translations of the Mishnah, Gemara and

Maimonides. Confusion arose from Seldon’s use of verè uxor (truly a wife), which

did not replicate the talmudic terminological distinction between a betrothed bride

and a married woman.82 Sir William Scott described the attempt in Esther’s pleading

to translate safek kiddushin into English legal language (a doubtful betrothal but not

a complete betrothment) as ‘not very intelligible’. To him, ‘doubtful’ implied that

the Bet Din was incapable of rendering a definitive judgment, rather than a separate,

halakhic category of kiddushin. This misunderstanding prompted Scott to ascertain

for himself what – as a matter of fact – had transpired between the couple and he

accepted the couple’s depositions in which they admitted being the participants in

the ceremony.83 Thus, the issue of the misidentification of the bride, which had

played such an important role at the Bet Din hearing, fell away and their ruling of

safek kiddushin ruling was disregarded. That left the legal question of what

constituted effectual and complete matrimony in Jewish law.

The next problem for the court was that the parties’ pleadings took diametrically

opposed positions on the relevant halakhic principles. Esther’s pleading argued that

80 cf. the position in the Metz courts which were guided by a French translation of the Shulḥan

῾Arukh, see Berkovitz, Protocols, 117-118. 81 Lindo (1795) 161 Eng. Rep. at 543. 82 Lindo (1795) 161 Eng. Rep. at 543. 83 Ibid., at 532.

162

a complete Jewish marriage was created for all purposes after the signing of ‘a

formal contract…according to the rites and ceremonies of the Jews’ drawn up by the

‘priest who marries them’, which was registered ‘in a certain book kept for that

purpose’.84 This purported to reference the normative marriage practice among

eighteenth-century Portuguese Jews, which followed the post-talmudic practice that

fused the two parts of Jewish marriage – kiddushin (or erusin) and nissu’in – into a

single ceremony before a rabbi, at which the groom handed the ketubah (marriage

contract) to his bride. The community’s Ascamot termed the public ceremony Hupa

(ḥuppah).

In analysing Esther’s supporting expert evidence from the dayyanim of the Bet Din,

Sir William Scott realised that Esther’s own experts disagreed with her pleading that

a complete Jewish marriage only arose after a Hupa ceremony. David Henriques

Julian argued that kiddushin together with consummation of the marriage also

created a ‘good and lawful marriage’.85 Hasday Almosnino described Hupa as

‘customary’ rather than essential, while Isaac Delgado clarified that kiddushin and

consummation was necessary according to biblical law (de-oraita), and that all the

other rules concerning marriage, including a ketubah were rabbinical rules (de-

rabbanan) only.86

Belisario’s pleading and his experts maintained that kiddushin alone was necessary

to create a complete, binding, and valid Jewish marriage. He submitted evidence of a

1766 kiddushin between Benjamin Mendes Henriques and his bride, Rabbia de

Matta Henriques, the validity of which had been considered by Ḥakham Moses

Cohen D’Azevedo in 1778. The Ḥakham ruled that the kiddushin was ‘valid and

binding’ though the couple were living in ‘venial sin, but not criminal’ since they

had lived together and had children without a ketubah or the performance of a

ḥuppah ceremony.87 Belisario’s experts submitted that kiddushin was effective to

84 Lindo (1795), 161 Eng. Rep. 530 at 533. 85 Ibid., at 534. 86 Ibid. All the experts based their opinions on rabbinical sources, not on historical reality, about which see Michael Satlow, "Rabbinic Views on Marriage, Sexuality, and the Family", in The

Cambridge History of Judaism: Vol. 4: The Late Roman-Rabbinic Period, ed. Steven T. Katz, The

Cambridge History of Judaism (Cambridge: Cambridge University Press, 2006), 612-626; Jewish

Marriage in Antiquity (Princeton: Princeton University Press, 2001). 87 LMA: DL/C/0562, Matrimonial and Testamentary Papers, Lindo v Belisario; contemporaneously

recorded in LMA/4521/A/01/02/002, Orders and Resolutions of the Mahamad, 26 Adar 5538/[25

March 1778] and 12 Nisan 5538/[9 April 1778].

163

create a complete and valid marriage according to biblical law when the groom

passed the bride something of value, such as a ring. Nothing could impugn the

validity of such kiddushin except fraud. However, they conceded that kiddushin did

not give a groom property rights to his bride’s marriage portion. They also accepted

the general principle that the rulings of a Bet Din were to be obeyed, and that, as a

matter of fact, the Bet Din had ruled that this was a case of safek kiddushin.

Sir William Scott appealed by way of analogy to canon and natural law concepts to

interpret the conflicting expert evidence.88 He likened the Benjamin Mendes

Henriques marital arrangement to a clandestine and irregular marriage and argued

that Esther and Aaron’s kiddushin would be considered a marriage under natural law

principles because ‘a mutual engagement, or betrothment, [was] a good marriage,

without consummation’. This language directly invoked Christian notions that a

binding marriage was created by the mutual exchange of vows without

consummation. He then compared betrothment and marriage in Jewish law to

‘sponsalia and nuptiæ in Christian canon law’ and concluded that the kiddushin

ceremony was a betrothment and not a marriage. The final step in his reasoning was

to consider the substantive and practical effect of kiddushin that had been touched on

in the expert evidence. Reasoning by analogy, Scott concluded that kiddushin was a

‘solemn engagement’ and that consummation was necessary for a ‘complete

marriage’ in halakhah.89 Interestingly, the fact that Jewish law and custom had a

separate concept of engagement (shiddukhin), in which a couple mutually promised

to marry one another in the future and customarily documented their arrangement in

a marriage settlement deed, was not mentioned in the case.90

Realising that the expert evidence on the law of kiddushin was altogether too

imprecise, Scott formulated a list of seven questions for the experts to answer and

adjourned the case until they had been submitted to him.91 In their answers, the Bet

Din (who provided a single opinion) and Aaron’s two experts explained the legal

88 Lord William Wynne in the Lindo appeal to the Court of Arches endorsed this reasoning: ‘The Christian Court, as it is called has no power upon that law [i.e., Jewish law] but by analogy.’ See

Lindo (1796) 161 Eng. Rep. 636 at 639. 89 Lindo p. 538. 90 Ben-Zion Schereschewsky, "Betrothal", in Encyclopaedia Judaica, vol. 3, eds. Michael Berenbaum

and Fred Skolnik (Detroit: Macmillan Referencing USA in association with the Keter Publishing

House, 2007; 2nd ed.), 539-541: 539. 91 Lindo (1795) 161 Eng. Rep. 530 at 540.

164

consequences of kiddushin in greater detail.92 At the resumed hearings on 4 August

and 16 September 1795, and with the benefit of the answers, Scott gave a second

judgment in which he acknowledged that the evidential deficiencies so far had led

him prematurely to dismiss the Bet Din’s decision of safek kiddushin. He now

understood that ‘a doubtful betrothal’ was a separate halakhic category of kiddushin

used when Jewish judges could not definitively say whether kiddushin was either

perfect or defective.93 The evidential clarifications did not, however, prevent Sir

William Scott from eliding Jewish and Christian marriage law concepts. The main

point, he argued, was whether ‘a nudum pactum, without consummation, was a

complete marriage’ and whether ‘a nudum pactum of this kind’ resulted in a ‘right to

compel the woman, by the Jewish law, to a surrender of her person in the way of

matrimonial rights?’94 On this point, he accepted the Bet Din’s clarification that

kiddushin – as he summarised the halakhah – was

‘a contract absolutely determinable at the will of the woman that, if called

upon by Mr Belisario to fulfil the engagement, she has nothing to do but to

say that she detests him and does not choose to continue his partner. If that is

so, I should have great difficulty in saying that there is an absolute vinculum

[bond] subsisting between them; I must therefore pronounce, if this

information is correct, that he has no right to consider himself as entitled to

the character of husband.’ (Emphasis added).95

On appeal, Sir William Wynne concurred in the result but on different grounds. He

ruled that

“… the question is … whether [Esther Lindo] is the wife of Aaron Mendes

Belisario or not? I think it is clear from the evidence that she is not; that the

ceremony which has passed, although it prevents her from marrying any

other man until a divorce is given, does not give him any authority over her

fortune or person. A man cannot be the husband of a woman by the law of

England, without having the civil rights, which he has not; and

92 Ibid., 541-545; LPL Arches 146, microfiche 757-760, Bet Din, Solomon Mordecai Ish Yemini,

Solomon Lyon Answers to Sir William Scott. 93 Lindo (1795) 161 Eng. Rep. 530 at 541. 94 Ibid., at 542. A nudum pactum is a naked promise which in this context meant a bare promise to

marry without consideration of any obligations arising on marriage. 95 Ibid., at 544. See also Lindo (1796) 636 at 644-645, Sir William Wynne. The quoted passage reflects the tenor of the Bet Din’s expert evidence that a husband had a right to demand that his

affianced bride proceed with the second stage of marriage, nissu’in or ḥuppah, but that, if she refused

to do so, and testified at a bet din that she detested the groom, he would immediately be required to

give her a divorce. The judges were aware from the expert evidence of a halakhic disagreement about

whether a groom could be compelled to divorce and understood that coercive measures could not be

used to compel the affianced bride in this situation to submit to the groom. See also LPL Arches 146,

microfiche 757-758, fols.916v-921r, Bet Din Answers to Sir William Scott.

165

therefore…the sentence given… is perfectly right, and I shall confirm it.’

(Emphasis added).96

The italicised language in both judgments reflected the English legal concepts on

which the two judges’ rulings ultimately rested. To alter a woman’s status in

English law from that of a single woman to a wife required the complete fulfilment

of the civil rights attaching to marriage, the right of a husband to conjugal relations

with his wife and the right for all her property to pass to him absolutely. Halakhic

principles had become readable by analogous reasoning to established Christian

ideas of the creation of a binding marriage. While such reasoning (per Teubner)

facilitated a communicative language between the Christian and halakhic systems, it

did so at the expense of negating the existence of an intermediate position of Jewish

betrothal, whereby an arusah remained bound to a man until he divorced her,

notwithstanding that he had no conjugal rights or access to her property.97 Bringing

English legal concepts into the arguments had diverted the judges’ attention from the

halakhic consequences of the Bet Din’s ruling, which was that Esther remained tied

to Aaron, who would not give her a divorce. Esther had won her case but had no

enforceable remedy to free herself from Aaron in Jewish law. It had become

apparent, therefore, that despite the ecclesiastical court’s recognition of a pluralist

space in which Jewish law governed the validity of marriages between Jews, there

were difficult consequences for individual Jewish litigants who found themselves in

a position where they had no effective legal remedy in either the Jewish or

ecclesiastical courts.

Although scholars have extensively discussed the Lindo case from various angles, I

could find no reference about what happened to Esther after the Lindo litigation. This

was particularly frustrating because the litigation left Esther in the position of an

agunah, a woman bound to a man who refused to divorce her. Intrigued to complete

her story, I reviewed the communal archive and discovered an extraordinary end to

her story. Remarkably, the denouement to the Lindo litigation was that Esther finally

managed to free herself from Aaron in the Jewish judicial space. An enigmatic entry

in the Mahamad Minutes of 11 October 1795 records that the Bet Din sought and the

96 Lindo (1796) 161 Eng. Rep. 636 at 646. 97 Louis M. Epstein, The Jewish Marriage Contract: A Study in the Status of the Woman in Jewish

Law (New York: Jewish Theological Seminary of America, 1927), 286-287.

166

Mahamad gave their permission for Esther to add several points to the Bet Din’s

original din torah ruling.98 On 23 November 1795, the Mahamad considered a letter

dated 4 Kislev 5556 (16 November 1795) from the Bet Din, from which it is

apparent that Esther must have requested a divorce, which Belisario had continued to

refuse to provide her. The letter stated that new written evidence had been brought

to the Bet Din’s attention that proved Belisario had tried to exploit Esther’s position

as a young, vulnerable orphan for his financial advantage. In view of the new

evidence, the Bet Din declared the original kiddushin to be null and void and of no

effect.99 At a stroke, Esther was free to marry whomever she pleased and, in 1800,

she married another congregant, Peligren (Peregrine) Fernandes.100 It was possible to

trace their life together from birth and death records, which revealed that the couple

eventually chose what Endelman describes as ‘radical assimilation’; Peregrine

converted to Christianity, all nine of their children were baptised and both Esther and

Peregrine were buried in a Christian churchyard.101

2.3 Validity of marriage disputes in the Jewish judicial space

In 1772, Isaac Ximenes Cardoso (“Ximenes”), the father of a runaway bride, asked

the Mahamad for permission to go to the law of the land. Permission was granted but,

although Ximenes issued ancillary proceedings to secure his daughter’s return,

proceedings in the ecclesiastical courts never materialised because there was no legal

98 LMA/4521/A/1/03/005, Minutes of the Mahamad, 29 Tisri 5556/11 October 1795, p. 62.

Unusually, the meeting took place on a Sunday evening. 99 Ibid., 11 Kislev 5556/23 November 1795, pp. 70-73. 100 Belisario made a last-ditch attempt to impugn Esther’s marriage: see Ibid. p. 269, letter dated 26

March 1800 from Belisario to the Mahamad asserting that Esther had taken kiddushin from him and

could not marry without a divorce; he subsequently made complaints against the Bet Din and

Fernandes: see LMA/4521/A/01/21/004, 27 Elul 5560/17 September 1800, Aaron Mendes Belisario v

Senhores do Bet Din; Belisario v P Fernandez; 29 Hesvan 5561/17 November 1800, Belisario v P

Fernandez. For Esther’s marriage, see p. 113 entry 1367 in Lionel D. Barnett, ed. Bevis Marks

Records Being Contributions to the History of the Spanish and Portuguese Congregation of London

[...]: Part II Abstracts of the Ketubot [...] until 1837 with Index, 5 vols., vol. 2 (Oxford: Printed at the

University Press by Charles Batey, 1949). This records the marriage between Gereson de Moseh

Fernandes and Ester de Elieu Lindo 28 Adar 5560. Peligren’s birth is recorded as Guerson or

Perregrine Fernandes born to father Moses and mother Ester on 2 August 1777 /28 Tamuz 5537, p. 5,

sheet 12 in Miriam Rodrigues-Pereira and Chloe Loewe, The Birth Register (1767-1881) of the Spanish & Portuguese Jews' Congregation of London (London: The Spanish and Portuguese Jews'

Congregation, 1993). 101 The baptisms took place at St. Andrew, Holborn, London. Esther was buried in Bath Abbey,

Somerset on 17 August 1861, aged 84 years: Somerset Heritage Service; Taunton, Somerset,

England; Somerset Parish Records, 1538-1914; Reference Number: D\P\ba.ab/2/1/13. (Ancestry.com

Accessed 14/07/2021).

167

issue – in English or Jewish law – that proved necessary for it to decide.102 The

runaway marriage of Sarah Ximenes and Joshua Lara (the ‘Ximenes case’) had greater

repercussions on the London community’s procedures for controlling marriage than

the Lindo case, and posed a more sustained attack on the Mahamad’s self-

understanding of its powers to control the choice of marriage partner.103 From a legal

perspective, however, the Ximenes case exemplified that halakhic solutions to validity

of marriages cases were the most effective means of preventing congregants from

litigating in the Christian ecclesiastical courts.

As in the Villa Real and Lindo cases, the Ximenes romance was borne out of close

kinship ties within the social circle of London’s affluent Sephardim. Abigail, Sarah

Ximenes’s sister, and her husband, Joseph Capadose, were friendly with Joshua Lara’s

sister, Clara Furtado and her husband, Jacob Mendes Furtado. Sarah Ximenes and

Joshua Lara met each other in the company of their relatives on several occasions.

Their plan to elope was made on 22 June 1772, while Sarah Ximenes and Clara

Furtado were visiting Abigail Capadose at her country home. Jacob Mendes Furtado

arrived in a post-chaise.104 There is conflicting evidence as to what happened next, but

all sources agree that Sarah used the post-chaise to meet Joshua who gave her a ring

and pronounced the kiddushin declaration before witnesses. The couple then took the

packet ship to France and travelled to Paris where they married under a ḥuppah in a

Paris synagogue. They rented rooms in Paris, but (according to them) they did not

consummate their marriage.105

Between the London and Paris ceremonies, Sarah’s irate father discovered the

elopement and travelled to Paris but arrived too late to stop the synagogue wedding.

His fury must have been compounded by the fact that Sarah was his second daughter

to elope to Paris – the previous December (1771) Abigail had eloped with Joseph

102 LMA/4521/A/03/08/001, Papers relating to marriage of Sarah De Isaac Ximenes Cardozo and

Joshua de Aaron Nunes Lara. 103 Endelman, "Liberalism", 2-3. 104 LMA/4521/A/03/08/001/S, Affidavit of Joseph Capadoce before Lord Mayor William Nash, 21 August 1772. 105 LMA/4521/A/03/08/001/U-V, Sarah’s interrogatories given in Paris on 24 July 1772. For another

contemporaneous account postdating the interrogatories, see "A Letter, Addressed to the Overseers of

the Portugueze Jewish Synagogue, in Bevismarks, London, Upon Their Extraordinary Conduct in the

Dispute between Mr. Ximenes and Mr. Joshua Lara [...]", (1772). Published in Cecil Roth, ed.

Anglo-Jewish Letters (1158-1917) (London: The Soncino Press, 1938), 170-176; see also Hyamson,

Sephardim, 191-192.

168

Capadose and married him there. On that occasion, Isaac Ximenes was reconciled to

the marriage and the couple repeated their wedding ceremony on their return to

London two months later.106

Before he left for Paris, Ximenes obtained from the Ḥakham an excommunication

order of Joshua and his relatives. Once in Paris, Ximenes persuaded the French

authorities to arrest the couple and forcibly to part them and then, during the next

few days, he arranged for French lawyers to take detailed interrogatories from Sarah

with the aim of implicating Joshua and his relatives in a plot to seduce Sarah and

persuade her to elope. Meanwhile in London, on 17 July 1772, the Ḥakham made a

clarificatory order that his excommunication decree had been misconstrued as an

annulment of the Paris marriage, when in fact it had neither approved nor cancelled

it. On 31 July 1772, after being informed that Ximenes had used his original

excommunication order to procure the arrest and imprisonment of the couple, the

Ḥakham re-examined Ascama 66 and stated that Lara and his accomplices were not

presently excommunicated.107 On Ximenes’s return to London, the process of

excommunication began afresh with a formal complaint. After a series of hearings,

on 24 August 1772 a formal decree of exclusion from synagogal rights and

privileges was made against Joshua, Sarah, and Jacob and Clara Furtado for

infringing Ascama 66’s injunction against giving or taking kiddushin without

parental consent.108 However, no disciplinary process or communal disciplinary

authority could impeach the impeccable halakhic validity of Sarah Ximenes and

Joshua Lara’s kiddushin and marriage ceremony under the ḥuppah in Paris. From a

jurisdictional perspective, the case had been successfully adjudicated within the

community’s justice system without involvement of non-Jewish courts, apart from

106 Sephardim, 191-192. See also Bevis Marks Records (Vol. 2). Abigail Ximenes’s wedding is listed

twice, on 27 Tebet 5532 (3 January 1772) and 22 Adar 1 5532 (26 February 1772) with a note that the

latter was ‘effected on the reconciliation of the parties’. For the wedding announcement of the Paris

marriage in January 1772: "Marriages," The Lady's Magazine; or Entertaining Companion for the Fair Sex, Appropriated Solely to their Use and Amusement(1772). 107 LMA/4521/A/03/008/001/J, Minute of Meeting of the Mahamad, 1 Ab 5532/[31 July 1772]. 108 LMA/4521/A/03/08/001/N, Minutes of Meeting of the Mahamad, 25 Menahem 5532/[24 August

1772]. See also LMA/4521/A/01/03/001, 5 Av 5501/July 1741, fol. 142 Abraham Jacob Vaz

Martines and Masaltob daughter of Moseh Abady, another clandestine Kiddushin case in which the

couple and their witnesses were punished under Ascama 66 by exclusion from the congregation and

denial of burial rights.

169

their assistance in gathering the interrogatory evidence to arrest the couple in Paris

and as evidence in the communal disciplinary proceedings.

The procedural shenanigans of the Ximenes case led to a re-evaluation of Ascama 66

that had been in force since 1733.109 During the community’s project to revise its

Ascamot in the early 1780s, Ascama 66 was annulled and replaced by a new Ascama

30 in the printed Ascamot of 1784 that clarified and enhanced the adjudication

procedures for marriage cases.110 After referring in its preamble to the need to avoid

the ‘fatal consequences [that] have resulted from clandestine marriages’, it described

more succinctly, but nevertheless accurately, the varying circumstances in which

couples might contract a marriage under Jewish or English law. Ascama 30’s

schematic organisation first grouped together the Jewish stages of marriage,

kiddushin (giving or taking Kidusim’), shiddukhin (‘making any other contract of

marriage’) and beraha (the community’s terminology for nissu’in), before referring

to non-Jewish law (‘marrying with any other ceremonies, used or not used in our

Religion’). Anyone under the supervision of parents or guardians was forbidden

from participating in such actions and was subject to specified penalties for breach,

as were any witnesses and any other accomplices who accompanied, induced, or

advised the couple directly or indirectly. The Ximenes case had revealed the

Mahamad’s chaotic and reactive response to the fast-moving events in the case.

Ascama 30 thus provided an improved internal procedure for adjudicating marriage

cases. If a couple had only contracted to marry, and on the request of the parents, the

Mahamad and Adjuntos (deputies) were to ‘endeavour’ to prevent the marriage ‘by

all means that may be in their power.’ If the couple refused to part or were already

married, they were to be penalised by exclusion from membership of the synagogue,

from receiving public charity, and from burial rights. Penalties would be removed if

the parents eventually consented to the marriage.111

109 Laski, Laws and Charities, 97-99. 110 Congregation of Spanish and Portuguese Jews of London, Ascamot of 1784. 111 Ascama 30’s procedure improved how the Mahamad dealt with kiddushin cases: see

LMA/4521/A/01/03/004, Minutes of the Mahamad, 13 Elul 5551/12 September 1791 pp. 152-155;

LMA/4521/A/01/03/003, Minutes of the Mahamad, 28 Elul 5551/ 27 September 1791, David de

Moseh Torres and Rachel Brandon Seixas. I discuss the case more fully in Chapter VI, section 3.2.

170

The effect of Ascama 30 was to extend parental power and communal disciplinary

authority to any secret marriage, however celebrated, and irrespective of whether a

couple’s actions resulted in a valid and binding Jewish marriage. By referring to

every stage of the Jewish marriage rites, Ascama 30 clarified that the real mischief it

sought to prevent was loss of parental and communal control over the choice of

marriage partner, not the celebration of marriage otherwise than in accordance with

Jewish marriage rites. It gave express power to the Mahamad to take any necessary

step – presumably to include civil proceedings – to prevent secret marriages taking

place. Therein lay the seeds of the Lindo case, in which the guardianship

proceedings to separate the couple precipitated the parties into legal proceedings

before the ecclesiastical court. The Ximenes and Lindo cases demonstrated the

nature of the difficulty in securing universal adherence to a communal vision of

normative behaviour. Even congregants who were committed in many other respects

to communal engagement and belonging were tempted to put individual interests

above compliance with communal authority.

To gauge the effectiveness of the community’s policy on marriage formation, I

analysed all references to kiddushin in the community’s administrative records and

the Livros themselves.112 There were surprisingly few cases, 22 in total, including

the Lindo case.113 Only six of the 22 cases are from the Livros, all of which were

mainly concerned with financial issues rather than the actual validity of kiddushin.

The remaining 15 cases, some of which related to the validity of kiddushin, appear in

either the Mahamad’s minutes or their orders and resolutions books. This

documentation history reveals that the Mahamad made a distinction between

marriage disputes that essentially concerned financial matters (documented in the

Livros) and religious matters that went to the core of personal status and identity

formation (documented in administrative books).114 The analysis also clarifies that

most congregants adhered to communal expectations for the celebration of marriage

in public with parental consent. This analysis therefore challenges whether the

ecclesiastical cases brought by Sephardim can be treated as an indication of

112 For my archival sources, see Chapter I, at the end of section 4. 113 This excludes the five secret marriage cases and one abduction case between 1701 and 1724

discussed in Kaplan, "Abduction of a Girl". 114 On the relationship between the Mahamad and the Bet Din regarding kiddushin matters, see

Chapter VI.

171

normative behaviour, even among the most acculturated, wealthy strata of Sephardi

society.

However, the apparent success of Sephardi institutions in retaining jurisdiction over

these types of marriage disputes and preserving the relevance of the Jewish judicial

space should be treated with caution. Firstly, the Jewish judicial space did not always

provide congregants with a remedy for complex reasons. Choice of marriage partner

sometimes conflicted with the maintenance of the Nation’s identity through

discouraging marriage between the Sephardim and the Tudescos (German or

Ashkenazi Jews), who already in 1720 far outnumbered the Sephardim.115 The

Mahamad was reluctant to intervene when someone complained about a kiddushin

given to a Tudesca (a German or Ashkenazi woman).116 For example, when the

mother of a young man who had given kiddushin to a Tudesca made a complaint

against the Sephardi witness to the kiddushin, the Mahamad stated that they ‘could

not take Notice of it because the girl is not of our Kehila’, since Ascama 66 then in

force applied only to young men and women ‘of our Nation’.117 As a result, neither

the witness nor the groom was expressly sanctioned under Ascama 66. Economic

penalties were imposed on the poor who married Tudescas, and these women found

that the Mahamad were unwilling to divert their husband’s sedaca to cover their

maintenance. Rather than dealing with these cases in the Jewish judicial space, the

Mahamad chose instead to give these women leave to sue their husbands for

maintenance in the English courts.118

115 Despite periodic influxes of immigrants, the Sephardi population between 1750 and 1850

numbered around 2000, one of the causes of which was ‘mixed’ marriages, see Endelman, Jews of

Georgian England, 171-173; Broadening Jewish History: Towards a Social History of Ordinary Jews (Oxford: Littman Library of Jewish Civilization, 2011), 240-244. For detailed population statistics,

see Lipman, "Sephardi and Other Jewish Immigrants in England in the Eighteenth Century". By the

late 1790s the opposition to a marriage with Tudescas had changed even among the wealthy elite: see

Sonia L. Lipman, "Judith Montefiore — First Lady of Anglo-Jewry", Transactions (Jewish Historical

Society of England) 21 (1962), 287-303: 290. 116 Barnett, Bevis Marks Records (Vol. 2), [vi]-[vii]; G. H. Whitehill, ed. Bevis Marks Records Part

III: Abstracts of the Ketubot [...] for the Period 1837-1901 (London: Spanish and Portuguese Jews'

Congregation; Jewish Historical Society of England, 1973), 5-6. 117 LMA/4521/A/01/21/003, Hanah Mendes v Mordecai Mendes 28 Sebat 5548/8 January 1788. 118 For an example, see LMA/4521/A/01/21/002, Judy Crasto Orobio v her husband, 27 Adar

5533/[22 March 1773]. The husband’s entitlement to sedaca was already reduced under Ascama

36(4) of Ascamot of 1784 to ten shillings twice a year, except in dire need. See Laski, Laws and

Charities, 113.

172

Secondly, the lack of a remedy arose from the halakhic rules themselves. As we saw

in the Lindo case, Jewish men did not have halakhic responsibility for the

maintenance of a marital household until after nissu’in. Women who had only

received kiddushin, or who were living with a man without kiddushin, sought

maintenance from their ‘husband’ with varying results. Rachel Moravia complained

to the Mahamad that her ‘husband’ Mordecai refused to maintain her and their two-

year-old child until a promised dowry was forthcoming. The Ḥakham ruled that

Mordecai was not liable for maintenance, because the couple were living together

with kiddushin only. After negotiations, it was agreed the couple should marry under

the ḥuppah, and that Rachel’s father would pay a previously agreed £30 dowry.119

Without kiddushin, women were in a precarious bargaining position when they were

pregnant, as Abigail Noah found when her father complained to the Mahamad that

she had been seduced.120 In the formal settlement agreement, she accepted the sum

of £10 as ‘recompensation…for her son Samuel of Daniel Suhami’, on condition that

she relinquish ‘any future claim or demand’ for child maintenance.121 Other women

failed to find any remedy in the Jewish judicial space. Phoebe Cohen’s application

for maintenance from Moses Julian, with whom she had cohabited for five years

without kiddushin, failed and she was given leave to take legal proceedings.122 In

1837, Hanah Cohen asked the Mahamad to persuade Ichesquel Levy to marry her

and support her and their child. At the third hearing, the Mahamad ‘made a

recommendation’ without further detail, and we hear nothing more until 1839 when

Ichesquel appeared as plaintiff alleging that Hanah ‘had kidusin’, that he had one

child by her, but that he denied paternity of a second child. At this point, the

Mahamad referred the case to the Ḥakham, whose opinion is unrecorded, though we

do know that permission was granted in March 1840 for the couple to be divorced.123

These cases show a growing trend among the poor simply to ignore Jewish marriage

119 LMA/4521/A/01/21/002, Rachel Moravia v Mordy Moravia, 28 Sivan 5541/21 June 1781. 120 The number of couples who cohabited before a synagogue marriage reached a peak of 18.1% in

the period 1861-70. See Whitehill, Bevis Marks Records Part III, 10, Table I. 121 LMA/4521/A/01/21/005, Benjamin Noah v Daniel Suhami, 28 Tamuz 5585/14 July 1826;

LMA/4521/A/01/03/009, Minutes of the Mahamad, 25 February 1827, f 115-116. For another

seduction case, see LMA/4521/A/01/21/005, Jacob Netto v Judah Hassan, 29 Nisan 5587/26 April

1827. 122 LMA/4521/A/01/21/005, Phoebe Cohen v Moses Julian, 27 Tevet 5585/17 January 1825; 26 Adar

5585/17 March 1825. 123 LMA/4521/A/01/03/010, Minutes of the Mahamad, 1 Iyar 5599/15 April 1839, [n.f.] and 28/9

Adar Rishon 5600/3 March 1840, [n.f.]

173

rites and to cohabit. In 1839, the Mahamad expressed their concern about pre-marital

sexual relations when they convened a meeting with the Bet Din ‘to inquire whether

with a view of checking if possible the prevalence of such conduct amongst the poor,

they would be justified in refusing permission to such parties to marry.’ The Bet

Din’s opinion ‘according to Din Torah’ was that ‘no impediment ought to be made

to their marriage’ and permission was granted.124

Finally, congregants’ choice to use the Mahamad’s dispute resolution services needs

to be contextualised against the practical reality that most congregants did not have

the economic means to pursue remedies in either the ecclesiastical or civil courts.

This point emerges from breach of promise cases mentioned in the Livros. As

previously mentioned in relation to the Villa Real case, the 1753 Act abolished the

espousal action which resulted in an increase in contractual claims in the common

law courts for damages for breach of promise.125 The community’s customary

practices to make formal shiddukhin (engagements) and written marriage settlements

that documented agreed financial terms, ought to have provided an aggrieved litigant

with the evidence they needed to mount such actions.126 Large sums in damages for

reputational harm could be awarded that potentially mitigated against the expense of

these actions.127 This was in sharp contrast to the remedies halakhah afforded where

only actual loss, such as the expenses associated with the broken engagement, was

generally recoverable unless the marriage settlement deed had specifically provided

for a penalty if the marriage did not happen.128 Although it might have been

financially advantageous to congregants to instigate contractual breach of promise

cases in civil courts, there is little evidence that they did so.

In the late eighteenth century, the Mahamad successfully resolved two potential

breach of promise actions. When Ribca de Abraham Velasco complained to the

124 LMA/4521/A/01/03/010, Minutes of the Mahamad, 29/30 Hesvan 5600/6 November 1839, [n.f.]. 125 Smith, "Women and Marriage". 126 Shiddukhin did not change a couple’s personal status; they remained single and neither bride nor

groom could be coerced to perform kiddushin or nissu’in which had to be entered into willingly and

freely. However, the importance of the shiddukhin is reflected in the admonition of the rabbis that any couple who proceeded to kiddushin, without shiddukhin, acted licentiously. See Schereschewsky,

"Betrothal", 539. 127 Frost, Promises Broken. According to Frost, ‘[t]he majority of plaintiffs and defendants in breach-

of-promise cases were of the lower middle and upper working classes.’ (p. 9). 128 If the tenaim (marriage settlement contract) include a penalty for breach, that may also be

recovered. Any penalty stipulated in the marriage settlement itself was also recoverable. See

Schereschewsky, "Betrothal", 540.

174

Mahamad that David de Joseph de Moseh Nunes Martines had not complied with his

promise to marry her within three months of signing a marriage contract, the couple

agreed a settlement which included annulment of the contract and reimbursement of

expenses Ribca had incurred.129 Similarly, Selomah Mendoza and Abigail Noah de

Costa consensually agreed to end their engagement when Selomah summoned

Abigail to the Mahamad to seek clarification that their marriage settlement was a

nullity. At the hearing, Abigail agreed that she would have a notary draw up a

general discharge to cancel their marriage settlement.130

By the nineteenth century, congregants were at least contemplating legal action for

breach of promise. In April 1821, Johanan de Daniel Dias’s unnamed sister signed a

marriage settlement with Moses Peres which stated that the bride would be given a

dowry from communal funds and that the couple would marry within three months.

In May 1821, Dias accused Peres of breach of promise of marriage and asked the

Mahamad for leave ‘to take legal steps against Peres in the hope he will make

suitable reparation for the injury done to the Lady.’ According to the Livros, ‘Peres

Jr state[d] that he has no particular reason for refusing to comply with his

engagement but that he does not think that by marrying he would become happier.’

Dias readily accepted the Tribunal’s suggestion that arbitration was the ‘best means’

to resolve the dispute. As Peres was reluctant to agree, the Tribunal allowed him

further time to consider the suggestion but when at a second hearing he still refused

to arbitrate, the Tribunal gave Dias leave ‘to proceed against [Peres] at Law unless

he agreed to refer the subject to arbitrators as before.’131 There is no evidence that

Dias’s sister commenced litigation against Peres.

The Dias/Peres case illustrates the Tribunal’s obvious reluctance for a broken

engagement to be litigated in civil courts. However, Peres’s tactic in resisting

arbitration exposed their powerlessness against a recalcitrant defendant determined

129 LMA/4521/A/01/21/003, Ribca de Abraham Velasco v David de Joseph de Moseh Nunes

Martines, 9 Iyar 5550/22 April 1790. The Mahamad retained the annulled contract to avoid the marital status of the parties becoming an issue in the future. 130 LMA/4521/A/01/21/002, Selomoh Mendoza v Abigail Noah da Costa, 12 Kislev 5535/[15

November 1774]. On the role and qualifications of notaries, and Jews practising this profession, see

Samuel, "Anglo-Jewish Notaries". Notaries were qualified to draft a variety of legal documents

including those required for ecclesiastical court litigation. 131 LMA/4521/A/01/21/005, Johanan de Daniel Dias v Moses Peres, 27 Sivan 5581/27 June 1821;

Johanan de Daniel Dias v Moses Peres, 25 Tamuz 5581/25 July 1821.

175

to ignore their advice. By eventually granting Dias permission to sue, the Tribunal

signalled to Peres that his non-cooperation would not be permitted to prejudice a

plaintiff’s right to obtain justice. At least in the common law courts, the only remedy

available was financial, and therefore posed no challenge to religious conceptions

about the process of Jewish marriage. Whether litigation was at all a realistic option

for the Dias family is highly debateable. As Ginger Frost has shown, it was the

‘lower middle and upper working classes’ who were the most common plaintiffs and

defendants in breach of promise cases.132

Private, voluntary arbitrations of marriage disputes were exceptional, but one such

case is extensively documented in the nineteenth-century Mahamad minutes. In

1813, Lord Ellenborough made a consent order that a debt action brought by Charles

Hodgson against Moses Lara should be referred to a barrister for arbitration. Until

1806 Lara had been living with Isabella Solomons, who had taken delivery of goods

after they had parted. The question arose whether Lara and Solomons were married

according to the ‘rites and ceremonies’ of the Jews, which would have entitled

Hodgson as creditor to claim payment from Lara under the rule of feme covert.

During the proceedings, the Bet Din provided a written opinion that there was no

evidence of a marriage ceremony having been solemnized between the couple, nor a

valid ketubah. However, as Lara and Solomons had cohabited as man and wife for

many years, the fact of cohabitation constituted a ḥasakah in Jewish law, that is, a

presumption that the couple were married. Consequently, Solomons could not marry

another man until she received a get from Lara. On the feme covert issue, the Bet

Din ruled that, prior to the couple parting, Lara had had an obligation to support

Solomons, but this obligation ended when the couple parted. The arbitrator ruled

that Solomons was a single woman at the time of delivery of the goods, and so the

creditor could not pursue Lara for payment. That ruling only makes sense if the

arbitrator proceeded on the basis that no marriage according to the usages of Jews

had taken place – the test of a valid Jewish marriage in the Lindo case – and that the

132 Frost, Promises Broken, 9. Her study is based on 875 cases for the period 1750-1970 (when the

action was abolished), though most fell during the period 1850-1900 (p. 8). cf. Saskia Lettmaier,

Broken Engagements: The Action for Breach of Promise of Marriage and the Feminine Ideal, 1800-

1940 (Oxford: Oxford University Press, 2010), 10. Lettmaier’s approach is critiqued in Rebecca

Probert, "Broken Engagements: The Action for Breach of Promise of Marriage and the Feminine

Ideal, 1800-1940, by Saskia Lettmaier Book Review", J. Legal Hist. 33 (2012), [i]-130.

176

halakhic presumption of marriage when couples lived together as man and wife

could not rebut English law’s presumption of the opposite position.133

2.4 The challenge of civil marriages

The most important nineteenth century challenge to communal authority over

marriage creation came from parliamentary legislation rather than court litigation.

The Marriage Act of 1836 introduced civil marriage before a registrar to enable

Nonconformists and Roman Catholics to marry other than in an Anglican Church.134

But Jews who were prepared to defy halakhah governing Jewish marriage, as well as

communal behavioural norms, also had the opportunity to marry one another in a

civil ceremony and to have their union recognised as valid and binding according to

English law.135 In the same year, the Births and Deaths Registration Act created a

registration scheme for Jewish marriages whereby the president of the Board of

Deputies of British Jews certified secretaries of named synagogues as registrars of

marriage.136 The Annual Meeting of the congregation on 23 October 1836 was told

that the legislation was ‘highly important to our nation’ and that the effect of the

Marriage Act was to ‘sanction[] and secure to us the right of contracting and

celebrating marriage according to the usages and ceremonies of our religion…’. The

appointment of registrars within congregations ‘prevent[ed] the presence and

interference of the Christian Registrar in Jewish marriages’ and the only

disadvantage was that Jews now had to apply to the ‘constituted authorities for a

marriage licence in the same manner as other subjects of this Country.’137 After

1836, Jewish marriages celebrated according to the registration scheme were

automatically recognised as valid civil marriages under English law.

133 LMA/4521/A/01/003/007, Minutes of the Mahamad, 6 Hesvan 5575/20 October 1814, p. 145.

Each party had to pay their own costs of the arbitration. 134 6 & 7 Will. IV, c. 85. See Stone, Road to Divorce, 133. 135 It is unclear whether the rabbinical authorities and the Board of Deputies of British Jews

appreciated this point. Finestein writes that Chief Rabbi Hirschell, David Meldola [Av Bet Din of the Sephardi community] and the Board of Deputies ‘were content with the final form’ of the legislation:

Finestein, Jewish Society 63. 136 6 &7 Will. IV, c. 86. On these statutes and other relevant nineteenth century legislation on

marriage, see Henriques, "Jewish Marriages". For analysis of Bevis Marks’ nineteenth century civil

register and Ketubot books, see Whitehill, Bevis Marks Records Part III, 1-16. 137 LMA/4521/A/01/04/006, Minutes of the Elders, 12 Hesvan 5597/[23 October 1836] Annual

Meeting, p. 391.

177

The 1850 Ascamot recognised this altered reality. Ascama 20(3) still insisted that

‘all parties’ who were subject to the guardianship of parents or guardians were

prohibited from contracting marriage or giving or taking kiddushin without consent.

But it also added that no Yahid or congregant was permitted to marry ‘except

through the recognised officer of the congregation, and with the proper authority’ of

the Mahamad.138 It is beyond the scope of this thesis to analyse the effectiveness of

this provision in exercising control over civil marriages between Sephardim.139

However, it is possible to discern the genesis of Ascama 20’s reference to the

registration scheme in two cases mentioned in the Mahamad minutes. Firstly, in

1841, the Mahamad refused permission for a couple to have a civil marriage by

special licence. The couple planned to sail to Gibraltar before the imminent Jewish

High Holidays but had left too little time for the synagogue authorities to provide the

requisite 21 days’ notice of a forthcoming religious marriage to the superintendent

registrar of marriages. As a special licence required only seven days’ notice, they

could follow the civil ceremony with a synagogue marriage before their departure.

The Mahamad refused permission for a special licence, stating that ‘it would be

highly improper & injudicious to countenance in any way, the slightest deviation

from the established practice.’ Thus, the Mahamad firmly quashed any

circumvention of the registration scheme, even for the laudable motive of supporting

a couple’s desire to be religiously married in synagogue.140 In the second case, in

1849, a couple had a civil marriage because the husband anticipated that his father

would object to his marriage to a German Jewess. The Mahamad convened a special

meeting at which the husband informed them that he had not intended to offend

against the then current Ascama 25 that forbade clandestine marriage. The

Mahamad directed the secretary to raise what had occurred with the superintendent

registrar of marriages and eventually the couple were given permission to marry in

138 Congregation of Spanish and Portuguese Jews of London, Ascamot of 1850. 139 Between 1837- 1851, there were no civil marriages before a civil registrar that preceded a religious

marriage. Between 1851-1901, there were 38 out of a total of 480 marriages celebrated in the

synagogue during that period. See Whitehill, Bevis Marks Records Part III, 10, Table I. 140 Ibid., 32, no. 59. Moses Levy Bensusan and Esther Levy Bensusan were married at Bevis Marks

on 17 August 1842. See also LMA/4521/A/01/03/010, Minutes of the Mahamad, 18 Menahem

5602/25 July 1842, [n.f.]. Until the Marriage and Registration Act 1856, synagogues were not

empowered to issue special licences: see Henriques, "Jewish Marriages", 424.

178

the synagogue.141 Between 1837 and 1901, only 38 congregants chose to be married

civilly before a register prior to their synagogue wedding.142 These low numbers

mirrored the slow growth of civil marriage among the general population.143

Civil marriage transformed existing Jewish ways of defying Sephardi communal and

parental authority over marriage formation, such as a secret declaration of kiddushin.

The opportunity to marry in a civil ceremony gave couples the certainty that their

marriage was valid in English law.144 Civil marriage enabled couples to avoid the

messy result of the Lindo case of being unmarried in English law, but still bound

together according to halakhah. The authority of the Bet Din to decide the validity

of marriages, left untouched by the Lindo case, could be circumvented by marrying

entirely outside the rabbinical court’s jurisdiction. Ironically, this revived the

position I argued pertained in the Villa Real litigation, in which the Bet Din’s

authority over the purported marriage of a Jewish couple was irrelevant because the

only applicable law on the facts of the case was the ecclesiastical rules of contracts

per verba de præsenti, and not the Jewish rites of marriage.

From a legal pluralism perspective, the 1753 Act’s exemption of Jewish marriages

was a tacit acceptance that Jews had an unfettered right to celebrate their marriages

in accordance with their own law, administered through communal authority. The

Lindo judgments confirmed that the validity of Jewish marriages had to be tested

according to Jewish law, albeit that the judges filtered that law through the prism of

Christian notions of marriage and so did not give full voice to halakhah’s nuances.

The Lindo ruling also left untouched the community’s right to govern its own

internal procedures for the celebration of Jewish marriages. This situation changed

after the 1836 legislation.145 The 1836 Marriage Act expressly recognised the

141 For the marriage of Isaac Lealter and Laura Isaacs, 29 March 1849, see Whitehill, Bevis Marks

Records Part III, 48, no. 150. Mentioned in Hyamson, Sephardim, 302. 142 Whitehill, Bevis Marks Records Part III, 10. 143 Stone, Road to Divorce, 133. He states that first marriages before civil registrars was 3% in 1844

and 18% in 1904. 144 Lack of parental consent was no longer a ground to annul a marriage celebrated pursuant to a

special licence: see Marriage Act 1823, s. 21, discussed in Probert, Marriage Law and Practice, 311.

For an example, see LMA/4521/A/01/03/012, Minutes of the Mahamad, RH Elul 5619/30 August 1859, p. 67, Eliezer Anael Key and Rosa daughter of Abraham de Joseph Rodrigues who married

before a civil registrar without parental permission. The Mahamad gave permission to marry in

synagogue but only before Rubi Judah Mudaha. The civil marriage certificate was to be produced

and the Secretary was ordered not to register the marriage to avoid duplication. See also Whitehill,

Bevis Marks Records Part III, 8. 145 Lloyd P. Gartner, "Emancipation, Social Change and Communal Reconstruction in Anglo-Jewry

1789-1881", Proceedings of the American Academy for Jewish Research 54 (1987), 73-116: 74.

179

solemnization of marriages ‘according to the usages’ of the Jews and ‘declared and

confirmed [them] good in law, provided that’ both parties were Jewish, and that due

notice of the marriage was given to the Superintendent Registrar and a registrar’s

certificate was properly issued.146 The recognition of a valid religious Jewish

marriage was dependent on compliance with the ‘civil preliminaries’ that created a

simultaneous civil marriage.147 Thus, the advent of civil marriage and the state-

sanctioned marriage registration scheme for Jewish synagogues weakened

eighteenth-century legal pluralism. As Lois Dubin writes, ‘[i]n the domain of

marriage law and practice, emancipation meant the partial incorporation of Jewish

law in a civil framework, but it did not necessarily mean the full replacement of

religious by civil law; rather, it entailed a complex process of one legal system

harnessing another. The two were yoked together, with far-reaching consequences

for both private and public Jewish life.’148

146 s. 2, Marriage Act 1836. On whether Jewish marriage was henceforth valid only if celebrated

according to the Act rather than by virtue of Jewish law itself, as recognised in the Lindo case, see G.

W. Bartholomew, "Application of Jewish Law in England", U. Malaya L. Rev. 3 (1961), 83-111: 92-

92. The Board of Deputies also overlooked how section 2 of Lord Lyndhurst’s Marriage Act of 1835,

which prohibited marriages ‘within the prohibited degrees of consanguinity’ (and hence uncle/niece marriages forbidden by canon law), conflicted with Jewish law that permitted such marriages. Sir

Moses Montefiore supported Rabbi David Meldola’s (Av Bet Din of the London community) and

Chief Rabbi Hirschell’s lobbying of the Board for a special Act preserving religious law, but their

efforts were defeated, see Abigail Green, Moses Montefiore: Jewish Liberator, Imperial Hero

(Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2010), 107; Israel

Finestein, "An Aspect of the Jews and English Marriage Law During the Emancipation", The Jewish

Journal of Sociology 7 (1965), 3. Reprinted in Jewish Society 54-77. On the Mahamad’s decision not

to sanction uncle/niece marriages, see LMA/4521/A/01/03/011, Minutes of the Mahamad, 29 Sivan

5604/16 June 1844, p. 11. 147 Rebecca Probert, "When Are We Married? Void, Non-Existent and Presumed Marriages", Legal

Studies 22 (2002), 398-419: 407. In the late nineteenth century, so called stille chuppah or stille

chosna, Jewish marriages performed outside the registration regime, were a problem among recent Ashkenazi immigrants. They were ‘irregular’, binding in Jewish law only. See Henriques, "Jewish

Marriages", 443. 148 Lois Dubin, "Jewish Women, Marriage Law, and Emancipation: A Civil Divorce in Late-

Eighteenth-Century Trieste", Jewish Social Studies 13 (2007), 65-92: 83. cf. the problems for the

Muslim community of civil and religious marriage law not being yoked together in Gillian Douglas,

"Who Regulates Marriage? The Case of Religious Marriage and Divorce", in Religion and Legal

Pluralism, ed. Russell Sandberg (London: Routledge, 2017), 53-66.

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3 Marriage breakdown

3.1 Divorce in ecclesiastical law: an overview

‘It must never be forgotten that England in the early modern period was neither a

separating nor a divorcing society: death was virtually the sole agent for dissolving

marriage.’149 Divorce with the right to remarry was available only to ‘childless males

of rank and wealth’ by a parliamentary process of moving a bill of divorcement.150

While it remained a process only initiated by a male, many wives colluded with their

husbands to have the opportunity to remarry.151 In the absence of a parliamentary

bill of divorce, ecclesiastical law prohibited married couples from living apart

without a formal ecclesiastical decree consenting to them leading separate lives; the

decree rested on the implicit assumption that the couple might in the future be

reconciled and cohabit. A double standard meant that wives who sued their

husbands for separation from bed and board (a mensa et thoro) were entitled to

alimony if they proved their husband’s adultery, cruelty, or both. Conversely, where

a husband sued a wife for adultery, no alimony was recoverable.152 The action for

‘restoration of conjugal rights’ gave deserted wives the opportunity to obtain a court

order requiring their husband to return to the marital home and to support them. If

the husband refused to comply, then an application for separation and alimony would

follow. Destitute wives were able to apply to the overseers of the poor for poor

relief and their husbands were liable to prosecution for criminal neglect.153

Court litigation was not inevitable when couples experienced marital problems.

Joanne Bailey points to a ‘network of solutions’ for ‘marital difficulties’ which

included informal methods to resolve conflicts between husbands and wives, through

friends, neighbours, priests, and others, as well as more formal court-based

solutions.154 According to Bailey, eighteenth-century couples did not regard their

149 Stone, Road to Divorce, 2. 150 Ibid., 320. The right to a parliamentary divorce was extended to any person alleging and proving

adultery but numbers remained small because of cost. See Leonard Shelford, A Practical Treatise of the Law of Marriage and Divorce; Containing Also the Mode of Proceeding on Divorces in the

Ecclesiastical Courts and in Parliament [...] Vol. 33, ([S.L.]: [s.n.], 1841). 201. 151 Stone, Road to Divorce, 301-346. 152 Ibid., 192-193. 153 Ibid., 194-195. 154 Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660-1800

(Cambridge: Cambridge University Press, 2003), 32.

181

marital difficulties as ‘separate phenomena’. Rather they considered the conflicts

they experienced to be ‘stages of the same process’ that occurred during their

marriage and that ‘resolution’ was a ‘possible outcome of most [conflicts]’.155

The Livros reveal that the London community’s approach to the resolution of marital

difficulties fitted into the staged process Bailey describes. One of the Tribunal’s

most frequently documented expressions in relation to marital conflict was that the

spouses return home to ‘live in peace’. At first sight, this appears to be an abdication

of responsibility, but the Tribunal’s approach aligned with English legal practice to

seek ways in which to reconcile spouses. It also reflected the Tribunal’s willingness

to co-opt the enforcement opportunities of the English courts by granting permission

to sue in appropriate circumstances, so that a remedy could be provided if

reconciliation ultimately failed. This pattern mirrors that in Chapter IV in relation to

debt collection, but with the crucial difference that marriage issues according to the

halakhic framework fell within the exclusive jurisdiction of Jewish judges.

However, unlike the validity of marriage cases, most disputes between spouses did

not challenge issues of personal status under Jewish law. Instead, they concerned the

economic difficulties spouses faced on separation. The Mahamad drew a sharp

distinction between co-opting the English courts in finding a solution that facilitated

greater economic stability for separating spouses, and changes in personal status.

The latter – most drastically altered by a Jewish divorce – was a matter for

adjudication by the Mahamad and Bet Din working together. The foundational 1664

Ascamot provided that no get was to be given by any person without the consent of

the Mahamad, and that anyone participating in a get ritual would be

excommunicated.156

Actively choosing to seek an ecclesiastical court remedy was a rare and exceptional

event in the life of the Sephardi community. There is just one reported case in which

a wife sought a judicial separation from her husband, the D’Aguilar case of 1794,

and an unreported case Andreas v Andreas (1737) where a wife sued her husband for

restoration of conjugal rights.157 I discuss these cases in detail below but want to

155 Ibid., 30. 156 Ascama 36, Barnett, El Libro De Los Acuerdos, 12. 157 D’Aguilar (Lady) v D’Aguilar (Baron) (1794) 1 Hagg. Ecc. 772; 162 Eng. Rep. 748; Andreas v

Andreas (unreported) but cited in Lindo (1796), 1 Hag. Con. (App) 7;161 Eng. Rep. 636 at 637 and in

R v Millis (1843-1844) 8 Eng. Rep. 884 at 941. Lord William Scott was obviously unaware of the

Andreas case when he heard the D’Aguilar proceedings in 1794 because he remarked that the ‘court

182

highlight here the broader legal principles relevant to these Sephardi Jews litigating

in ecclesiastical courts. In the D’Aguilar case, Sir William Scott framed the right of

Jews to a remedy for marital breakdown in the context of the laws of devolution of

personal property to legitimate heirs administered by the ecclesiastical courts. Jews

had the ‘same right to transmit’ personal property: ‘It would be hard, then, if they

had not the same mode of securing the legitimacy of their children, and consequently

if the same rights of divorce did not belong to them.’158 Jews thus had a right of

access to the ecclesiastical court to obtain ‘divorce’ remedies, but there was no

mention in the D’Aguilar case of Jews seeking divorce under Jewish law, even

though a Jewish divorce would have irrevocably severed the marital ties. As a

matter of practical reality, Sephardi Jews sometimes did divorce, and occasionally

the fact of divorce came to the notice of the English courts. Yet, until divorce reform

in the 1850s, English law did not interfere with the Jews practising their own law of

divorce. To use Griffiths’s language, strong legal pluralism accepted, or at least did

not actively suppress, the practice of Jewish divorce wholly outside state control for

most of the period in which the Tribunal operated.

The fact that Jewish divorce was being practised in England came to English courts’

notice indirectly through litigation in the civil rather than the ecclesiastical courts. In

Ganer v Lady Lanesborough (1791), a creditor sued Lady Lanesborough, who

defended herself on the grounds that she was a feme covert, having married John

King, a former member of the Sephardi community. King had previously been

married to a Jewish woman whom he had divorced according to Jewish law in

Livorno. Ganer argued that, since King’s first wife was still living, Lady

Lanesborough’s marriage was bigamous and therefore invalid, an argument that

directly challenged whether Jewish divorce could alter Jewish personal status. After

King’s first wife gave evidence proving the Jewish divorce, the court accepted that

he and Lady Lanesborough were validly married in England, defeating the plaintiff’s

did not remember any proceedings between [Jewish] parties in a case of this nature’. (749) The case

was not cited to him at first instance in the Lindo case, but it was brought to the attention of the appeal

judge, Sir William Wynne. Since the validity of the marriage in Andreas was not at issue the

‘ecclesiastical court was the only one they could apply to’. 158 D’Aguilar, 162 Eng. Rep. 748 at 749.

183

claim. The case established that a Jewish divorce of parties domiciled abroad would

be recognised as valid by the English courts.159

In 1840, the question of recognition of a Jewish divorce given in England came

before the Court of Common Pleas. The case of Moss v Smith (1840) concerned the

law of bailment, where the defendant argued that Eliza Moss was a married woman

and therefore did not have the capacity to sue him. Eliza produced evidence from

Chief Rabbi Hirschell that she had been married according to Jewish rites and the

marriage registered in synagogue records. She gave evidence that she had been

divorced according to Jewish law, but she was unable to produce the get itself. In the

absence of the physical document proving the fact of the divorce, Erskine J ruled that

the divorce could not be established and her claim to be a feme sole therefore

failed.160 The case can be read narrowly as turning on an issue of proof only or as

outright rejection of recognition of Jewish divorce as altering personal status in civil

law.161

The issue of recognition of Jewish divorces under civil law crystallised with the

1857 Matrimonial Causes Act that transferred the ecclesiastical court’s jurisdiction

over marriage and divorce to the newly established civil Divorce Court. After

lobbying by the rabbinical authorities and the Board of Deputies, the Lord

Chancellor proposed an amendment at the bill stage to exempt Jewish divorce from

the ambit of the Divorce Court. According to Finestein, the amendment ‘which was

not opposed in Parliament, was suddenly dropped by the government upon the

personal and private intervention of [David] Salomons and Lionel de Rothschild’.162

Salomons was concerned that the amendment would taint the Jews with the

accusation that they were aliens and thus would adversely affect the general

campaign for Jewish civil emancipation.163 Without the amendment, the effect of the

159 Ganer v Lady Lanesborough (1791) Peake 25; 170 Eng. Rep. 66. Even in the nineteenth century,

the point was not widely known. See LMA/4521/A/01/03/010, Minutes of the Mahamad, 8 Tisry

5602/23 September 1841, where a groom who obtained a divorce abroad sought a legal opinion on the

issue whether he could remarry in London. The opinion advised that ‘such marriage would not

militate against the laws of this Country’. On the recognition of ‘non-judicial’ religious divorces

generally and discussion of the Lanesborough case, see Susan Maidment, "The Legal Effect of Religious Divorces", Mod. L. Rev. 37 (1974), 611-626. On the colourful life of the moneylender John

King (born Jacob Rey), see Endelman, Broadening Social History, 171-200. 160 Eliza Moss v Seth Smith (1840) 133 Eng. Rep. 317; 1 Man. & G. 229. 161 For the narrow reading, see Bartholomew, "Application of Jewish Law", 103. cf. Henriques,

"Jewish Marriages", 449, n. 1. 162 Finestein, Jewish Society 35. 163 Ibid.

184

1857 Act was that a ‘uniform law governing the dissolution’ of all ‘legally

recognised marriages’ came into force.164 The 1857 Act now expressly provided that

Jewish religious divorces could not alter personal status in English law. However,

the practice of granting gittin did not recognise this fact until 1866, when the

Registrar-General for marriages issued a ruling that Jewish divorces were not valid

in civil law. From then onwards, batei din would not issue a get until the civil

divorce court had given a decree absolute.165 The 1857 Act did not alter the existing

substantive ecclesiastical law on the breakdown of marriage; instead, it codified that

law in legislation and transformed it into civil process.166 Through the civil courts,

the state controlled when spouses could dissolve their marriage and the

consequences for them and their children.167

3.2 Litigating in the ecclesiastical court

As previously mentioned, a handful of ecclesiastical court cases indicate that

Sephardim occasionally turned to those courts for a remedy for marital breakdown,

rather than pursuing a remedy in the Jewish judicial space. Andreas v Andreas

(1737) was an action for restoration of conjugal rights where the wife alleged in her

supporting affidavit that her husband ‘”refuse[d] to admit [her] into his…dwelling

houses to cohabit with [him] at Bed & Board,”’ adding that her clothes and jewellery

remained in the marital home.168 Whether the couple were affiliated to the Sephardi

community is unknown; there is no record of their marriage and they are not

mentioned in the Livros. While it is conceivable the couple had some connection to

164 Douglas, "Who Regulates Marriage?", 54. 165 The change in practice came to light in Chief Rabbi Hermann Adler’s evidence to the 1910 Gorell

Commission on Divorce and Matrimonial Causes, see Royal Commission on Divorce and

Matrimonial Causes, "Minutes of Evidence Taken before the Royal Commission on Divorce and

Matrimonial Causes", (Cd. 6481, 1912), 407. Mentioned in Henriques, "Jewish Marriages", 448;

Bartholomew, "Application of Jewish Law", 103-104; Maidment, "Religious Divorces", 620; David

Feldman, Englishmen and Jews: Social Relations and Political Culture 1840-1914 (New Haven: Yale

University Press, 1994), 294-297. The policy change is reflected in LMA/4521/A/01/03/012, Minutes

of the Mahamad, 32 Hesvan 5631/27 October 1870, p. 346 which states: ‘Upon an application from

Joseph Lealter and his wife, whose marriage had been dissolved by a Decree of the Divorce Court,

permission was granted to the Revd Haham to pass the required Guet between the parties.’ 166 Colin Gibson, Dissolving Wedlock (London: Routledge, 1993), 59. 167 Douglas et al., "Social Cohesion", 14. On the retreat of religious law to the private space, and its

demotion to the status of norms rather than autonomous, independent law, see Tamanaha,

"Understanding Legal Pluralism", 380-381. 168 Cited in Lindo (1796) 161 Eng. Rep. 636 at 637 and in R v Millis (1843-1844) 8 Eng. Reports 884

at 941; LMA: DL/C/0549/028, Affidavit of Joyce Andrees filed in Diocese of London, Consistory

Court, dated 9 December 1737. Although the spelling differs, this must be the same case.

185

the community, it seems highly unlikely that there was any attempt to resolve their

differences in the Jewish judicial space.

Likewise, there is no documentary evidence that either Lady D’Aguilar or Baron

D’Aguilar sought to resolve their marital difficulties within the community. The

Baron had been a stalwart of the community, serving as a Parnas and Gabay in the

mid-eighteenth century but, by the time of the judicial separation hearing in 1794, he

had long disassociated himself from the community.169 The facts of the case suggest

that extricating a get from the Baron would have been extremely difficult, given his

cruel and abusive behaviour towards Lady D’Aguilar over the twenty years in which

they had lived apart. His adulterous liaison with Susannah Lewen, the woman with

whom he was currently living and with whom he had a child, did not assist Lady

D’Aguilar because Jewish law only recognised as adulterous a sexual relationship

between a married woman and another man.170 From Lady D’Aguilar’s perspective,

an application for judicial separation was her only course of action, since only males

had the right to apply for a parliamentary bill of divorce. Even if Lady D’Aguilar

had managed to extract a get from the Baron, as the Moss v Smith case would

demonstrate decades later, legal uncertainty about the status of a Jewish divorce in

civil law meant that she could not be assured that she could live her life free from

legal association with the Baron. Leaving aside the civil law issues, the great

advantage of a get – the right to remarry in Jewish law – was not at issue in the case.

Lady D’Aguilar was seventy years old and had not evinced any desire to remarry

during her previous twenty-year estrangement from her husband.171 On the basis of

the compelling evidence of cruelty and adultery, the ecclesiastical court granted a

decree of judicial separation, subject to the usual condition imposed on a successful

wife in this situation. Lady D’Aguilar was ‘obliged to enter into a bond for the

observance of a chaste and continent life, without contracting marriage during the

lifetime of the offender’.172

169 Picciotto and Finestein, Sketches, 87, 91-3, 104.; Hyamson, Sephardim, 102; 434-436. As Gabay,

Baron D’Aguilar signed an order for the Bet Din to examine whether a get should be granted. See LMA/4521/A/01/03/003, Minutes of the Mahamad, 30 Menahem 5520 (1760), fol.15. 170 The Baron tried but failed to evade the charge of adultery on the grounds that Jewish law permitted

concubinage. 171 D’Aguilar (1794) 162 Eng. Rep. 748 at 753. 172 Shelford, A Practical Treatise of the Law of Marriage and Divorce; Containing Also the Mode of

Proceeding on Divorces in the Ecclesiastical Courts and in Parliament [...] Vol. 33. 192. For the

bond in the sum of £100 dated 7 November 1794 see LMA: DL/C/562/176.

186

Winning the ecclesiastical court action gave Lady D’Aguilar enhanced financial

remedies compared to those due to her from her ketubah. In Jewish law, a divorced

wife was entitled to the return of her dowry but was not entitled to alimony paid by

the ex-husband after divorce.173 During an ecclesiastical court action, a wife was

entitled to ‘alimony pending suit’ but, more importantly, wives who were successful

in their suit were awarded permanent alimony assessed on equitable principles of

what was ‘fair and just’, which enabled them to be ‘liberally supported’.174 Since

Lady D’Aguilar was independently wealthy, she was not regarded as in need of

subsistence from her husband. As a measure of the court’s disapproval of the

Baron’s violent and oppressive behaviour, the court used its discretionary power to

relax the general rule that wealthy wives could not recover their expenses of the

action and awarded Lady D’Aguilar her costs. The separation decree altered the

balance of power as between the spouses over the property settled on Lady

D’Aguilar at the time of the marriage. She had brought to the marriage a dowry of

£10,000 and £1,000 per annum for her sole use.175 In support of her cruelty

allegations, Lady D’Aguilar pleaded that the Baron had forcibly seized jewellery and

personal effects to the value of £8,000 and had compelled her to execute a deed of

assignment of £3560 of South Sea stock in his favour.176 These allegations were

struck out as evidence of cruelty because, in relation to the personal effects, there

was a general presumption that a husband was entitled to the property of the wife,

and in relation to the stock, that it was improper to investigate the allegation ‘if the

parties did not resort to Courts which can invalidate the act.’ With a separation

decree, Lady D’Aguilar finally broke free of the Baron’s hold on her personal

wealth.

The D’Aguilar case illuminates that choice of jurisdiction depended on complex,

interlocking factors. Where enforceable remedies were only available in civil law,

there was strong motivation for stepping outside the boundaries of communal norms

which tolerated civil litigation in respect of monetary matters but frowned upon

173 Epstein, Jewish Marriage Contract, 100; Tirzah. Meacham, "Legal-Religious Status of the Married

Woman", Jewish Women's Archive, https://jwa.org/encyclopedia/article/legal-religious-status-of-

married-woman. (Accessed 02/09/2019). 174 Shelford, A Practical Treatise of the Law of Marriage and Divorce; Containing Also the Mode of

Proceeding on Divorces in the Ecclesiastical Courts and in Parliament [...] Vol. 33. 346, 350-51. 175 Picciotto and Finestein, Sketches, 92. 176 D’Aguilar (1794) 162 Eng. Rep. 748 at 750.

187

litigation that challenged exclusive jurisdiction over personal status issues. That

temptation was all the stronger for Sephardi litigants because of the London

community’s voluntaristic status. The legal pluralism that created space to practice

specifically Jewish remedies for marital breakdown had practical limits in the real

world, for Jews who were not strongly committed to the religious value of resolving

marital difficulties in the Jewish judicial space inevitably looked for alternative

remedies in the ecclesiastical courts.

3.3 Litigating in the local courts: ill-treatment and maintenance

The fact that the D’Aguilar litigation fits into a pattern of wealthy Sephardim using

the ecclesiastical courts does not necessarily mean that choice of jurisdiction was

mainly driven by factors such as economic resources and social class. These socio-

economic factors are, according to Kerner, the reason why the Tribunal became a

social service for the poor, but an unremarked fact in the D’Aguilar case supports my

argument that the ‘functionality’ of the Tribunal cannot be deduced from the identity

of its users.177 In 1772, the local magistrates made an order binding over the Baron

to keep the peace, after Lady D’Aguilar accused him of violently beating her.178 The

assault occurred when the Baron was still active in communal affairs, but there is no

evidence that Lady D’Aguilar used informal mediation within the community. She

and her advisers were likely aware that their only hope of stopping the Baron’s

violent behaviour was through court action with its ultimate threat of imprisonment.

Lady D’Aguilar’s action suggests that an individual’s choice of jurisdiction

correlated to the type of harm they had suffered and that this dictated the venue for

litigation. Consequently, forum selection transcended socio-economic

considerations.

In turning to local magistrates, Lady D’Aguilar acted no differently to her less

privileged counterparts in the congregation who had suffered some form of violence

against the person. Despite the complexities of eighteenth-century justices

confusingly broad range of judicial and administrative responsibilities, ordinary

Sephardim were adept at using justices’ powers to obtain a remedy for two common

complaints documented in the Livros, claims of ill-treatment, and claims for non-

177 Kerner, "Arbitration", 102.; "Livro De Pleitos", 277. See Chapter IV, section 2. 178 D’Aguilar, 161 Eng. Rep. 748 at 751.

188

payment of maintenance. Ill-treatment claims invoked the justices’ jurisdiction over

‘criminal or interpersonal offences’, which covered allegations of violence. At the

lesser end of the scale, these were classed as misdemeanours or petty offences that

justices could dispose of in various ways.179 Since justices had a duty to ‘reconcile

quarrels and differences’ between complainant and perpetrator, they acted as

mediators with the aim of obtaining a verbal or written apology from the accused and

the payment of costs incurred. If mediation failed, justices used the recognizance

procedure under which the accused agreed to certain conditions placed upon his

future behaviour, paid a surety, or bail, and was bound over to keep the peace until

the next justices’ session. Failure to pay the surety could result in imprisonment and

the accused was liable for further financial penalties if he breached the ‘articles of

peace’ imposing conditions for his good behaviour. Escalating a case still further,

justices had the right summarily to convict without a trial, impose a fine, or imprison

the accused in a house of correction. Only the most serious cases of violence were

tried on indictment before a judge and jury at the Old Bailey.180 Justices favoured

settlements in which the accused paid the victim compensation or made a formal

apology, rather than invoking the enforcement powers of the state. In this respect,

offences were treated as akin to civil rather than criminal matters.181

3.4 Dispute resolution at the Tribunal

While the Tribunal could not compete with justices’ formal enforcement powers, both

they and the justices shared the goal of securing a compromise between accuser and

accused. The Tribunal’s adjudicatory role in cases of physical violence against a

spouse bore similarities to the mediation responsibilities of local magistrates.

179 Lemmings, Law and Government in England During the Long Eighteenth Century: From Consent

to Command, 28. 180 See Bailey, Unquiet Lives, 38-43. Bailey’s quotation cites at p. 39 f. 42, J. M. Beattie, Crime and

the Courts in England, 1660-1800 (Oxford: Clarendon, 1986), 268. On London’s justices of the

peace, see https://www.londonlives.org/static/CriminalCourts.jsp#Sessions 181 Drew D. Gray, "The Regulation of Violence in the Metropolis; the Prosecution of Assault in the

Summary Courts, C.1780–1820", The London Journal 32 (2007), 75-87: 77.; Norma Landau,

"Indictment for Fun and Profit: A Prosecutor's Reward at Eighteenth-Century Quarter Sessions", Law

and History Review 17 (1999), 507-536. See, for example, LMA: MJ/SP1789/02/04 “Benjamin Levy,

hair dresser, of Petticoat Lane, Whitechapel, releases Daniel Mendoza, of Bethnal Green, upon receipt

of two pounds and two shillings in compensation: Abraham Isaac, witnesses the release 1789 Feb 05-

23”

189

Congregants used both the magistrates and the Tribunal in broadly similar ways to

achieve a negotiated compromise that would put a stop to violent behaviour. Yet, the

fact that these jurisdictional choices could be used for the same end does not alter the

crucial difference between them, namely, that local justice gave aggrieved spouses

access to enforcement methods unavailable to the Tribunal.

To confront this reality, the Tribunal pragmatically used its permission system as a

gateway to English justice and state enforcement powers where the issue between the

spouses concerned the financial implications of their separation. Permission was

granted to avoid a complainant being prevented from obtaining redress altogether.

While in theory this strategy posed a challenge to the rabbinical authorities’ claim to

exclusive jurisdiction over matters of personal status in marriage and divorce, the

reality was that most marriage breakdown cases did not engage the halakhic rules

governing the dissolution of a marriage. Instead, these cases centred on the financial

consequences of a separation, issues that could be resolved consensually either at the

Tribunal, or in the magistrates’ courts if state enforcement authority were necessary to

ensure that husbands continued to maintain their wives after the couple separated. By

the nineteenth century, the explicit deferral to local justices’ enforcement powers had

become apparent, with the Mahamad declining to hear a dispute between spouses

which was already before magistrates because there was little likelihood their

mediation efforts would be successful.182

3.4.1 Marital violence disputes at the Tribunal

State enforcement powers were sometimes necessary to address allegations of spousal

violence. These cases are a sub-set of a larger group of cases which frequently appear

in the Livros, the quarrels between relatives, friends, and neighbours, who accused

one another of ill-treatment, even escalating to physical violence.183 Space does not

permit a detailed discussion of the larger group of cases, except to emphasise that they

exemplify how the Tribunal unhesitatingly granted permission to sue in English courts

182 LMA/4521/A/01/21/005, Abraham de Isaac de Abraham Nunes Martines v his wife, 29 Hesvan

5570/8 November 1809. 183 Space has not permitted an analysis of gender issues in the Livros. However, they suggest that

some women congregants were prepared to complain about their husband’s violent behaviour. See,

generally, Margaret Hunt, "Wife Beating, Domesticity and Women's Independence in Eighteenth‐

Century London", Gender & History 4 (1992), 10-33.

190

where the parties refused to settle before them. Permission often appears to be a

bargaining tactic to force defendants to compromise. When settlement was not

forthcoming, permission functioned as a threat to co-opt state enforcement powers in

the interests of controlling the defendant’s behaviour.

Typical examples of these policies are the following. When the wife of Moseh

Cardozo alleged that her husband physically assaulted and mistreated her, the

Tribunal accepted her allegations and enforced its recommendation for the couple to

‘live in peace’ by giving the wife conditional permission to use the courts if her

husband repeated his behaviour.184 Conversely, when Judah Delmonte complained

that his wife had obtained a warrant against him for breach of the peace without

permission for having been physically violent towards her, the Tribunal ordered her

to discharge the warrant but at the same time severely reprimanded Judah for his

behaviour.185 Allegations made by the wife of Abraham Garcia, which seem

identical to those in the Delmonte case, ended with ‘no order’. Was the Tribunal

unconvinced by the allegations, or had mediation reconciled the couple such that no

further intervention was necessary?186 The Livros provide no clue why the Tribunal

adopted different strategies in these cases. Wives who had suffered ill-treatment

could have their predicament considered indirectly after intervention by a relative.

In one such case, the Tribunal gave a wife’s brother ‘permission to take any steps he

may think proper to cause his Brother in Law to keep the peace’.187 However, when

hearings before the magistrates had already begun, the Tribunal invariably deferred

jurisdiction to them and refused to entertain complaints.188

Although the Tribunal’s interventions appear ineffective compared to the

magistrates’ powers, it has to be remembered that ‘[t]he most commonly used form

of prosecution in cases of marital difficulties was justices’ mediation, usually

between wives and violent husbands’.189 This description of court mediation

emphasises that a warrant merely gave a constable power to bring the husband

184 LMA/4521/A/01/21/003, Cardozo v Cardozo, 7 Kislev 5546/9 November 1785;

LMA/4521/A/01/21/004, Abigail Nunes Carvalho v her husband, 21 Elul 5564/28 August 1804. 185 LMA/4521/A/01/21/003, Delmonte v Delmonte, 28 Tebet 5552/23 January 1792. 186 LMA/4521/A/01/21/004, Garcia v Garcia, 27 Elul 5564/3 September 1804. 187 LMA/4521/A/01/21/005, Jacob de Carvalho v Jacob de Hanoj Cohen, 27 Kislev 5583/10

December 1822. 188 LMA/4521/A/01/21/005, Abraham de Isaac de Abraham Nunes Martines v his wife, 29 Hesvan

5570/8 November 1809. 189 Bailey, Unquiet Lives, 39.

191

before the magistrate, whose first priority was to find a compromise between the

spouses.190 Magistrates’ prosecutions were ‘the cheapest means for wives to achieve

formal intervention’ and have fines imposed on their violent husbands.191

Complaints of violence against men feature in the Livros but it was rare for husbands

to admit that their wives ill-treated them. Israel Barda accused his wife Luna of

mistreating him, of throwing him out of the house and having him arrested. The

Tribunal recommended that the couple settle amicably and make peace. The record

is as interesting for what it conceals as for what it reveals, as it seems unlikely Luna

would have had grounds to request the arrest of her husband if he had not been the

perpetrator of violence against her. That subverts the surface narrative into a

complaint against the wife for the fact of the arrest, more than a genuine complaint

of violence perpetrated by the wife against the husband.192 There was no further

complaint by either spouse to the Tribunal from which one may infer that they either

resolved their marital difficulties or abandoned using the Tribunal altogether.

3.4.2 Maintenance claims at the Tribunal

Non-payment of maintenance claims were heard by justices of the peace in the

context of their regulatory role under ‘statutes intended to discipline the habits of the

common people in their social and economic relations.’193 Where wives became

chargeable to the parish for poor relief, justices were required to assist poor relief

officers by facilitating enforcement action against husbands to recoup expenditure

which the law regarded as their responsibility.194 Applicants for poor relief applied to

the overseers of the poor of their local parish, who made the initial decision whether

or not to grant financial assistance. The grant of poor relief to a wife did not absolve

a husband from his responsibility in English law to maintain her, which could not be

190 Roebuck, Boorman, and Markless, English Arbitration Eighteenth Century, 69. On the role of

Jewish policemen, see Macfarlane, "Jewish Policemen". 191 Bailey, Unquiet Lives, 40. 192 LMA/4521/A/01/21/002, 26 Tamuz 5541/19 July 1781. 193 Lemmings, Law and Government in England During the Long Eighteenth Century: From Consent to Command, 28. 194 Bailey, Unquiet Lives, 39.; Heather Shore, "Crime, Criminal Networks and the Survival Strategies

of the Poor in Early Eighteenth-Century London", in The Poor in England 1700-1850: An Economy

of Makeshifts, ed. Steven King and Alannah Tomkins (Manchester University Press, 2003), 137-165:

147. See generally Tim Hitchcock, John Black, and London Record Society, Chelsea Settlement and

Bastardy Examinations, 1733-1766 (London: London Record Society, 1999). For an introduction to

poor relief, see https://www.londonlives.org/static/PoorLawOverview.jsp

192

derogated from by separation or desertion. Bailey writes that justices became

involved in maintenance cases in various ways: orders were made to seize a

husband’s goods to reimburse parishes; wives’ appeals against inadequate poor relief

were heard, and parish disputes over pauper settlements adjudicated.195

Although it is apparent from the Livros that the economic stability of separated or

abandoned wives was a central concern of the community, the brevity of the Livros

makes it difficult to construct a detailed, comprehensive picture of the Tribunal’s

strategy to address their plight. However, it is possible to discern that many

congregants who suffered marital difficulties were dependent on sedaca funds or on

small business loans from the Ma’asim Tobim.196 Since payments were generally

made to husbands, wives lost access to these funds on separation or desertion. These

wives, who had no independent access to communal charitable funds, had no

alternative but to pursue their husbands directly through the magistrates’ courts or to

appeal to the parish for poor relief. Co-option of court enforcement powers

occasionally involved the Tribunal’s officers liaising directly with magistrates. Lea

Belforte accused her husband of abandoning her and when the Tribunal’s efforts to

reconcile the spouses failed, they gave Lea conditional permission to use the courts if

her husband continued to mistreat her. The husband must have assaulted Lea again

because she had him jailed and, when he persistently failed to provide Lea with

support after his release from jail, the Tribunal advised Lea to have him rearrested

with the secretary’s assistance.197

As to parish poor relief, by the nineteenth century the Tribunal was taking an

interventionist stance by expressly advising congregants to make applications to the

parish. For example, a third party who for some years had supported a deserted wife

and who had finally ascertained the husband’s whereabouts, was recommended ‘to

apply to the Churchwardens of the parish wherein she resides who are the proper

persons to interfere in the business.’198 Deflecting economic assistance for separated

or deserted wives from the synagogue to the parish even went so far as the Mahamad

instructing the community’s solicitors to handle magistrates’ court proceedings

195 Bailey, Unquiet Lives, 39. 196 Lieberman, "New Practices". 197 LMA/4521/A/01/21/003, Lea Belforte v Jacob Belforte, 28 Sebat 5548/8 January [sic. 6

February]1788. 198 LMA/4521/01/21/005, Philip Philips v Wellcome Cohen, R.H. Tamuz 5585/16 June 1825.

193

against husbands who had failed to support their wives. They communicated their

hard-line policy by affixing a notice to the synagogue yard that they had ‘authority of

the Acts of Parliament [in desertion cases]’ to institute legal proceedings against

husbands.199 Interestingly, these cases are further evidence that local magistrates did

not accord the Tribunal legal recognition in relation to its adjudicatory role. Rather,

the magistrates (as well as the overseers of the parish poor) saw the Mahamad as a

voluntary, administrative authority only.

Although halakhah entitled wives to support from their husbands when they were

living together, wives who voluntarily left their husbands (irrespective of the reasons

for so doing) were not entitled to demand financial support, and there are cases in the

Livros where a wife left a husband and did not make a claim for maintenance.200

Whether halakhic considerations troubled the Tribunal is very difficult to say. There

is an example of a maintenance claim that was referred to the Bet Din, but the brief

facts suggest that there may have been other halakhic issues which prompted the

referral. The wife of Hananel Carvalho summoned her husband to demand

maintenance from him, as well as her clothes, and the husband made (unrecorded)

counter-complaints against the wife. The Tribunal immediately ordered the husband

to return the wife’s clothes, but at the same time it requested the Bet Din to examine

the case and report to them.201 The brief facts do not indicate why this maintenance

claim, which was no different to many others, should have warranted the Bet Din’s

involvement. It is possible therefore that the husband’s unrecorded complaint

against his wife touched on sensitive halakhic issues (possibly adultery) which may

have justified separation without payment of maintenance.

199 LMA/4521/A/01/03/008, Minutes of the Mahamad, from 4 Adar 5582/25 February 1822 and 16

Kislev 5583/28 November 1822, magistrates court proceedings against Samuel de Gabriel Costa and

Isaac de Joseph de Moseh Nunes Martines for desertion. The proceedings were ineffective as the

synagogue continued to support the deserted families financially (pp. 249, 257, 259). The costs of

proceedings were £27.13.2 (p. 275). The broader context of these two examples was a new

phenomenon of husbands who deserted their Jewish wives after starting a new relationship with

Christian women. 200 LMA/4521/A/01/21/003, Isaac de Joseph de Moseh Nunes Martines v his wife, 28 Hesvan 5553/12 November 1792; LMA/4521/A/01/21/004, Jacob de Gabriel Costa v his wife, 28 Tamuz 5560/21 July

1800. Both cases were initiated by the husband, who wanted the Mahamad to persuade his wife to

return to the marital home. In the first case, the Mahamad made the unusual order that the wife return,

failing which the husband had permission to use the courts. The case does not specify what the

Mahamad had in mind other than, perhaps, an ecclesiastical court application for restoration of

conjugal rights. 201 LMA/4521/A/01/21/004, wife of Hananel Carvalho v husband, 26 Tebet 5560/23 January 1800.

194

The Tribunal’s practical approach to maintenance claims met with varying success.

The Tribunal successfully intervened when a voluntary maintenance arrangement

between spouses collapsed. When the wife of Jacob Espinoza complained about her

husband’s failure to pay her 2/6 per week, the Tribunal was unwilling to accept the

husband’s plea of poverty at face value and instead assisted the couple to negotiate

an acceptable weekly payment, albeit a reduced amount from their original

agreement.202 In other cases, mediated settlements included the Tribunal’s express

consent to the couple living separately, as well as a maintenance order for the

husband to support the wife.203 Without the cooperation and willingness of both

spouses to compromise, mediation inevitably failed. When Benjamin Bernal refused

to appear to answer his wife Rachel’s complaint that he failed to maintain her, his

unwillingness to cooperate resulted in the Tribunal giving the wife permission to

seek a maintenance order from the courts.204 Maintenance claims often followed

Bailey’s description of a staged process towards finding a solution to marital

difficulties.205 Rachel Uzielli summoned her husband twice in two years to the

Tribunal for failure to maintain her. On the first occasion, the Tribunal made no

order when the husband pleaded poverty but on the second occasion, after he had

abandoned Rachel to live with another woman, the Tribunal ordered that, if he did

not support his wife, she had permission to prosecute him.206

Maintenance claims had additional hurdles for unmarried mothers. Before being

eligible for poor relief, unmarried mothers had to undergo the humiliating process of

a bastardy examination in the courts where they were required to identify their

child’s father so that he could be pursued for maintenance.207 In the Tribunal,

however, unmarried mothers who wished to make maintenance claims necessarily

202 LMA/4521/A/01/21/003, wife of Jacob Espinoza v husband, 28 Nisan 5548/5 May 1788. It is

unclear whether the wife was separated from her husband at the time she made her complaint. 203 LMA/4521/A/01/21/002, Hanah Mendoza v Judah Mendoza, 27 Menahem 5539/9 August 1779;

LMA/4521/A/01/21/003, wife of Judah Mendoza v Judah Mendoza, 3 Hesvan 5552/31 October 1791. 204 LMA/4521/A/01/21/002, Rachel Bernal v Benjamin Bernal, 28 Nisan 5541/23 April 1781. 205 Bailey, Unquiet Lives, 30. 206 LMA/4521/A/01/21/003, Rachel Uzielli v Joseph Uzielli, 5 Sivan 5551/7 June 1791; 26 [27]

Menachem [5553]/5 August 1793. 207 Hannah Barker and Elaine Chalus, Women's History: Britain 1700-1850 (London: Routledge,

2005), 156. Hitchcock, Black, and Society, Chelsea Settlement, x. For an example of Jews making

bastardy applications, see MJ/SP/1789/06/007, June 1789, David Levy, salesman, of Rosemary Lane,

Saint Mary, Whitechapel, accused of fathering an illegitimate child with Catherine Nathan, by the

parish of Saint Botolph, Aldgate. Levy's appeal against the order of affiliation was dismissed.

Bastardy and mamzerut are not identical. See Appendix C, Glossary, mamzer. On the exceptionally

rare cases of mamzerut, see Chapter 6, section 3.

195

disclosed the identity of their child’s father because he had to be summoned to the

hearing, which focused on the financial aspects of supporting the unmarried

mother.208 By the nineteenth century, the Tribunal’s attitude towards maintenance

claims by unmarried women seems to have hardened. When faced with an unmarried

pregnant mother and the alleged father who denied paternity, the Mahamad referred

the case to the Ḥakham rather than hearing evidence themselves on the disputed

paternity issue. The Ḥakham would have been the appropriate halakhic authority to

decide whether the relationship between the couple constituted a recognised form of

Jewish marriage that would entitle the mother to maintenance, assuming paternity

was established.209 When the unmarried mother of a nineteen-month-old child

would not agree to maintenance of 1/6 per week from the child’s father, the Tribunal

directed her to take him before a magistrate, where she would be subjected to

bastardy procedures if the father did not co-operate in disclosing his identity to

magistrates.210

4 The tribunal’s attitude to divorce and separation

Although eighteenth century Jews had a better right in Jewish law to formal religious

divorce and remarriage than their English Christian counterparts had under English

ecclesiastical law, we know from the Bet Din’s evidence in the Lindo case that

divorce was discouraged particularly when the couple had children, but that divorce

was to be preferred where there was marital disharmony.211 This general statement

of communal attitudes towards divorce is borne out in the Livros and Mahamad

minutes and orders or resolutions, which indicate that a Jewish divorce was a very

rare occurrence, there being only about 30 recorded divorces in the period 1772 to

1868. A few divorces arose out of kiddushin cases as I have already discussed, but

the majority were given after marital breakdown.212

The foundational Ascamot provided that no person was to give a get nor to write one

without first obtaining permission from the Mahamad, except for conditional gittim

208 LMA/4521/A/01/21/002, Reyna Fernandes v Naphty Paz de Leon, [-] Sebat 5534/[February 1774].

Only financial details are documented. 209 LMA/4521/A/01/21/005, Benjamin Noah v Daniel Suhany, 28 Tamuz 5585/14 July 1825. 210 LMA/4521/A/01/21/006, Judith Solomon v Isaac Valentine, 27 Hesvan 5599/12 November 1838. 211 LPL: Arches D 146, microfiche 757, fol. 921, Bet Din Answers to Sir William Scott. 212 In the same period, 10 divorces were refused. On the Bet Din and divorce matters, see Chapter VI,

section 3.2.

196

made ‘on the brink of death’.213 In the extensive revisions of the Ascamot of 1781 to

1785, this provision was omitted and was not revived in the nineteenth century

Ascamot. Communal control over the dissolution of marriages was standard

practice, even though from a halakhic perspective divorce was a private matter for

the couple, albeit that the balance of power in the relationship was weighted to the

husband, who was solely empowered to write a bill of divorcement and hand it to his

wife.214 An explanation for the omission of the divorce ascama may be that a

separate rule regarding gittim was considered to be superfluous, since the Ḥakham’s

general authority over dinim already encompassed divorce, and by the 1780s it was

accepted that the Ḥakham, and not the Mahamad, had supreme authority to make

halakhic rulings about divorce. Nevertheless, it continued to be the normative

practice of the community that the Mahamad remained intimately entangled in the

procedural decision-making process in relation to divorce, and it was not unknown

for the Mahamad to set broad parameters for community policy towards divorce

among congregants. For example, although the Mahamad permitted divorcees to

remarry, they frowned on ‘serial’ divorces, and thus refused permission to a twice-

divorced man to marry for a third time.215 By the nineteenth century, the Mahamad’s

strict procedural control over divorce had waned to such an extent that in 1826 they

rebuked the Ḥakham for failing to adhere to their 1816 policy first to obtain the

Mahamad’s permission before writing a bill of divorcement. They stated that ‘in

future he will not pass Guet nor Halisa between any parties without first apprizing

the Mahamad of its necessity, and obtaining their leave in writing…’.216

Broadly, divorce occurred in two main contexts. I have already discussed the first

context of the unravelling of kiddushin, pointing to the halakhic requirement that

betrothals could only be dissolved by the groom giving his affianced bride a formal

get. The Mahamad had an administrative role only to formally give permission for

213 Ascama 36, Barnett, El Libro De Los Acuerdos, 12. 214 Epstein, Jewish Marriage Contract, 201-206. For current critiques, see Lisa Fishbayn Joffe,

"Gender and Jewish Law", Melilah: Manchester Journal of Jewish Studies 13 (2019),

http://www.melilahjournal.org/p/2019-volume-13.html; Laliv Clenman, "Response to Lisa Fishbayn

Joffe, "Gender and Jewish Law"", ibid. 215 LMA/4521/A/01/02/002, Orders and Resolutions of the Mahamad, 10 Adar 5536/[1 March 1776]],

Isaac Baquis; 27 Tisry 5540/7 October 1779, Moseh Romano. 216 LMA/4521/A/01/03/009, Minutes of the Mahamad, 29 Tebet 5586/8 January 1826, p. 57.

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the get to be written by the Bet Din.217 The second context for divorce was the

breakdown of a marriage in which the two-stages of kiddushin and nissu’in were

complete and the couple had set up home together. This was the most common type

of marital breakdown, for which there were less clear-cut resolution patterns. The

Mahamad’s general approach to resolving marital difficulties was either to reconcile

the parties to ‘live in peace’, or alternatively agree that the spouses live separately,

having facilitated a negotiated settlement of financial arrangements to support the

separated wife. It was rare for the Livros even to mention the possibility of a

divorce. Although it is possible divorce may have been discussed but not

documented, it is more likely that the Livros reflected normative communal policy

that separation was the appropriate remedy for marital breakdown. The exceptional

nature of get is revealed by several cases documented in the Livros and the

Mahamad’s administrative records. David and Benvenida Genese’s marital

difficulties started just nine weeks after their marriage, when they approached the

Ḥakham for a divorce, but he informed them that they would never be granted

permission to divorce. For four years the spouses and their relatives frequently aired

their marital difficulties at the Tribunal, including allegations against Benvenida of

immoral behaviour, about which the Tribunal rather obscurely record in the Livros

that ‘Tho’ by the above & other circumstances it was plain her behaviour was

Blameable Nothing Criminal appeared’.218 Benvenida was granted permission to sue

her husband after he refused to maintain her, and eventually the spouses were given

permission to divorce.219

217 LMA/4521/A/01/02/002, Orders and Resolutions of the Mahamad, 8 Nisan 5536/28 March 1776,

p.9: Judah Parente and daughter of Jacob Barzilay; LMA/4521/A/01/03/004, Minutes of the

Mahamad, 25 Iyar 5549/21 May 1789, p. 56: Nissim Ben Zeraf and Lea Arrobas;

LMA/4521/A/01/3/005, Minutes of the Mahamad, 27 Adar 5556/8 March 1796, p. 86: Jacob Del Mar

and Mazaltob Levy asked the Mahamad to request the Bet Din to examine their kiddushin; Ibid., 26

Tamuz 5556/1 August 1796, p. 104, the Bet Din ruling that the kiddushin was erroneous and invalid,

with a recommendation that Jacob Del Mar give a get. See also, LMA/4521/A/01/03/011, Minutes of

the Mahamad, 28 Nisan 5610/10 April 1850, p.234: request by the widow of Lazarus Jacobs for

Joseph de Joseph Rodrigues to release her daughter, to whom he had given kiddushin, ‘by passing

Guet between them such being necessary and he having consented to do so’. The Mahamad referred the matter to the Bet Din ‘to do the needful’. 218 LMA/4521/A/01/21/002, David Genese v Benvenida Genese, 30 Sebat 5533/[23 February 1773]. 219 LMA/4521/A/01/21/002, David Genese v Benvenida Genese, 20 Hesvan 5533/16 November 1772;

25 Kislev 5533/[21 December 1772]; 30 Sebat 5533/[23 February 1773]. The fact of the divorce

appears in LMA/4521/A/01/02/002, Orders and Resolutions of the Mahamad, 8 Nisan 5536/28 March

1776, p.9. For unknown reasons, Genese’s 1776 application to remarry was refused. The Genese case

is discussed in Samuel, "The Mahamad as an Arbitration Court", 24-26.

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It is difficult definitively to say whether permission to divorce was dependent on

whether the request was made by the husband rather than the wife, as two cases

heard at the same Tribunal session in 1797 illustrate. In the first case, a husband

asked for permission to divorce his wife because, according to him, she was

mistreating him, but the Tribunal recommended that the spouses ‘live in peace’. In

the second case, it was the wife who demanded – for undocumented reasons – a

divorce from her husband, but the Tribunal did not think it was appropriate to give

him licence to give her a get.220 Where a husband had a halakhic justification for

divorcing his wife – for example, on the grounds that she had committed adultery –

the grant of a get depended on the strength of his supporting evidence.221

In the eighteenth century, spouses who wished to divorce were subject to the

vagaries of the prevailing attitudes toward consensual divorce among the serving

Mahamad. In 1777, the President split a tied vote on an application for permission to

divorce by voting against.222 Attitudes towards consensual divorce began to relax at

the turn of the nineteenth century, reflected in a ruling of the Bet Din that as there

was ‘no way and manner to reconcile the parties to live as a married couple…as our

Holy law teaches us, to prevent any further sin, we think it right that they separate

before Guet [sic: get] that both parties consent to it and desire it…with the approval

of the Elders’, which approval was duly given.223 By the 1820s, the Livros were

recording cases of consensual divorce as an option, if not yet the default option, for

marital breakdown.224 Divorce as a remedy for marital difficulties had now become

entangled with a gradual increase in the number of Sephardi men who, as recorded in

220 LMA/4521/A/01/21/004, Moseh Edrengi v his wife and Wife of Jacob Espinoza v her husband,

both heard on Thursday evening, 28 Sebat 5557/23 February 1797. 221 LMA/4521/A/01/02/002, Orders and Resolutions of the Mahamad, 11 Sivan 5543/11 June 1783,

David Baruh and his wife. The facts that established the wife’s adultery are unstated. cf.

LMA/4521/A/01/21/004, Samuel de Isaac Palache v his wife, 26 Tamuz 5556/1 August 1796, where

the husband alleged that he discovered after the marriage that his wife was already six months pregnant,

and the dispute was referred to the Bet Din. The Palache case re-surfaced in the nineteenth century by

which time the spouses were divorced. On the paternity question, Judith Palache successfully claimed

charitable support from the Synagogue on the grounds that she was Palache’s daughter. See

LMA/4521/A/01/21/005, Judith Palache v Samuel de Isaac Palache, 29 Tisry 5583/13 October 1822;

LMA/4521/A/01/03/008, Minutes of the Mahamad, 29 Veadar 5584/29 March 1824, p. 337. On

adultery allegations at the Bet Din, see Chapter VI, section 3. 222 LMA/4521/A/01/02/002, Orders and Resolutions of the Mahamad, 18 Kislev 5538/18 December

1777, David Espinoza and Sarah daughter of Moseh Belforte. 223 LMA/4521/A/01/21/004, Esther wife of Jacob Espinoza v her husband, 27 Elul 5561/3 September

1801 and LMA/4521/A/01/03/005, Minutes of the Mahamad, 26 Tebet 5562/31 December 1801, p.

330, Jacob de Nathan Espinoza and his wife Esther de Abraham Mendes. 224 LMA/4521/A/01/021/005, Hana Toledano v M. De Jos. N. Martines, 29 Elul 5578/31 August

1818; Leah Lara Israel v Aron Lara, 29 Tisri 5589/6 October 1828.

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the Mahamad minutes, were abandoning their Jewish wives to live with (and

sometimes even marry) Christian women.225 This trend reflected the pace of

assimilation of the Sephardi community, as its congregants became increasingly

distant – both geographically and spiritually – from the synagogue in Bevis Marks,

thereby further loosening their commitment to communal behavioural norms and

Mahamad discipline.

5 Conclusion

The litigation choices of a handful of Sephardi Jews were instrumental in shaping the

relationship between the state and the Jews in the crucial arena of personal status, the

right to marry and the right to divorce. Eighteenth-century ecclesiastical courts’

encounter with these litigants resulted in clarification that Jews, like any other

citizen, were entitled to litigate before these Christian courts. It was a civil right of

all citizens to access their exclusive spiritual jurisdiction over marriage and divorce,

and Jews were not denied this civil right because of their religion. The ecclesiastical

courts admitted that it was unconscionable to expect Jews to be subject to Christian

notions of marriage and, accordingly, they accepted the principle that the validity of

Jewish marriage rites was to be determined by halakhic principles only. To that

extent, the ecclesiastical courts recognised a narrow space in which legal pluralism

could exist that gave Jewish law authority over Jewish marriage rites, and by

extension the continuing freedom of batei din to decide validity of marriage disputes,

subject of course to Sephardim voluntarily submitting to their jurisdiction.

This pluralistic framework fundamentally changed with the passing of the 1836

Marriage Act, which enacted civil marriage, and the Births and Deaths Registration

Act of the same year, which created a registration scheme that certified the secretary

of participating synagogues to act as civil registrar at the same time as a Jewish

marriage was celebrated. Civil marriage gave Jews, who once opted for secret

kiddushin as a way of circumventing parental and communal control over their

choice of marriage partner, an unimpeachably valid marriage in English law. This

changed the balance of power as against communal authorities, who gradually

225 LMA/4521/A/01/03/009, Minutes of the Mahamad, 27 Tisry 5588/17 October 1827, p. 150 and 28

Tebet 5592/1 January 1832, [n.p.]. In both cases, the Mahamad paid for the get to be written. See also

LMA/4521/A/01/03/009, Minutes of the Mahamad, 23 Adar 5605/2 March 1845, p. 39, which records

that the husband ‘married a Christian woman & abjured his religion.’

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permitted civilly married couples also to celebrate a Jewish marriage to keep them

within the fold.

The 1857 Matrimonial Causes Act, which transferred the jurisdiction of the

ecclesiastical courts to the new Divorce Court, entirely disrupted the eighteenth-

century pluralist framework that tolerated Jewish religious divorce. The state

asserted absolute and sole authority over the dissolution of divorce, relegating Jewish

divorce to a ritual, religious practice with no status in civil law. This led to changes

in Sephardi procedures for divorce, which was not permitted until a civil decree

absolute had been obtained. The legal framework of the Jewish community’s

relationship to the state vis-à-vis personal status was complete and endures to the

present day.

As to the Jewish judicial space, the eighteenth-century Sephardi community asserted

a greater degree of control over marriage and divorce because these were religious

matters over which halakhah claimed exclusive jurisdiction. These matters of

personal status also went to the root of identity and belonging to the Nation and were

vigorously controlled by internal procedures consenting to marriage and divorce.

Challenges to this authority through secret marriages occurred, but overall, most

disputes of this nature were resolved in the Jewish judicial space rather than in the

ecclesiastical courts. In relation to marital difficulties, like their English

counterparts, Sephardi Jews regarded divorce as an exceptional remedy, instead

preferring to agree a separation which catered for the financial needs of the separated

wife. Where financial disputes could not be agreed consensually, the Tribunal was

prepared to use its permission gateway to enable spouses to access the magistrates’

courts’ mediatory jurisdiction over maintenance disputes. The Mahamad recognised

that these maintenance disputes did not impinge on personal status issues and

therefore did not challenge fundamental halakhic principles on the dissolution of

marriage.

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VI. THE BET DIN IN THE JEWISH JUDICIAL SPACE

1 Introduction

In Chapter IV, we saw that the Jewish judicial space of the London community was

subject to the overriding authority of the Mahamad, in their capacity as lay judges in

the Tribunal. The Tribunal’s mediation, arbitration, or adjudication of civil disputes

was directed towards a realistic compromise between the parties to a dispute, rather

than rendering a ruling based upon strict halakhic or English legal principles. This

vision of the Tribunal’s authority appears to leave little room for rabbinical rulings in

civil disputes, yet the Livros reveal that there were occasions where the Tribunal

remitted all or part of a civil dispute to the Ḥakham or the Bet Din. Conversely, we

saw in Chapter V that the apparent overriding authority of the Mahamad to control

the boundaries of community identity was dependent upon the rabbinical authorities,

whose halakhic expertise and knowledge necessarily underpinned issues of personal

status concerning marriage and divorce. In this chapter, I examine more closely the

multifaceted, interdependent relationship between the Mahamad and the rabbinical

authorities. I explain how the Bet Din fitted into the community’s vision for dispute

resolution, as articulated by the Ascamot, and compare that vision with the practical

reality of the way in which the Bet Din and its dayyanim interacted with the

Tribunal. While in some respects lay and rabbinical authorities worked smoothly

together, inevitably tensions arose from the power imbalance between the

supposedly all-embracing executive and administrative authority of the Mahamad

and the Elders, and the Bet Din, who were the source of halakhic authority. As well

as considering the Livros case notes and Mahamad minutes, I examine depositions in

the Lindo v Belisario case of 1795, which provide rare, contemporaneous insight into

how the London community envisioned the relationship between the Mahamad and

the Bet Din.1 These sources suggest that the model of a dominant lay authority

masked an underlying respect for and deference to rabbinical authority in relation to

halakhic rulings.2 Of course, in an international context the London Portuguese Bet

1 Kerner, "Arbitration", 82-91; "Livro De Pleitos", 264. 2 My conclusion, elaborated at the end of section 2, challenges Kerner’s view of the Bet Din as

‘subordinate’ or ‘subaltern’ to lay authority. cf. Kerner in "Arbitration", 82-91; "Livro De Pleitos",

264.

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Din could not compete with the respected halakhic rulings of the Amsterdam

Portuguese Bet Din, nor did it ever have ultimate judicial authority over civil and

religious law, as well as the bureaucratic and administrative functions, of some

Ashkenazi batei din.3 But, contextualised within its own milieu, the London

Portuguese rabbinical authorities had a significant judicial function that persisted far

into the nineteenth century.

As to the Bet Din’s relationship with the state, the legal matrix in which the Bet Din

functioned was based on the reality that none of its rulings were enforceable as of

right in state courts because rabbinical courts did not have a separate, autonomous,

and recognised status in English law. Moreover, the fact that England did not have

an ‘embedded justice’ model for religious courts like those in Amsterdam, had two

important legal consequences for the Bet Din. Firstly, there was no specific

procedural mechanism by which its rulings could be given legal effect as civil

arbitration awards, outside of the framework of the Arbitration Act 1698, which

required all arbitration awards to be made rules of court for them to be enforced by

English courts. Secondly, there was no legal framework by which English courts

could remit cases into the Bet Din’s jurisdiction, on the grounds that it was the more

appropriate forum to hear disputes between Jews, and to make rulings according to

halakhic principles. This legal matrix shaped the relationship of modern batei din to

the English legal system.

2 The functionality of the Bet Din

When the congregation of Saar Asamaim drafted its foundational Ascamot of 1664,

the tiny community of former conversos did not have an appointed rabbinic figure

vested with halakhic authority. Rabbi Jacob Sasportas was invited to become the

Ḥakham shortly after the 1664 Ascamot were formally adopted, and a new Ascama

43 stated that he was to serve as Ḥakham, ‘declaring the Dinim on all days

continuously’, as well as preaching sermons, teaching, and ‘fulfilling the other

3 On the Amsterdam Portuguese Bet Din, see Kaplan, "Eighteenth Century Rulings". For the

subordinate role of the Metz Bet Din to lay authority, despite the wide-ranging nature of its

jurisdiction, see Berkovitz, Protocols, 66. On the establishment of institutional or permanent

rabbinical courts in the seventeenth and eighteenth centuries in Western European communities, see

Law's Dominion, 156-160.

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obligations of [his] office.’4 Dinim, meaning laws, implied that the Ḥakham had

apparent authority to provide rulings on all aspects of halakhah, but Sasportas’s

appointment did not specifically state how rulings were to be sought and given.

Moreover, no attempt was made to reconcile the potential clash of jurisdiction

between the Ḥakham’s authority to make halakhic rulings and the Mahamad’s

authority to decide civil disputes, or to control certain aspects of marriage and

divorce among the congregation.5 This issue was partially addressed in 1700, when

the Elders added an addendum to the Disputes Ascama, which provided that the

Mahamad had a duty to persuade the parties to try and resolve their differences in a

din torah, when mediation before the Mahamad failed.6 Since the term din torah

references an adjudicatory process before a religious court of three halakhically

qualified men, it is reasonable to assume that by 1700, such a court could be

constituted. It seems likely that, at this point, it was possible for litigants to use the

zabla procedure by which each party appointed a judge, who appointed a third judge,

all of whom served on an ad hoc religious court. In 1705, however, the Mahamad

passed an order for the establishment of a permanent Bet Din. The order stated that

the Bet Din would hear dinei torah in accordance with ‘what is customary for its

function in the Diaspora of Israel (“o q’ se estila lhe sua função no galut de

Israel”).’7 Consequently, by the early eighteenth century, it was possible for

congregants to submit their civil disputes to a permanent rabbinical court for a ruling

according to halakhic principles. The chain of authority, however, remained for

congregants first to submit a dispute to the Mahamad for mediation before a case

was remitted to the Bet Din for a din torah. In an early assertion of authority, the

Mahamad ordered the Ḥakham not to provide a din torah to Ester Saldana because

she made her complaint directly to the Ḥakham without first seeking redress through

the Mahamad.8 There are, however, rare occasions when the Livros show that the

4 Ascama 43, 17 Elul 5424, Barnett, El Libro De Los Acuerdos, 15. On Sasportas generally, see

Yaakov Dwek, Dissident Rabbi: The Life of Jacob Sasportas (Princeton: Princeton University Press, 2019). 5 For an early example, see LMA/4521/A/01/03/001, Minutes of the Mahamad, 6 Iyar 5495 (1735)

where the Mahamad ordered the Ḥakham not to provide a din torah to Ester Saldana because she

made her complaint directly to him without first seeking redress through the Mahamad. 6 I rely on Kerner’s discussion of these early Ascamot in Kerner, "Arbitration". 7 "Livro De Pleitos", 263. 8 LMA/4521/A/01/03/001, Minutes of the Mahamad, 6 Iyar 5495 [17 April 1735].

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Ḥakham had been directly instructed about a dispute before it reached the Tribunal.9

In 1751, the Mahamad vested sole authority to decide matters of kashrut to a single

judge of the Bet Din.10

The 1700 reference to din torah (without further qualification) implied that cases

would be decided solely in accordance with halakhic rules, ignoring even halakhic

equitable principles.11 This was a far stricter approach to that of the Amsterdam

Portuguese Bet Din, which made its rulings according to ‘law or close to law’.12

Amsterdam’s Ascamot also gave the Amsterdam Mahamad authority to decide civil

disputes according to customary merchant law when it did not conflict with

halakhah.13 It seems that the 1705 reference to the customary function of a bet din in

the ‘diaspora of Israel’ sought to bring the London Portuguese Bet Din’s practice

into line with other Western-Iberian communities. Interestingly, the 1780s

substantial revision of the Ascamot omitted these glosses. Instead, Ascama 17(3) of

1784 simply appointed the Ḥakham as Head of the Bet Din and stated that he was

‘obliged to declare the Din in all cases that are referred to him by any of the

Yehedim or Congregantors of the Kaal’. Ascama 17(3) also stated that the Bet Din

were permitted to decide any disputes between members and congregants that

required a determination ‘according to Din’.14 These provisions made a distinction

between halakhic rulings concerning disputes between members or congregants, and

rulings which affected the applicant only. For the former, the procedure remained

that the Mahamad had to be the conduit by which the Bet Din was instructed to

provide a ruling, whereas the latter could be referred directly to the Bet Din. These

twin-track procedures for instructing the Bet Din were carried over into the

nineteenth century printed Ascamot of 1831 (Ascama 12(3)) and 1850 (Ascama

9(3)).15

9 LMA/4521/A/01/21/002, Jacob de Abraham Bernal v Moseh Azoguy, 17 Iyar 5538/14 May 1778,

when the Ḥakham gave evidence as to the administration of an oath prior to a hearing taking place in

the Tribunal. 10 LMA/4521/A/01/03/002, Minutes of the Mahamad, 15 Tamuz 5511/July 1751. 11 Broyde, Sharia Tribunals, 162-163. 12 For Venice and Amsterdam see Chapter II, sections 2.1 and 2.2. For Livorno, see also Kerner,

"Livro De Pleitos", 264.fn. 18. For Hamburg, see Martins, "Justiça E Litigação". See para. 7, fn. 9. 13 Kaplan, "Eighteenth Century Rulings", 3. 14 Congregation of Spanish and Portuguese Jews of London, Ascamot of 1784, 81-82. 15 Ascamot of 1831, 72; Ascamot of 1850, 41.

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By the late eighteenth century, the Ascamot contained a mechanism to appoint

additional judges to the permanent Bet Din, if required, or to fill vacancies on the

court. The somewhat convoluted drafting in the 1784 and 1831 Ascamot to cover

these situations was replaced in the 1850 Ascamot, which provided that two

‘efficient persons’ were to be appointed to serve jointly with the Ḥakham, or for

three persons to be appointed if the office of Ḥakham was vacant. Any one of these

appointees had authority to ‘declare the Din’. Where a case occurred that ‘according

to Din’ necessitated a ruling by more than three judges, the permanent Bet Din

judges were given authority to select additional judges.16 During the last two decades

of the eighteenth century, the appointment of additional judges to the Bet Din was a

practical necessity. The Bet Din was already short of expertise, following the death

of Ḥakham Moses Cohen D’Azevedo in 1784, who was not replaced until Ḥakham

Raphael Meldola was appointed in 1804.17

We see in the Lindo case of 1793 to 1795 the appointment of Rabbi Isaac Delgado to

the court to serve alongside its two permanent members, Rabbis Hasday Almosnino

and David Henriques Julian. We also glimpse the theory behind the relationship

between the London community and its Bet Din from Esther Lindo’s interrogatories

filed in the Lindo case. In this document, Esther Lindo asked Belisario’s experts to

agree – and they did – that Jews were ‘obliged’ to submit questions ‘respecting

religious points’ to the Ḥakham and the Bet Din, who were the ‘sole Judges to whom

all Questions relative to the validity of marriage between Jews are constantly

submitted’.18 Belisario’s experts admitted that the power and authority of the

Ḥakham and the Bet Din was ‘of such a nature that Jews cannot deny the same or act

contrary thereto without infringing upon & in some measure giving up their

religion.’19 If this is an accurate reflection of how the London community regarded

their rabbinical authorities, it challenges assumptions that appointed, salaried rabbis

were beholden to, and by implication, potentially subservient to the lay communal

authorities in relation to halakhic decision-making.

16 Ascamot of 1850, Ascama 9(6). 17 Hyamson, Sephardim, 220. There was another large gap between Raphael Meldola’s death in 1828

and Benjamin Artom’s appointment as Ḥakham in 1866. 18 LPL Arches D 146, Esther Lindo further interrogatories, paragraph 7, microfiche 750, fol. 277r-

279v. 19 LPL Arches D 146, Deposition of Solomon Lyon, interrogatory paragraph 7, microfiche 746-47,

fol. 623-624.

206

Accordingly, the Lindo case suggests that it is necessary to distinguish between

procedural authority, which rested with the Mahamad and the Elders, and

substantive, halakhic authority, which was vested in rabbinical personnel. The

procedural deference of the rabbinical authorities to lay leadership was normative, as

Rabbi Hasday Almosnino conceded in his deposition filed in the Lindo case, in

which he deposed that ‘there are many acts he has power to perform without the

orders of the Mahamad or Vestry but in all cases relating to the examination of a

Kedusin the preparing a divorce and in many other cases he cannot nor can any other

officer of the synagogue act in any manner without the particular orders of the

Mahamad or Vestry’. Rabbi David Henriques Julian deposed in the same terms.20

The Lindo case also demonstrates that rabbinical procedural deference to lay

authority was something the Bet Din took very seriously, and it is a paradigmatic

example of the procedural mechanisms in place to govern the relationship between

the lay and rabbinical authorities. As mentioned in Chapter V, the Mahamad

received a written request from the Lindo family for the Bet Din to examine the

kiddushin between Aaron Mendes Belisario and Esther Lindo, after which the

Mahamad formally instructed the Bet Din to hear the dispute.21 After hearing all the

witnesses, the Bet Din wrote to the Mahamad on 9 October 1793 to inform them of

its ruling. At no stage in this process did the Mahamad instruct or otherwise

interfere with how the Bet Din conducted its hearings or attempt to alter or otherwise

intervene in the content of its decision.

In accordance with communal policy, the Bet Din’s opinion letter to the Mahamad

simply recorded that it had been instructed by the Mahamad’s secretary to hear the

case, it had heard the witnesses, and then stated its decision of safek kiddushin and

explained the relevant halakhic consequences for Aaron and Esther.22 A copy of the

Bet Din’s letter was sent to the parties.23 Following the Bet Din’s ruling, Aaron and

his brother, Solomon Mendes Belisario, lobbied the Bet Din, the Mahamad and the

20 LPL Arches D 146, Deposition of Hasday Almosnino, interrogatory paragraph 20, microfiche 753, fol. 799r; Deposition of David Henriques Julian, interrogatory paragraph 20, microfiche 752, fol.

765r. 21 See Chapter V, section 2.2 (b). 22 LMA/4521/A/01/03/004, Minutes of the Mahamad, 5 Hesvan 5554/9[sic.11] October 1793, 270.

For an early example of such communications, see LMA/4521/A/01/03/001, Minutes of the

Mahamad, 4 Tamuz 5500/[18 June 1740], 136: letter of Ḥakham Isaac Netto. 23 LMA/4521/A/01/03/004, Minutes of the Mahamad, 5 Hesvan 5554/9[sic.11] October 1793, 270.

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Elders for a ‘Pesac’ (pesak; legal judgment), the term that the brothers used for a

written, reasoned judgment to substantiate the Bet Din’s decision.24 Although the Bet

Din was willing to provide such reasons, it realised that Aaron’s request required it

to depart from its usual practice not to provide detailed reasons for its rulings.

Consequently, the Bet Din formally asked the Mahamad for permission to comply

with Belisario’s request.25 The request was so unprecedented that the Mahamad

referred the matter to the Elders for their advice. In the meantime, this seemingly

straightforward procedural request, about which the Bet Din had no substantive

objection, was transformed into an issue about the integrity and moral character of

the Bet Din members. The Bet Din took exception to the terms of a letter dated 13

October 1793 that Solomon Mendes Belisario had written to them in support of his

brother Aaron’s initial request for a pesak. In his letter, Solomon accused the Bet Din

of shirking their halakhic responsibility to provide a ‘Pesac’ according to din torah

of their original doubtful betrothal ruling, as well as misconduct at the original

hearings, which he threatened to broadcast to all the world.26 Following receipt of

the letter, the Bet Din complained to the Mahamad and the Elders that they had been

insulted in the letter. When the Elders met on 23 October 1793, they had two

interconnected issues to confront: firstly, whether to amend the current procedural

policy not to provide a written, detailed judgment explaining a Bet Din ruling, and,

secondly, what approach to take to the Bet Din’s complaint that they had been

insulted by the terms of Solomon’s letter. The Elders consulted the Bet Din on

whether, according to din torah, the Bet Din was required to submit to Belisario’s

request, to which the Bet Din responded that there was no obligation to give a pesak,

except when it chose to do so in order to clear its character.27 Following this advice,

it was decided that it was neither customary nor convenient for the Bet Din to be

obliged to give a pesak in respect of any of its decisions, and that it should refuse to

give Belisario what he had asked for.28 Subsequently, Ascama 17(9) was amended

24 LMA/4521/A/02/004, Orders of the Elders, 10 Hesvan 5554/16 October 1793, 279-294: see letter

dated 13 October 1793 from Solomon Mendes Belisario to the Bet Din; letter dated 22 October 1793 Aaron Mendes Belisario to the Elders. 25 LMA/4521/A/01/03/004, Minutes of the Mahamad, 5 Hesvan 5554/9[sic] October 1793, 272. The

Bet Din’s willingness to give the pesak, subject to formal consent of the Mahamad, is recorded in

LMA/4521/A/01/02/004, Minutes of the Elders, 10 Hesvan 5554/16 October 1793, 282. 26 LMA/4521/A/01/02/004, Orders of the Elders, 29 Hesvan 5554/ 4 November 1793, 287-289. 27 LMA/4521/A/01/02/004, Orders of the Elders, 17 Hesvan 5554, 23 October 1793, 293. 28 LMA/4521/A/01/02/004, Orders of the Elders, 29 Hesvan 5554/ 4 November 1793, 297.

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to state that anyone who insulted the Ḥakham or the Bet Din orally or in writing

would be fined £10.

These events reveal the delicate, nuanced relationship between the community’s lay

and rabbinic authorities. The Bet Din was highly sensitive about, and extremely

careful to act within, the parameters of its responsibility to decide halakhic matters.

This sensitivity included ensuring that it did not depart from the accepted procedural

practice to provide brief, written rulings as described above. While Kerner highlights

that rabbinical authority was subordinate to the lay leadership, I have argued here

that this applied merely to the procedural aspect. I do not agree that this aspect of the

Lindo case shows the ‘subaltern’ nature of the Bet Din to the Mahamad, where –

according to Kerner - ‘Din Torah appears as a recommendation and not as a binding

law, to be taken into account as part of a wider set of considerations.’29 Quite the

opposite; the evidence in the Lindo case established without any doubt that the

community treated Bet Din rulings as binding and authoritative.

3 The practical reality of the bet din’s role

Apart from the vision of how the permanent Bet Din was theoretically meant to

function, we know very little about the actual workings of the Bet Din, who did not

maintain separate detailed case notes, as exist for Tribunal cases in the Livros.

However, it is possible partially to reconstruct the nature of the Bet Din’s workload

indirectly from the Livros themselves as well as from the Mahamad minutes.30 The

Livros mention numerous cases where either all or part of a case was referred to the

Ḥakham or the Bet Din, and the Mahamad reproduced in its minutes the opinion

letters of the Bet Din on the matters which had been referred to it for its halakhic

decision. These sources show how the Bet Din was instructed to advise directly by

the Tribunal or by the Mahamad. This does not rule out that the Bet Din did provide

halakhic rulings directly to individual congregants, but if they did, documentation

29 Kerner, "Arbitration", 89-90. 30 The absence of formal Bet Din records is not unusual, see Jay R. Berkovitz, "Competing

Perspectives on Legal Decision Making in Early Modern Ashkenaz", Jewish History 31 (2017), 149-

171: 151. Even when court practice changed in the eighteenth century to preserve court records, the

focus was on preserving the ‘legal conclusions and the final decision’ with no detail or discussion of

the arguments.’ See Elon, Jewish Law, 1466, n. 42.

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has not survived. The traces of the Bet Din’s work in the surviving archival material

suggest that the Bet Din was mainly concerned with religious matters, and that civil

disputes comprised a small proportion of its judicial business.

3.1 Civil matters

There is just one case in the Livros in which the Tribunal explicitly remitted a debt

case to the Bet Din for a din torah.31 Isaac Saltiel owed Jacob Bravo £1.8.4, but the

brief case note does not indicate why this typical small debt case warranted a din

torah. The decision is even more puzzling because, two years later, Saltiel ignored

Bravo’s summons to the Tribunal, which led to the Tribunal giving Bravo

permission to use the civil courts. The inconsistency between, on the one hand,

insisting on a din torah and on the other, ignoring the Tribunal altogether, highlights

the difficulty in ‘decoding’ why litigants made jurisdictional choices.32 An

alternative reading of the decision to hear the case according to din torah is that the

Tribunal recognised that either one or both of the parties was acting unreasonably,

and that the suggestion of a din torah was a tactic designed to force settlement. In

October 1812, Jacob Bibas requested a din torah in relation to a dispute with his

brother, Judah Bibas, and the Tribunal resolved to refer the matter to the Ḥakham to

take whatever action he considered appropriate.33 No details are given about the

underlying dispute, but the Mahamad minutes contain an extensive account of a

‘pecuniary’ matter that the Bibas brothers were to arbitrate before the Ḥakham. It is

reasonable to suppose that the Livro and Mahamad minutes cases are connected and

that this is another rare example of a din torah of a financial matter by the Ḥakham.34

Notwithstanding that referral to the Bet Din for a din torah was exceptional, two

categories of civil disputes typically were remitted to the Ḥakham or the Bet Din:

firstly, when religious oaths were required to be sworn and, secondly, where there

was a conflict of evidence between the parties that the Tribunal considered could

31 LMA/4521/A/01/21/005, Jacob Bravo v Isaac Saltiel, 26 Iyar 5570/30 May 1810. 32 LMA/4521/A/01/21/005, Jacob Bravo v Isaac Saltiel, 28 Tamuz 5572/8 July 1812. 33 LMA/4521/A/01/21005, Jacob Bibas v his brother Judah Bibas, 28 Tisri 5573/4 October 1812. 34 For the significance of the Bibas arbitration to the issue of conflict of interests at the Bet Din, see

this chapter, section 5 below.

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only be resolved by the Ḥakham. Oath taking was the standard halakhic method of

resolving disputed oral testimony.35 There are 25 instances of oath-taking from 1772

to 1829, the period when the Livros case notes were at their most detailed. Although

a small sample, the oath taking cases illuminate that the Tribunal, and a minority of

congregants, were aware of the halakhic framework for the giving of oaths, and a

few cases even provide enough details to speculate about the type of religious oath

that was appropriate for the relevant circumstances.

The difficulty with these cases is that, although oath taking was theoretically a

halakhic mechanism to dispose of a case, several of these cases proved difficult to

settle because one of the parties refused to co-operate with the oath-taking process.

Typically, this was a defendant who denied he owed anything, and who refused to

take the defendant’s ‘I do not owe anything’ (shevu’at ha-torah) oath. Since

according to halakhah such an oath, if supplied, required the claim to be dismissed, it

is not a straightforward interpretative exercise to decode why a defendant did not

provide the oath. The refusal can be read as religiously motivated due to the

religious weight associated with the oath, or, alternatively, as implying an admission

that all or part of the debt was in fact owed. In these circumstances, the Tribunal

gave the plaintiff permission to sue in a civil court.36 Halakhic rules also provided

for judgment to be given to certain categories of plaintiff - e.g., shopkeepers,

landlords, and bill holders – who swore the ‘they swear and take’ oath as to the

amount still due from a defendant. Such an oath had an interesting twist in one of the

Livros oath-taking cases when a plaintiff, who had sworn this oath, subsequently

issued proceedings after the defendant failed to repay the debt. When the defendant

complained to the Tribunal that the plaintiff had sued him without permission, the

plaintiff successfully argued that the administering of the oath by the Bet Din

amounted to permission, presumably on the basis that he had judgment in his favour

35 For the halakhic background, see Menachem Elon, "Oath", in Encyclopaedia Judaica, vol. 15, eds. Fred Skolnik and Michael Berenbaum (Detroit: Macmillan Referencing USA in association with the

Keter Publishing House, 2007; Second ed.), 358-364; Berkovitz, Protocols, 60-65. 36 LMA/4521/A/01/21/002, Israel Bernal v Jacob de Abraham Bernal 20 Hesvan 5533/16 November

1772 (the defendant denied owing anything but refused to swear an oath, permission given); Baruh

Sultan and David Zamiro v Joseph Misrahy 12 Tebet 5536/[4 January 1776]; Benjamin Bendahan v

Phineas Nunes Lara 28 Iyar 5538/25 May 1778. cf. Ibid., Joshua Bendick v Menahem Romano, 8

Nisan 5534/20 March 1774 (defendant agreed to swear an oath and the case settled.)

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which he was entitled to enforce.37 Oath taking frequently forced the settlement of

cases, as long as the parties agreed to it or a defendant was willing to submit to the

Tribunal’s order to that effect.38

There are several dishonesty cases in which the defendant volunteered to deny on

oath the plaintiff’s accusation of misappropriating their personal property.39 Rarely,

the Tribunal rejected the use of oaths to resolve disputed evidence because they

distrusted the honesty of both parties.40 It was also exceptional for the Tribunal to

resolve slander cases through oath taking but in one case, where a defendant was

accused of calling the plaintiff’s wife an adulteress, the Tribunal asked the defendant

to swear to the truthfulness of the allegation, which he refused to do and the matter

was dropped.41

The influence of English legal culture on the swearing of halakhic oaths emerges

from an extraordinary debt case in which it was debated whether it was for the

plaintiff or the defendant to swear an oath ‘to the best of [the oath taker’s]

knowledge’ (standard wording in English affidavits) before the Lord Mayor or

sitting alderman. It was even suggested that the Ḥakham should draw up an affidavit

to this effect, a suggestion he rejected. The case was eventually settled when the

Tribunal warned the defendant that he would have to pay the debt if he did not swear

an oath that ‘to the best of his knowledge’ he had already paid the sum claimed, at

which point he agreed. The case note does not document whether this was a

halakhic oath administered in the usual way before the Ḥakham, or whether an

affidavit was drawn up to swear before the civil authorities.42 It was not unknown

for congregants to swear affidavits before the Lord Mayor, if to do so advanced a

37 LMA/4521/A/01/21/003 Benjamin Habilho de Fonseca v Selomon Rodrigues Ribeiro 26 Elul

5544/12 September 1784 and Ribeiro v Fonseca 28 Tisry 5545/13 October 1784. cf. Kerner,

"Arbitration", 87. 38 LMA/4521/A/01/21/002 Joshua Bentick v Menahem Romano 8 Nisan 5534/20 March 1774; Israel

Bendahan v Isaac Alvares 1 Hesvan 5541/30 October 1780; LMA/4521/A/01/21/003 David

Henriques Valentin v Jacob Gomes da Costa 26 Iyar 5551/30 May 1791; LMA/4521/A/01/21/004

Wife of Semuel Suhami v wife of David de Isaac de Abraham Nunes Martines 28 Tamuz 5558/12 July

1798; Abraham Benjamin v Rahamin Zitum 23 Nisan 5564/4 April 1804. 39 LMA/4521/A/01/21/002 Jacob de Abraham Bernal v Moseh Azoguy 17 Iyar 5538/14 May 1778; LMA/4521/A/01/21/004 Wife of Semuel Suhami v wife of David de Isaac de Abraham Nunes

Martines 28 Tamuz 5558/12 July 1798; LMA/4521/A/01/21/005 Rahamin Zitun v wife of Is van

Martines 30 Menahem 5567/2 September 1807; Sarah Cohen widow of Abraham Cohen v Simha

Henriques Cardozo 27 Kislev 5571/24 December 1810. 40 LMA/4521/A/01/21/002 Jacob de Abraham Bernal v Moseh Azoguy 17 Iyar 5538/14 May 1778. 41 LMA/4521/A/01/005 Samuel Dina v Abraham Toledano 26 Iyar 5566/15 May 1806. 42 LMA/4521/A/01/21/002 Widow of Saul Rodrigues v Isaac de Saa, 8 Nisan 5543/10 April 1783.

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dispute before the Tribunal. Witnesses for both sides in the Sarah Ximenes and

Joshua Lara elopement case of 1772 did so; Jacob Mendes Furtado in support of the

couple on 21 July 1772 and Mr and Mrs Capadose against them on 24 August

1772.43

The second category of disputes remitted to the rabbinical authorities were cases in

which the Tribunal instructed the rabbinical authorities to hear the substance of a

dispute. Whether these referrals were intended to be dinei torah, or whether the

rabbinical authorities were to act as alternative mediators or arbitrators, is not

documented, nor is it always apparent why the Tribunal considered it necessary to

send a case to the rabbinical authorities. An 1803 case note documents that the

Tribunal recommended to a husband and wife that they refer their dispute to the Bet

Din or louvados (assessors) but, without supporting details, it is impossible to know

whether the reference to assessors indicated that the dispute was civil, rather than

religious in nature, or whether it was the Bet Din itself who were to act as

assessors.44 There were occasions when a case was remitted to the Ḥakham alone,

such as a debt dispute about furniture valued at £14 between a father and son, which

the Tribunal recommended should be heard by the Ḥakham.45 No reason is given for

the recommendation, and one can only speculate that there may have been a halakhic

issue that it was necessary for the Ḥakham to decide, or that his personal authority

was necessary to break the impasse between family members. The Ḥakham’s

personal knowledge of the parties, as well as the underlying facts, appear to be the

motivation behind sending Ḥakham Moseh Cohen de Azevedo a 30-shilling debt

claim because he held a Note in trust for the plaintiff creditor, who had gone

bankrupt.46

43 See LMA/4521/A/03/08/001, Papers relating to marriage of Sarah De Isaac Ximenes Cardozo and Joshua de Aaron Nunes Lara. 44 LMA/4521/A/01/21/004, Joseph de Jacob Israel Brandon v his wife, 27 Adar 5563/21 March 1803. 45 LMA/4521/A/01/002 Joshua Habilho Benveniste v his son Benjamin Habilho Fonseca 25 Adar

5541/22 March 1781. 46 LMA/4521/A/01/002 Abraham Benjamin v Elias Cortisos 27 Adar 5533/[22 March 1773]. I leave

aside the apparent conflict of interest, which is impossible to assess, given the paucity of information

about the underlying dispute.

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3.2 Religious cases

Most of the religious matters sent to the rabbinical authorities concerned questions of

personal status, such as whether a kiddushin was valid, whether a bill of divorce

should be written, or whether a child was a mamzer. While the procedural

subservience of the rabbinical authorities to lay leaders is present in these cases, the

balance of authority was weighted towards the superior halakhic expertise of the

Ḥakham and the Bet Din. Whereas civil cases are almost exclusively documented in

the Livros, religious matters appear in both the Livros and the Mahamad’s minutes.

Even in this area there were nuances because the financial problems arising from

questions of personal status, e.g., a wife’s maintenance following marital breakdown,

were treated as akin to civil matters that could be resolved by the Tribunal, and

hence are generally recorded in the Livros rather than the Mahamad minutes.47 In

contrast, any halakhic change in personal status was a matter to be resolved by the

executive authority of the Mahamad in conjunction with the rabbinical authorities.

Consequently, the Mahamad usually documented the latter in their minutes and not

in the Livros.48

The boundaries between the lay and rabbinical authorities regarding matters of

personal status were complicated by the fact that disciplinary power was vested in

the Mahamad alone. However, by the 1790s, it had become commonplace for the

Mahamad to request a formal halakhic ruling from the Bet Din before taking

disciplinary action, particularly in disputes about the validity of a kiddushin.49 The

kiddushin between David de Moseh Torres and Rachel Seixas exemplifies these

broad trends of documenting a personal status dispute in the Mahamad minutes, and

of referring the question of the validity of the kiddushin to the Bet Din before taking

disciplinary action against the couple. Rachel, the daughter of the widow Ribca

Brandon Seixas, had married without her mother’s consent and, rather than seeking

47 See Chapter V, section 3.3 and 4. 48 For example, LMA/4521/A/01/02/002, Orders and Resolutions of the Mahamad, 17 Sivan 5545/26

May 1785, pp. 264, 266 which documents the Bet Din’s ruling that a kiddushin between an uncle, Mordecai Rodrigues, and his niece, Abigail de Isaac Rodrigues, was valid. 49 LMA/4521/A/01/03/003, Minutes of the Mahamad, Daniel Rodrigues v Ester de [] Costa, 11 Sivan

5526/[19 May 1766] and Abraham Massias v Aron Levy, 13 Iyar 5543/[13 July 1783]. cf.

LMA/4521/A/01/03/004, Minutes of the Mahamad, 5 Av 5552/24 July 1792, complaint of Hananel

Mendes da Costa against Dr Solomon de Leon for contracting kiddushin with his daughter Rachel

without his consent, which was referred to the Bet Din; LMA/4521/A/01/03/005, Minutes of the

Mahamad, Jacob de Mar and Mazeltob Levy 27 Adar 5556/8 March 1796.

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to impugn the validity of the kiddushin, her mother requested that the couple be

disciplined under the provisions of the clandestine marriage Ascama 30. Instead, the

Mahamad remitted the case to the Bet Din to establish whether the kiddushin was

valid, and only took disciplinary action after the Bet Din confirmed that the

kiddushin was valid ‘for all time’.50 Unusually, the disciplinary hearing is

documented in question-and-answer deposition format in the Mahamad minutes.

Since the couple insisted that they wished to be married and would not divorce, and

Rachel’s mother refused to drop her complaint, the Mahamad had no alternative but

to find that the couple had infringed Ascama 30. Their punishment was to be denied

any financial assistance from the community.51 Six months later, Rachel’s mother

wrote to the Mahamad to request that they lift their punishment. The Mahamad

obliged, but the financial consequences to the couple’s defiance of marriage norms

lingered in the Mahamad’s refusal to permit Rebecca a dowry from the community’s

fund.52

By the late eighteenth century, the Bet Din had become more proactive in making

recommendations to the Mahamad to improve marriage procedures to prevent errors

occurring. In 1796, Jacob del Mar came to the Mahamad seeking a ruling from the

Bet Din as to whether the kiddushin he had given to Mazeltob Levy and the ketubah

he had signed were valid. The Bet Din ruled that the ketubah was erroneous and of

no legal effect, and went on to recommend to the Mahamad that they change their

procedures instructing hazanim (cantors) and rubisim (teachers) to prepare a

ketubah. Henceforth, all ketubot had to be approved by the Bet Din before being

signed by witnesses.53

As we saw in Chapter V, while the Mahamad may have set general policy regarding

divorce, e.g., that multiple, successive divorces and remarriages would not be

tolerated, it consistently referred applications for a divorce to the Bet Din before a

formal bill of divorce could be written.54 Such cases should not be confused with the

many instances of quarrels between spouses, as well as applications for maintenance,

50 LMA/4521/A/01/03/004, Minutes of the Mahamad, 13 Elul 5551/12 September 1791, 152-155; For

the ‘deposition’ text see LMA/4521/A/01/03/003, Minutes of the Mahamad, 28 Elul 5551/ 27

September 1791. 51 Ibid. 52 LMA/4521/A/01/03/003 Minutes of the Mahamad, 6 Nisan 5552/29 March 1792. 53 LMA/4521/A/01/03/005, Minutes of the Mahamad, 27 Adar 5556/8 March 1796. 54 See Chapter V, section 4.

215

when one of the spouses requested a divorce. As we saw in Chapter V, these cases

were heard in the Tribunal, who attempted to mediate between the parties rather than

acceding to a request to divorce.55 The nature of the Bet Din’s deliberations on

divorce applications are undocumented, but a few references to divorce in other

archival sources provide intriguing insights into divorce hearings. We know that, at a

hearing in 1760, the Bet Din gave spouses the opportunity to give their separate

reasons why they both wanted to divorce, and that, when the Bet Din ruled that there

were sufficient reasons to divorce, the Mahamad formally consented to a get being

given ‘according to our Holy Law.’56 The Bet Din upheld the halakhic requirement

for a husband to divorce an adulterous wife as well as to divorce a moredet (a

rebellious wife), but we do not know how adultery was proved, nor the reasons why

a wife was deemed rebellious.57 In contrast, when a wife requested to divorce, the

Bet Din ruled that they had examined the disputes between the spouses, but did not

find ‘any criminal cause that obliged to give Guet according to our holy law’.58

Since the facts are not stated, it is difficult to assess whether this decision reflected a

bias against wives who sought a divorce, or the general preference for separation

rather than divorce as a remedy for marital breakdown. By the turn of the nineteenth

century, the Bet Din had to confront the growing phenomenon of husbands deserting

their wives.59 When Esther Espinoza complained to the Tribunal that her husband

Jacob had deserted her, the Tribunal gave her licence to pursue him in the courts.

Three months later, the Bet Din provided the Mahamad with an opinion letter, which

stated that it had examined the dispute between the spouses and that ‘seeing that

there are no ways, and manner to reconcile the parties so that they will live as

husband and wife as our Holy law teaches us, to prevent any further sin, we think it

right that they separate by Guet, that both parties consent to it and desire it’.60 By

55 See Chapter V, section 3.3, 4. 56 LMA/4521/A/01/03/003, Minutes of the Mahamad, Jacob Nunes Cardozo v his wife Raquel Nunes

Cardozo, 30 Menahem 5520/12 August 1760. 57 Adultery: LMA/4521/A/01/02/002, Orders and Resolutions of the Mahamad, 11 Sivan 5543/11

June 1783, p. 209, David Baruh and his wife; Rebellious wife: LMA/4521/A/01/03/005, Minutes of

the Mahamad, 27 Sivan 5558/11 June 1798, pp. 192-193, Mr Bassan and his wife. On the rebellious wife in halakhic sources, see Epstein, Jewish Marriage Contract, 145-148. 58 LMA/4521/A/01/02/002, Orders and Resolutions of the Mahamad, 2 Hesvan 5546/6 October 1785,

p. 281: Moseh Hs Cardozo and his wife. 59 Hyamson, Sephardim, 253-254. 60 LMA/4521/A/01/21/004, Esther wife of Jacob Espinoza v her husband, 27 Elul 5561/3 September

1801. and LMA/4521/A/01/03/005, Minutes of the Mahamad, Jacob de Nathan Espinoza v Ester de

Abraham Mendes, 26 Tebet 5562/31 December 1801.

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1820, the rabbinical authorities’ supremacy in handling divorce cases was clear.

When a wife approached the Tribunal to request a divorce, it responded that they

‘considered [this] as a subject belonging to the Haham.’61 None of these cases

contain details that suggest that husbands were obstructive in giving their wives a

divorce.

The Bet Din’s halakhic expertise meant that it was the venue for deciding other

issues of personal status, e.g., whether marriage was forbidden to a mamzer, a child

born from an illegitimate union according to halakhah. These cases, all documented

in the Mahamad minutes, are exceptionally rare and are very different to the Livros

disputes in which the father of a child denied paternity to resile from his financial

responsibilities to support mother and child.62 In 1792, the Bet Din ruled that a child

born of an adulterous union was ‘vaday mamzer’ (a certain mamzer) and

recommended that a book be kept recording the names of anyone with that status.63

Four years later, the Bet Din went to some lengths to avoid a ruling of mamzerut,

when they had to determine the personal status of Abraham Romano, who had

applied to the Mahamad to be married. Judith, Abraham’s mother, declared at the

Bet Din that Abraham was not the son of her husband Menahem Romano, who had

been lost at sea in a shipwreck. Rather, he was the son of Samuel Anigar, and had

been conceived after Menahem’s death. Since neither Judith nor Samuel could

definitively swear that they had seen Menachem’s dead body, the possibility could

not be ruled out that Menahem was still alive, and that Abraham had been conceived

from an adulterous relationship. In the event, the Bet Din accepted evidence from a

Jewish witness to the shipwreck, who swore that he had seen Menahem’s body on

the shore. Accordingly, the Bet Din ruled that Abraham was ‘worthy of

incorporation’ in any Jewish community and free to marry any Israelite woman,

apart from someone from Samuel Anigar’s family.64

61 LMA/4521/A/01/21/005, Sarah, wife of Samuel de Gabriel Costa v her husband, 27 Iyar 5580/11

May 1820. 62 See Chapter V, section 2.3. 63 LMA/4521/A/01/03/004, Minutes of the Mahamad, 18 Elul 5552/3 September 1792, pp. 212-213.

On the classical sources’ differing approaches concerning investigation of the status of a suspected

mamzer, see Laliv Clenman, "“Is She Forbidden or Permitted?” (bSanhedrin 82a): A Legal Study of

Intermarriage in Classical Jewish Sources" (PhD diss., University of Toronto (Canada), 2009), 101-

114. 64 LMA/4521/A/01/03/005 Minutes of the Mahamad, 26 Tamuz 5557/20 July 1797, pp. 147-148.

217

4 Rabbinical personnel as litigants

The fact that the rabbinical authorities were salaried personnel of the congregation did

not mean that, in their personal capacity, they were exempt from being summoned as

defendants to the Tribunal in relation to civil disputes, nor did their communal duties

bar them from using the Tribunal as plaintiffs. In the period 1772 to 1868, the Livros

record 39 cases in which a plaintiff or defendant was either identified as holding a

rabbinical post in the congregation, or was a visiting religious emissary, or a rabbi or

teacher living in London. As individual litigants, these rabbinical personnel were

treated similarly to ordinary congregants, with little obvious bias in their favour

against the interests of their opposing party.

As plaintiffs, rabbinical personnel sought and were given permission to sue in civil

courts when necessary. In 1785, the emissary from Jerusalem, Raphael Joseph Ben

Ruby, was given permission to sue one of the congregants, Samuel Lopes Jesurun, to

recover a debt. In 1793 Rabbi Hasday Almosnino, acting on behalf of his widowed

sister, notified the Tribunal that he thought legal action might be necessary to recover

under loan Notes, but when the defaulting debtor indicated that he could not presently

pay the debt, the Tribunal recommended that he do his best to repay, rather than giving

Almosnino permission to sue him.65 Like ordinary congregants, rabbinical personnel

also issued small debt claims in the City Court of Requests; two of the Bet Din judges

in the Lindo case, Rabbis Hasday Almosnino and Isaac Delgado, issued proceedings

there, Almosnino against a non-Jew and Delgado against an Ashkenazi Jew.66

Almosnino frequently appears in the Tribunal as both plaintiff and defendant because,

as well as serving as a judge in the Bet Din, he ran a commercial business. He was

also involved in several inheritance matters, possibly as executor, as he is mentioned

in relation to the administration of estates in the ecclesiastical courts.67 His litigation

65 LMA/4521/A/01/21/003, HHR Raphael Joseph Ben Ruby, Saliah de Terra v Samuel Lopes Jesurun,

28 Sivan 5545/8 June 1785 and Ros Hodes Tamuz 5545/8 June 1785; Hasday Almosnino on behalf of

his sister Rachel Benzaquen v D. Benjamin 28 Tamuz 5553/8 July 1793. 66 CLA/038/03/011 Hasday Almosnino and Susan Ryan, 2 May 1789; CLA/038/03/005 Solomon Levy

and Isaac Delgado, 31 May 1783. Summons Books first list the debtor’s name. 67 LMA/4521/A/02/21/004, Joseph Sambel v R. Hasday Almosnino, 27 Hesvan 5558/16 November

1797 and 6 Tebet 5558/25 December 1797; [E]lisa alias Abr Cohen v Ribi Hasday Almosnino, 25

218

history before the Tribunal also indicates that he was not averse to taking civil legal

proceedings in urgent cases. In this case, the Tribunal summoned Almosnino for

allegedly breaching the Disputes Ascama by failing to obtain prior permission to sue,

but, being satisfied of the urgency of the case, did not discipline him.68

As debtors, these rabbinical personnel invariably settled their creditors’ claims by

agreeing repayment terms, a trend which may have reflected a reluctance on the part

of the congregant creditor to ask for, or the Tribunal to grant, permission to sue one

of its religious personnel to recover a debt. The most poignant example is the case

of Hazan Daniel Cohen de Azevedo, who was summoned to the Tribunal about an

outstanding debt of £36.18.1. He confessed that, despite his efforts to economise, the

inevitable expenses of maintaining his family exceeded his income from the

congregation and he did not have the means to pay the debt. The matter was settled

at the Tribunal with an agreed repayment schedule of an initial £12 and then £6 per

quarter until the debt was extinguished.69 Two cases also indicate that rabbinical

personnel were willing to use arbitrators or assessors to settle disputes.70

5 Conflicts of interest and the Bet Din

The history of Rabbi Hasday Almosnino’s dealings with the Tribunal indicates that

the London community did not expect its rabbinical judges exclusively to devote

themselves to their judicial role in the Bet Din, which meant that their non-judicial

interests were a potential site of conflict with their judicial duties. For a judge to

have outside interests was permitted in halakhah, which emphasised actual rather

than perceived bias, and placed moral responsibility on the judge to recuse himself,

but his failure to do so before a hearing did not render correct judgments invalid.71

Elul 5558/6 September 1798. On the wealthy Moroccan Joseph Sambal’s stay in London, see Daniel

J. Schroeter, The Sultan's Jew (Stanford: Stanford University Press, 2002), 57-59. 68 LMA/4521/A/01/21/004 The Mahamad v R. Hasday Almosnino, 28 Tamuz 5558/12 July 1798 69 LMA/4521/A/01/21/004, Naphtalie Paz de Leon v Hazan Daniel Cohen de Azevedo, 29 Sebat

5562/1 February 1802. 70 LMA/4521/A/01/21/003, Riby Netto v Sr. Dal de Sel de Castro, 17 Sevan 5546/13 June 1786; R

Hasday Almosnino for his sister Rachel Benzaquen v Mordecai Tedesco, 6 Nisan 5553/18 March

1793. 71 Shlomo Pill, "Recovering Judicial Integrity: Toward a Duty-Focused Disqualification Jurisprudence

Based on Jewish Law Note", Fordham Urb. L.J. 39 (2011), 511-576: 535-546.

219

The potential to exploit a judge’s apparent conflicts of interest was graphically

illustrated in the Lindo case. Belisario knew that Rabbi Hasday Almosnino ran an

import/export business with Gibraltar and had a business relationship with Moses

Lindo, Esther’s brother. Belisario attempted to undermine Rabbi Almosnino’s

character and impugn his impartiality by interrogating him about his commercial

interests, asking him whether, if a Bet Din member ‘transact[ed] any commercial

affairs of any kind; are they not incapacitated from holding such Ecclesiastical

situation if they transact business as a merchant or any thing foreign to Ecclesiastical

affairs’. While Rabbi Almosnino admitted that he had traded with Moses Lindo, he

deposed that there was no bar to Bet Din members trading commercially.72 Belisario

also alleged Moses Lindo had bribed the second permanent member of the Bet Din,

Rabbi David Henriques Julian, with a promise to make him the ‘High Priest’ (that is,

the Ḥakham) if he would annul the kiddushin, an accusation which David Henriques

Julian denied.73

Belisario also alleged that the entire Bet Din was implicated in an attempt by the

Lindo family to ‘fix’ the evidence at the Bet Din hearings by deceiving one of the

witnesses to the kiddushin as to the identity of his bride. This was achieved,

according to Belisario, by holding the Bet Din hearings in candlelight and dressing

Esther and her sister Abigail, who accompanied Esther to the hearings, identically.

This was the reason, Belisario alleged, why one of the witnesses misidentified

Abigail, rather than Esther, as Aaron’s bride.74 Interestingly, Belisario did not allege

a second potential procedural irregularity concerning Moses Lindo’s consultation

with Rabbi Almosnino about Esther Lindo obtaining a divorce, prior to the Bet Din

hearings taking place.75 From a halakhic perspective, ruling on a case about which a

judge had prior knowledge was dubious, since the halakhic ideal was to hear the

72 LPL, Arches D 146, microfiche 752-53, fols.783, 785. Almosnino Answers to Interrogatories. 73 LPL, Arches D 146, microfiche 751-52, fol. 766v, Answer to interrogatory 21 in Deposition of David Henriques Julian. 74 LPL Arches D 146, microfiche 750, fol. 702r-v, Interrogatories of Aaron Mendes Belisario,

paragraph 15. 75 LPL Arches D 146, microfiche 752-53, 796v-798r. Deposition of Hasday Almosnino. Rabbi

Solomon Mordecai Ish Yemini, one of Belisario’s expert witnesses, continued to argue that holding

the hearings at night was not permitted according to halakhah: see his letter to the Bet Din copied at

LM/4521/A/01/02/004, Minutes of the Elders 1784 to 1795, p. 347.

220

facts of a case for the first time in the proceedings themselves, at which both sides

presented opposing narratives.76

There being no oral examination of witnesses in ecclesiastical courts, it was left to

the Consistory Court to decide on the written deposition evidence alone whether

Belisario’s allegations were well-founded. Sir William Scott rejected Belisario’s

attack on the Bet Din’s credibility and impartiality, remarking that ‘[s]ome

observations have been made upon the character of those persons [i.e., the Bet Din

judges], but without apparent foundation; and I am inclined to treat them with the

respect due to their situations.’77 However, the allegations themselves confirm that

the close, interconnected relationships between some Bet Din judges, lay leaders and

congregants had the potential to create conflicts of interest. In such circumstances,

independent, unbiased rulings depended on the personal integrity of individual

judges to recuse themselves from hearing a particular matter.

Impartial judicial decision-making was also dependent on the ability of the

rabbinical authorities to exercise discretion and neutrality in their day-to-day

dealings with congregants and the lay leadership. As Barnett has documented,

Ḥakham Raphael Meldola’s sometimes irascible and bad-tempered relations with

some congregants upset the finely balanced spheres of lay and rabbinical authority.

The fractious relationship between Jacob Bibas and Ḥakham Raphael Meldola was

influenced by the Ḥakham’s refusal to permit Jacob Bibas’s patron, Moses Lara, to

marry until the Bet Din had decided the legal status of Lara’s long-standing liaison

with Isabella Solomons.78 This led to a verbal altercation in the synagogue that

spilled into the Ḥakham’s role as the head of the Bet Din concerning Jacob Bibas’s

financial dispute with his brother Judah Bibas, which the Tribunal had recommended

should be sent to the Ḥakham for a din torah. Although Judah Bibas favoured a din

torah, his brother Jacob was not inclined to accept a court that included the Ḥakham.

In a letter to the Ḥakham dated 4 February 1813, Jacob Bibas wrote about his esteem

for the din torah procedure, even lamenting that ‘Din Torah is not acknowledged as

the law of the land and that…a sentence given in the spirit of its holy tenor would

not be valid in this country and as such could not be enforced, hence the Jews

76 Pill, "Recovering Judicial Integrity", 546. 77 Lindo v Belisario, 161 Eng. Rep. 530 at 553-554. 78 Richard D. Barnett, "Haham Meldola and Hazan De Sola", Transactions (Jewish Historical Society

of England) 21 (1962), 1-38: 4-5.

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unhappily are forced to have recourse to the law of the country in all their civil

controversies’. But he was concerned at the expense and delay of a din torah,

particularly because, as he alleged, his brother’s actions had left him destitute. In a

second letter, Jacob Bibas wrote that he knew that no complainant could be forced

into a din torah, ‘and particularly so when there shall be well founded reason to

doubt the impartiality of the presiding judge.’ The terms in which Jacob expressed

his disinclination to submit to a din torah incensed the Ḥakham, who warned Jacob

that, if he did not cooperate by presenting his case at the Bet Din, he would be

declared in contempt. The Mahamad did not consider it politic for the Ḥakham to

insist on serving as a judge, since the case was pecuniary in nature and did not raise a

religious issue. Accordingly, they warned the Ḥakham that his approach might lead

to civil litigation, which the Mahamad would not fund. Eventually, the Ḥakham was

persuaded to withdraw his threats after Jacob Bibas apologised for his insulting

behaviour, for which he was fined £10 by the Mahamad. Unfortunately, if a record

was made of the arbitration, it has not survived.79

Ḥakham Meldola’s worsening relations with Moses Lara during 1819 led to a far

more serious clash of authority between the Ḥakham and the Mahamad. The catalyst

was a dispute between Lara and Meldola’s sons, who had traded insults in the

synagogue. When Lara made a formal complaint against the Ḥakham, the Mahamad

proposed that they arbitrate the issue of offence to the congregation and to Lara.

However, the Ḥakham objected to being answerable to the ‘Tribunal’ in relation to

allegations made by individuals because, as a rabbi, ‘according to Din’ he was

entitled to be judged by his peers, a statement which the Bet Din confirmed was

correct.80 While the Mahamad could, and did, discipline Meldola’s sons by fining

them £10 each, it merely verbally censured the Ḥakham for his disrespectful conduct

towards the Mahamad. Lara instructed solicitors, and when he threatened to sue the

Ḥakham in the civil courts, the Ḥakham finally agreed that the Mahamad should

‘reconcile, and settle, the unpleasant affair’ in an arbitration, where the dispute

79 LMA/4521/A/01/03/007, Minutes of the Mahamad, 8 Adar 1813/8 February 1813-8 Nisann 5573/8

April 1813, 67-80. 80 LMA/4521/A/01/03/008, Minutes of the Mahamad, 6 Tamuz 5579/29 June 1819, 40-42. The

incident is recounted in Barnett, "Haham Meldola", 5; Hyamson, Sephardim, 228-230.

222

settled after the Ḥakham consented to apologise to Lara via two of the members of

the Mahamad.81

These disputes demonstrate how difficult it was to maintain strictly defined

boundaries between lay and rabbinical authority, and challenge whether the Bet Din

was always capable of providing the community with independent, impartial rulings.

After Ḥakham Meldola’s death in 1828, the standing of the rabbinical authorities

was considerably diminished, since no Ḥakham was appointed until 1866, when an

Italian rabbi, Reverend Professor Benjamin Artom, was appointed to the position.

Meldola’s son, David, served as the head of the Bet Din after his father’s death but,

for many years, only he and Abraham Haliva served as its permanent members. It

was during this period that the community faced its most important crisis of the

nineteenth century, the so-called ‘great secession’ when leading members of the

Sephardi community, together with leading members of the Ashkenazi community,

established the West London Synagogue of British Jews in Burton Street, which

eventually led to the foundation of reform Judaism in England.82 The important

rabbinical rulings in this period were made by a Sephardi Bet Din with a co-opted

member, Abraham Belais, who had been appointed as a teacher in the Sephardi

school, shortly after his arrival in London in 1840.83 Thus, it was this Bet Din which

drew up the crucial rabbinical rulings that the community required in its moment of

crisis, including imposing the ḥerem on the seceders in 1842.84 During the next

seven years, the laity and rabbinical authorities clashed several times on the question

whether the ḥerem ought to be lifted. In 1849, writes Hyamson, ‘there [was] reason

to believe’ that Rabbi David Meldola, as head of the Bet Din, ‘was made to

understand that a way had to be found’ to overcome the impasse, which was

eventually achieved when the seceders formally apologised for breaching Ascama 1

by establishing and worshipping in an unauthorised synagogue.85

81 LMA/4521/A/01/03/008, Minutes of the Mahamad, 21 Hesvan 5580/9 November 1819, 84-88. Space does not permit elaboration of the social dynamics between the Bet Din, the Mahamad and

Elders and congregants, nor other halakhic issues on which the Bet Din was asked to advise, notably

the establishment of the West London Synagogue, and several contentious ritual matters. 82 Hyamson, Sephardim, 269-295; Epstein, "Story of Ascama 1". 83 "Story of Ascama 1", 170. 84 Hyamson, Sephardim, 285, 289. 85 Ibid., 293.

223

In 1849, a resolution calling for the recruitment of new dayyanim from abroad to

replace the two serving permanent dayyanim was defeated, but it was now out in the

open that David Meldola, because he was infirm, and Abraham Haliva, because he

did not speak English, were not regarded by some members of the congregation as

‘men that can command respect’.86 In the event, both serving dayyanim died shortly

after one another in 1853, and a young, highly talented Ashkenazi rabbinical student,

Barnett Abrahams was appointed and served as the single dayyan of the community,

until his early death in 1863 precipitated the search for a new Ḥakham.87 With

Artom’s appointment in 1866, respect for the Ḥakham and a newly constituted three-

man Bet Din, was restored. The marked change in the Mahamad minutes that reflect

an altogether more formal, professional relationship between lay and rabbinical

authorities during Barnett Abraham’s tenure as the single dayyan continued after

Artom’s appointment as the new Ḥakham.

It is impossible to say how these turbulent years for the congregation and the

rabbinical authorities may have impacted the Mahamad’s appetite to serve as lay

judges hearing civil disputes. All we do know is that these years overlapped with the

final Livro of 1837 to 1868. If documentation can provide us with a clue as to the

Mahamad’s motivation to take seriously its civil judicial role in the Tribunal, then

this final Livro suggests that there had been a profound change in attitude towards

maintaining the vision of lay civil justice expressed in the Ascamot. These were the

years in which the Livros were at their most scrappy and incomplete, with little

effort properly (if briefly) to document disputes. The question I discuss in the final

chapter is whether we can account for the demise of the Livros based on the

documentation alone, or whether there were also external dynamics at play. This is

the question of acculturation to English legal norms that I raised in Chapters IV and

V, that can now be contextualised in relation to the broad, internal historical picture

of the congregation’s judicial framework and profound changes to the English legal

system.

86 LMA/4521/A/01/04/008, Minutes of the Elders, from 7 Iyar 5609/[29 April 1849] to 12 Iyar

5609/[4 May 1849]. 87 Hyamson, Sephardim, 304-305, 340.

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VII. CONCLUSION

This thesis began by asking how it was possible that the London Sephardi

community managed to establish and maintain a Jewish judicial space to hear civil

and religious matters for nearly one hundred and fifty years, despite the failure of

Menasseh ben Israel’s 1655 petition to Oliver Cromwell requesting the state’s formal

consent to judicial autonomy as the legal basis for readmission of the Jews to

England. Understanding the discordancy between this denial of judicial autonomy

and the existence of a vibrant justice system documented in the Livros required a

multifaceted approach that has taken this research in several directions: to the

halakhic underpinnings of lay justice; to the transnational legal culture of the

Western-Iberian Jews forged in Venice and Amsterdam; to the evolving attitudes of

early modern English courts that resulted from their encounter with real rather than

mythical Jews; to the world of the eighteenth century Sephardi litigants who sought a

remedy for their debt and marital disputes in the Jewish judicial space or before the

English courts; to the beginnings of the Portuguese Bet Din and the continuing story

of its complex relationship with lay authority.

These research directions reflect that the Tribunal was subject to internal influences

from Jewish legal culture, as well as external challenges arising from the specific

English legal matrix in which it operated. Applying the notion of legal pluralism as

developed by John Griffiths and other legal theorists as a methodological tool, it has

been possible to address the outward facing issue about the nature of the relationship

between the London community’s Jewish judicial space and the English courts, as

well as the inward facing issue of how that space accommodated and adapted itself

to the English legal system.1

The discovery of the Livros has provided a fresh understanding of the nature of the

London community’s Jewish judicial space. While rabbinical authorities were

tasked with providing halakhic rulings on religious matters, the community’s lay

leaders had primary responsibility for articulating the vision for community-based

Jewish justice. They were also directly responsible for the administration of a lay-led

Tribunal that heard a wide variety of civil disputes between congregants. This lay

1 Supra pp. 22-24; 99-101.

225

justice model for civil disputes gave practical expression to the fundamental halakhic

principle of ῾arka’ot shel goyim, the prohibition against Jews litigating their disputes

with fellow Jews in non-Jewish courts. The Tribunal fell squarely within ancient

Jewish paradigms for the resolution of civil disputes by lay judges that were rooted

in talmudic sources which established the parameters of the prohibition. These

talmudic sources privileged the idea of dispute resolution by Jewish judges, rather

than dispute resolution in non-Jewish courts according to Jewish law, even to the

extent of permitting judicial decision-making by non-expert, lay judges. By the

medieval period, it was accepted that the ‘good men of the town’, the powerful lay

leaders of the Kahal, had authority to decide some civil matters, in particular issues

of indebtedness. Lay-led civil justice served as a bulwark against Jews choosing to

submit their disputes to non-Jewish courts because of a lack of halakhically qualified

Jewish judges. Given this halakhic framework, the Tribunal’s role at the heart of the

London community’s Jewish judicial space is unremarkable.

Jewish lay and rabbinic judges faced several challenges when seeking to preserve the

principle of ῾arka’ot shel goyim. Halakhic solutions developed to meet two

important concerns. The problem of the recalcitrant defendant, who refused to

submit to Jewish legal jurisdiction, was addressed by granting the plaintiff

permission to sue in civil courts. The second problem arose because state authorities

were the ultimate source of enforcement power and were often unwilling to cede

coercive authority to Jewish judicial authorities. To meet this problem, the halakhic

framework recognised excommunication as an important weapon in the judicial

armoury because of its potential to exclude miscreants from spiritual and temporal

connection to the Jewish community. Among the Portuguese Jews of Amsterdam

and London, excommunication would eventually be desacralized and replaced by

exclusion from synagogal and burial rights, as well as by punishment through fines.

The inherent flexibility of the halakhic framework that allowed for adaptations to

external challenges contributed towards the London community’s ability to find

creative adjustments to its justice model. But rather than inventing new solutions, the

London community instead imported the transnational legal culture of the Western-

Iberian Sephardim that was forged in the cities of Venice and Amsterdam. Although

there were significant differences to the constitution of Jewish self-government in

these cities, both cities’ legal culture favoured arbitration as a first step towards

226

resolving legal disputes. In Italy, arbitration had been elevated to a compulsory

process, while in Amsterdam arbitration was encouraged by procedures that

facilitated enforcement of arbitration rulings by Dutch courts. The international

trading merchants who founded and governed the Portuguese Jewish community of

Amsterdam saw litigation as a means of last resort, preferring consensual dispute

resolution for legal disputes. Consequently, they readily adopted mediation and

arbitration as the community’s internal mechanism for resolving disputes. Like lay

justice, these methods were also rooted in the halakhic framework, this time in the

halakhic concept of pesharah, compromise, that encouraged litigants consensually to

resolve disputes, rather than insisting on judges deciding cases according to strict

halakhic principles. Internal procedures that aided consensual dispute resolution

became one of the markers of Western-Iberian transnational legal culture, with

mediation and arbitration central to the judicial decision-making process. A second

marker was to reflect the halakhic distinction between matters of mamona and

issura, broadly equating to civil and religious disputes respectively, by splitting

judicial authority between lay and rabbinical judges. To prevent recourse to non-

Jewish courts, a third marker was a permission requirement whereby the Mahamad

granted permission to sue in non-Jewish courts only after congregants had first

attempted to mediate or arbitrate internally, except for a narrow category of urgent

cases where delay prejudiced commercial interests. A fourth marker was a

willingness to desacralize excommunication as a coercive tool in response to

external concerns from state authorities about Jewish justice overreaching itself.

Transplanting this transnational legal culture into England was not straightforward,

as Menasseh ben Israel discovered. His 1655 plea for judicial autonomy envisaged

that, as in Venice, Jews would be granted a form of judicial autonomy by a formal

charter of privilege. The plea’s reference to an appeal to civil courts, secured by a

financial penalty, also echoed the condemnation procedure for enforcing arbitration

awards, utilised by Dutch self-ruled churches, as well as Amsterdam’s Portuguese

Jewish community. The Whitehall sub-committee’s insistence that the Jews be

denied their own public courts firmly signalled that a space for Jewish justice lay in

the private realm only, where England recognised that all citizens were entitled to

resolve disputes by arbitrement. As the London community would discover, this

meant that there was no state recognition for the Tribunal’s informal dispute

227

mediation and arbitration processes. At the same time, evoking the law of alien

status, individual Jews were to be treated as strangers, which theoretically implied

that they could access the king’s courts to litigate their legal disputes. The

formidable barrier of Lord Coke’s 1608 dictum in Calvin’s Case that Jews were

perpetual aliens forever denied any right of access to the king’s courts was quickly

disregarded, once real rather than mythical Jews began to appear in English courts

after resettlement. By the 1680s, Jews had unrestricted access to the English civil

courts, and during the eighteenth century the English ecclesiastical courts asserted

jurisdiction over disputes between Jews about marriage and divorce that had been

submitted to them.

The Tribunal creatively adopted existing halakhic solutions to address the problem

of open access to justice. The community’s voluntaristic status meant that coercive

state authority was unavailable to aid enforcement of internal judicial rulings.

Submission to the Jewish judicial space and compliance with its rulings was instead

(per Robert Cover) dependent upon the strength of the interpretative commitments of

individual congregants to a vision of Jewish justice.2 That vision was articulated in

the governing Ascamot and evolved over time to assert jurisdiction over all types of

disputes between congregants. Its early seventeenth-century iteration promoted the

prohibition against litigating in non-Jewish courts as an internal religious value, but

by the late eighteenth century it had been replaced by an externally facing concern to

maintain the reputation of the community in the eyes of wider society. By the mid-

nineteenth century, even that concern had disappeared, to make it obvious that the

Jewish judicial space was regarded as a private realm for the resolution of disputes

among congregants.

On a practical level, the Tribunal’s primary method of controlling access to English

courts was a permission gateway that reflected both halakhic and transnational

solutions to oversee how and when congregants sought non-Jewish justice. Focusing

on debt collection, the most common type of civil dispute documented in the Livros,

it was apparent that the Tribunal sought to act in a manner that prevented a plaintiff

being denied justice. Accordingly, if mediation or arbitration was unsuccessful

before the Tribunal, or defendants refused to submit to its jurisdiction after being

2 Supra pp. 23-24.

228

twice summoned by a plaintiff, the Tribunal gave plaintiffs permission to sue in the

non-Jewish courts. The Tribunal’s effectiveness in maintaining authority over debt

disputes was significantly challenged by the existence of a local venue for small debt

collection, the City of London Court of Requests. The Tribunal knew that its rulings

were unenforceable in local courts, and that submission to its jurisdiction was

voluntary. The Tribunal developed an effective, practical procedural response to

these realities using its permission gateway as a means of co-opting state

enforcement powers, where necessary, to prevent a plaintiff being denied justice.

Adaptation to the local legal environment was a strength rather than a weakness and

demonstrated the robust flexibility of the halakhic framework to coexist

pluralistically alongside non-Jewish legal systems.

Process as a gateway to English courts was more problematic in relation to issura

matters over which English and Jewish law claimed exclusive jurisdiction.

Individual congregants were the active agents to disrupt the supposedly hard

boundary between halakhah and English law in relation to marriage and divorce

matters. Although the Villa Real espousal action of 1733 and the D’Aguilar judicial

separation claim of 1794, litigated in the Christian ecclesiastical courts, challenged

the prohibition against suing in non-Jewish courts, neither case initiated (per Gunther

Teubner) a communicative process along the binary legal/illegal about halakhic

principles that confronted this hard boundary.3 Confrontation came in the Lindo case

of 1795 when the Christian court was asked to determine whether a kiddushin was

legally binding. The court accepted that it was required to apply halakhic principles

governing the validity of Jewish marriage rites, and not Christian marriage law. The

ruling recognised a narrow space for legal pluralism to exist for Jewish marriage law,

and by extension the right of batei din to decide disputes arising therefrom. In

arriving at this conclusion, however, the ecclesiastical judges were unable to resist

analogous reasoning to Christian marriage law. In so doing, they acted (per Robert

Cover), jurispathically by suppressing halakhah’s intermediate category of betrothal

as a separate status in Jewish marriage law between the Christian concepts of

engagement and marriage.4 In contrast, the ecclesiastical courts did not encounter

claims by Jews that engaged Jewish laws of divorce, with the consequence that Jews

3 Supra pp. 23. 4 Supra p. 161.

229

were able to continue to divorce according to Jewish rituals, under the radar of and

without any interference from the ecclesiastical courts.

This pluralistic framework was radically altered, not by legal judgments, but by a

series of nineteenth century legislative developments. In 1836, civil marriage became

possible for all citizens, which enabled couples to marry outside of religious

auspices. Sephardi Jews now had a civil law route to circumvent parental and

communal controls over marriages. While only small numbers of Sephardi Jews

chose to marry before civil registrars, the effect of the 1836 marriage registration

scheme was to ensure that couples who celebrated a Jewish religious marriage under

the auspices of the London community were at the same time civilly married. The

registration regime had an unanticipated consequence for the dissolution of Jewish

marriages in accordance with the halakhic law of divorce. Following the creation of

the Divorce Court in 1857, civil courts and law had exclusive, absolute authority

over the dissolution of marriage. In 1866, the Registrar-General of Marriages pointed

out that a Jewish bill of divorce could not dissolve the civil marriage that had taken

place at the same time as the religious marriage. This led to an order of the Mahamad

that no get was to be written until a decree absolute from the Divorce Court had been

obtained.

By this time, the London community’s Jewish judicial space was in the last stages of

reconfiguring itself as a site for the resolution of religious disputes only before the

Portuguese Bet Din, which after many years was headed by a new Ḥakham,

Benjamin Artom, who had been appointed in 1866. While it is conceivable that

Artom’s appointment may have been the decisive factor in the demise of the Livros

in 1868, a growing disaffection and disillusionment with Sephardi lay civil justice

predates Artom’s arrival. When and why this disaffection set in is difficult to

pinpoint precisely in the absence of explicit explanation by the community’s

leadership, but it is possible to propose a timeline leading up to the demise of the

Livros and to speculate about the likely reasons why lay justice fell out of favour.

Livro 6 indicates that the Tribunal’s attitude towards lay justice altered during the

1830s. On the assumption that the six-year gap between Livros 5 and 6 can be

accounted for by a lost seventh Livro, as opposed to a deliberate decision not to

document disputes during this period, Livro 6 shows significant modifications to

230

how disputes were documented. Formalistic use of the English cause list system and

English legal language points to continued flexibility towards maintaining lay justice

by prudent adaptation to the wider legal environment.5 However, this formalism

masked that the Tribunal no longer aspired to maintain full (though brief), accurate

and legible case notes as an official record available for future consultation. Many

cases are simply recorded as ‘settled’ without explanatory details of the dispute or

settlement terms. Lined spaces for case notes frequently are left blank, missing even

basic information about non-attendance, deferral of cases to the next meeting etc.

These blank entries, together with data detailing non-attendance, confirm higher

rates of non-compliance with summonses to appear before the Tribunal.

Documenting the permission gateway, whereby plaintiffs automatically were given

permission to sue after a defendant twice failed to appear, dramatically declined.6

Livro 6 also hints at changing patterns of usage of the Tribunal among its primary

users, the poor and marginalised in receipt of charitable relief. Up to about 1850, the

pattern of entries per year is not markedly different to that before 1829, fluctuating

between the low 30s and high 80s. By the 1840s, however, even the families of poor

and marginalised congregants gradually abandoned submitting disputes to the

Tribunal, including the petty quarrels alleging verbal abuse and physical violence

that had already supplanted debt collection as the most common type of dispute. By

1852 disputes even among this cohort had dropped precipitously to 19 and reached

single figures or nil by the mid-1860s.7

My research identifies five possible reasons for the declining commitment to the

Sephardi Jewish judicial space among litigants and lay judges alike. The first

concerns changing perceptions of the limits of authoritarian communal governance

among congregants. Whereas in the eighteenth century the Mahamad confidently

asserted and expanded the ambit of their claim to exclusive legal jurisdiction over

congregants’ disputes, by the 1830s the limits of their authority were clear, English

law having even encroached into issura matters of marriage and divorce. Moreover,

there was a subtle shift in the Mahamad’s self-understanding of what it meant to co-

opt state coercive power in the interests of preserving access to justice for Sephardi

5 Supra pp. 97; Appendix 1. 6 Only 67 of 1125 entries explicitly recorded permission. 7 Appendix 1.

231

litigants. Until the early 1820s, the Mahamad had an arms-length relationship with

their litigants and non-Jewish courts, giving individual litigants permission to pursue

legal action. However, rapidly changing social dynamics among its poor users led to

a conflation of its judicial and administrative powers, which exposed the reality that

lay judges were sometimes prosecutor, judge, and jury, for example, actively

assisting wives to secure maintenance from their husbands and even prosecuting

these men for desertion.8 By the 1850s, the Mahamad appreciated that even this

legal activism had its limits, as illustrated by the constraints placed upon its freedom

to pursue its own tenants in communal housing because of the civil legal frameworks

for almshouses.9 Status as a voluntary association was fundamentally incompatible

with a governance framework predicated on absolute authority. That reality had

already been recognised in the context of charitable relief during the late 1830s,

when such relief of the poor was devolved to an independent committee of Elders

which eventually became the community’s independent Board of Guardians.10 This

body later regularly referred cases to the London Jewish Board of Guardians of the

Ashkenazi community that had assumed responsibility for coordinating cross-

communal poor relief among Ashkenazim in 1859.11 Taking these developments into

account, it is unsurprising that the power dynamic between the Mahamad sitting as

lay judges in the Tribunal and their poor litigants altered so dramatically from the

second quarter of the nineteenth century.

Secondly, the changing demographics of London’s nineteenth century Jewish

community challenged the maintenance of communal patterns of belonging to and

identification with the Portuguese Nation. The community’s idea of lay justice,

which combined halakhic and cultural imperatives to avoid litigating in the English

courts, only claimed jurisdiction over the Nation even to the extent of denying claims

of Ashkenazi women who had married Sephardim.12 Indeed, marriage was one of

the means of maintaining communal identity as the Nation connected by familial,

social, and commercial ties and united by shared language and cultural memory. By

the early nineteenth century, it was already apparent that these ties were loosening in

8 Supra pp. 192-193; Hyamson, Sephardim, 254. 9 Supra pp. 122-123. 10 Hyamson, Sephardim, 271. 11 Endelman, Jews of Britain, 89. 12 LMA/4521/A/01/21/002, Judy Crasto Oborio v David De Crasto Oborio her husband, 27 Adar

5533/22 March 1773.

232

various ways. Irrespective of socio-economic background, most Sephardim had

been born in England, spoke English as their first language and had acculturated to

English society. By 1819 community administrative records were maintained in

English and sermons started to be delivered in English from 1830. Intermarriage

with Ashkenazi Jews increased, and congregants like Lindo/Fernandes radically

assimilated. Closer ties with the Ashkenazim were inevitable given that Sephardim

made up only a small proportion of London’s nineteenth century Jewish

population.13 Demographics dictated that Ashkenazi Jews were more frequent

litigants in non-Jewish courts than Sephardim.14 The idea of Sephardi cultural

distinctiveness, as expressed by the Ascamot’s aim of preventing members of the

Nation being rendered odious in public opinion through litigation in the public

courts, no longer made sense in this demographic context. When the Ascamot were

reviewed in 1849, the odiousness justification was omitted from the disputes ascama

in the revised 1850 Ascamot.

Thirdly, from the second quarter of the nineteenth century the Mahamad faced

internal dissention about the concept of a single kahal, united geographically around

Bevis Marks as the sole place of worship and, in addition, yehidim increasingly

refused to serve on the Mahamad or even resigned as members of the congregation.

Fines for non-attendance at meetings became a useful source of revenue. Many of

the wealthy elite who served on the Mahamad no longer lived among the Sephardi

poor, having moved westwards, and were followed in the mid-nineteenth century by

the burgeoning Sephardi middle classes. Serving on the Mahamad, and therefore the

Tribunal as well, necessitated commitment to frequent visits to Bevis Marks where

hearings were still held in the Mahamad’s Chamber. The great secession of 1841

split the leadership of the community, a rupture which took years to overcome. How

these developments may have impacted the day-to-day running of the Tribunal

cannot be discerned from Livro 6, but it is noticeable that case entries had drastically

reduced just a decade after the new West London synagogue was established in

1841.15

13 20,000 Ashkenazim (1830); 2,500 Sephardim (1829). See Endelman, Jews of Britain, 79,81. 14 Most Jewish names in the City Court of Requests records are Ashkenazi. 15 Appendix 1.

233

Fourthly, the status of the community’s rabbinical authorities declined noticeably in

the long period between Ḥakham Meldola’s death in 1828 and the appointment of

Ḥakham Artom in 1868. The patterns of interconnection between the Tribunal and

the Bet Din which remained in place in the absence of a Ḥakham between 1784 and

1804 are strikingly absent in this later period. Although rabbinical staff appeared as

litigants in the Tribunal in the later period, extremely few matters were referred to

the Bet Din. This may have reflected decreasing knowledge of or interest in

halakhic matters, such as evidential vows, among users and lay judges alike. As

mentioned in Chapter VI, the dayyanim were not held in high esteem across the

community and the quality of Sephardi rabbinical personnel was so poor that the

Ashkenazi Barnett Abrahams served as the sole dayyan from 1853 to 1863.16 Livro 6

twice mentions a dispute being referred to the serving Ashkenazi Chief Rabbi, in

1838 to Solomon Hirschell and in 1855 to Dr Nathan Adler and his dayyanim.17

Broadening this analysis beyond the communal framework, the lens of legal

pluralism identifies a crucial fifth and final reason why Jewish civil lay justice was

decisively abandoned. The mid-nineteenth century saw a fundamental realignment in

English legal culture away from informal lay-led civil justice, towards formal

lawyer-led civil justice. Sustained criticism of courts of request from the late

eighteenth century onwards, on the basis that they were arbitrary and unjust, led to a

comprehensive review of their operation and a recommendation that they be

absorbed into district county courts. In 1847, this development led to the transfer of

the City of London Court of Requests’ small debts jurisdiction to the Mayor’s

Court.18 Legal centralism had begun to subvert the toleration of pluralistic legal

frameworks in which civil lay justice had existed.19 District courts were

professionalised by the employment of legally qualified judges, by lawyers

representing the parties, and by judicial rulings that followed the common law. It is

not unreasonable to imagine that, in a changed legal landscape where law was

16 Hyamson, Sephardim, 304-305, 340. 17 LMA/4521/A/01/21/006, [Hazan] Abraham Haliva v Isaac Vintura, 25 Menahem 5598/16 August 1838; Samuel Joseph v Julia de Joseph Belasco, 27/28 Tebet 5615/17 January 1855. 18 Patrick Polden, A History of the County Court, 1846–1971, Cambridge Studies in English Legal

History (Cambridge: Cambridge University Press, 1999). The City of London Court of Requests was

abolished in 1847: see Winder, "Courts of Request", 383. The impact of the reforms is contested: see

Finn, Character of Credit, 237-238; 252-254. cf. Arthurs, Without the Law: Administrative Justice,

38-49. 19 Without the Law: Administrative Justice, 44-47. cf. Finn, Character of Credit, 237-238.

234

perceived as something practised by professional lawyers in formal courts, informal

lay justice fell out of favour even among the poorest congregants, as the increasingly

sparse and perfunctory Livros 6 case notes attest. Moreover, this downgrading of lay

justice mirrored the position that always prevailed in the majority Ashkenazi

community in London that Jewish justice concerned primarily matters of issura

determined by rabbinically staffed batei din.20

This discussion of the possible reasons for weakened commitment to lay civil justice

segues neatly to a major question that has lurked in the background to this thesis,

namely, whether acculturation as an interpretative tool adequately explains how

Jewish judicial spaces developed in different legal environments. Acculturation as an

interpretative tool in historical studies focuses on societal trends towards absorbing

either consciously or unconsciously a host society’s cultural habits, e.g., regarding

dress, language, and education, and it obviously explains some of the underlying

societal dynamics I have identified above.21 As previously mentioned, Kerner

considers that acculturation alone explains why the Tribunal became a mere

duplicate of the court of requests (with some modifications), and he completely

discounts any influence on it from Jewish law or cultural influences.22 Kerner is

obviously correct to discern similarities between the Tribunal and courts of request.

Laymen dispensed informal justice and aimed to achieve a practical, just outcome

for the parties by encouraging settlement through agreed debt repayment schedules.

Lay commissioners in the courts of request applied common sense in accordance

with the principles of equity and good conscience when hearing debt disputes.23

Formal judgments explaining legal reasoning were dispensed with.24 Courts of

request also served a specific local population to whom lay commissioners exhibited

the paternalistic attitudes so frequently attributed to the Mahamad.25 Acculturation

can also explain the synergies between the Tribunal and the local magistrates’ courts,

which heard congregants’ allegations of violence and where they sought solutions

20 Pfeffer, From One End of the Earth. 21 On the difference between acculturation and assimilation and the use of these interpretative tools in

Jewish social history, see the seminal article by Marion Kaplan, "Tradition and Transition: The Acculturation, Assimilation and Integration of Jews in Imperial Germany - a Gender Analysis", Leo

Baeck Institute Year Book 27 (1982), 3-35. On acculturation in an Anglo-Jewish context, see

Endelman, Jews of Georgian England; Broadening Social History; Feldman, Englishmen and Jews. 22 Supra p. 99 n 9. 23 Winder, "Courts of Request", 389; Arthurs, "Without the Law: Courts of Local...Jurisdiction", 131. 24 Without the Law: Administrative Justice, 32. 25 "Without the Law: Courts of Local...Jurisdiction", 136.

235

for their marital difficulties. Magistrates encouraged compromises where possible

and saw conviction as a last resort.26 Even conviction was not inevitable since

justices were entitled to exercise ‘mercy’ to pardon an offender.27 However,

acculturation overlooks that these discretionary impulses echoed aspects of the

talmudic approach whereby litigants sought assistance from Jewish judges to find a

just solution to a dispute.28

The problem with relying solely on acculturation as an interpretative tool is that it

tends, as this discussion demonstrates, to focus on identifying similarities with local

legal culture and to conclude that there were no other explanations that may account

for them. In contrast, the legal pluralism theories deployed in this thesis enrich the

historical narrative by contextualising a Jewish judicial space within the long

halakhic and cultural history of which it is a part, by analysing how it related to its

host legal culture, and by providing a framework for understanding the fluctuating

commitment of the community to maintaining its jurisdictional boundaries. With this

broader perspective, it becomes possible to see the expansion of the Tribunal’s

jurisdiction, from the ‘affairs of business’ of wealthy merchants in 1664 to

‘complaints or disputes’ whether for ‘offences or debts’ by 1785, as a positive

response to the alternative non-Jewish jurisdictions available to congregants, in the

interests of maintaining the Jewish judicial space. From this perspective, the

Tribunal can be contextualised within Jewish legal culture’s preference for the

compromise of disputes, the centrality of justice dispensed by Jewish judges, and

Western-Iberian legal culture’s promotion of community-based, lay-led mediation

and/or arbitration. The congregation’s community-based dispute resolution model

was a Jewish alternative to non-Jewish courts on its own terms. As a result, the

Tribunal was able to provide cheap, flexible and solution driven justice, free from

the jurisdictional limitations of English courts that dictated where disputes should be

litigated. But as legal pluralism theories have highlighted, the Tribunal’s fatal flaw

was that it lacked enforcement power, anchored in the fact that the Jewish

community was never granted formal judicial authority that would have permitted its

courts to seek assistance from state courts to enforce its judicial rulings. Nor did

26 Gray, "Regulation of Violence", 77.; 27 For the idea of ‘mercy’ in relation to criminal justice, see Douglas Hay et al., Albion's Fatal Tree:

Crime and Society in Eighteenth-Century English (London: Allen Lane, 1975), 39. 28 Ben-Menahem, "Postscript", 422.

236

‘embedded justice’ on the Amsterdam model exist whereby the courts could remit

cases to Jewish judges. Legal pluralism theory thus illuminates that it was the

dissimilarities with state legal culture which impacted the Tribunal’s functionality

and effectiveness above everything. However successfully the Tribunal may have

acculturated to English legal norms, it could never compete directly with the courts

in delivering enforceable decisions. That the Tribunal was acutely aware of its lack

of authority vis-à-vis the English courts is obvious from the Livros, which document

several cases where the Tribunal declined hearing a case because the dispute had

already been submitted to a court.29 To remain relevant, the Tribunal had to adapt

existing Jewish legal cultural traditions, such as the permission gateway, to co-opt

state enforcement processes in the interests of justice. The ramifications of a

congregant’s choice to litigate in a non-Jewish court – with or without permission –

can be more fully understood and analysed by applying Cover’s idea that normative

orders are dependent upon the strength or weakness of personal obligation and

commitment to a community’s vision of a Jewish judicial space, rather than simply a

function of acculturation to a host society’s legal norms. In what follows, I will

highlight a few findings from the previous chapters that support this perspective.

Despite the internal and external pressures to which it was subject, the Tribunal

remained operative for nearly one hundred and fifty years. During its heyday in the

late eighteenth and early nineteenth century, it drew from the halakhic framework

and Sephardi transnational legal culture to create a model of Jewish justice that

provided congregants with an alternative to litigation in state courts. That model

reflected the fundamental halakhic distinction between monetary and religious

matters (mamona and issura respectively) and offered congregants a ‘one-stop-shop’

for the resolution of all types of disputes in a Jewish judicial space, split between the

Tribunal hearing civil disputes, and the Bet Din deciding religious matters. As

previously discussed, from the 1820s onwards it is possible to discern a gradual

weakening in the commitment of even the frequent users of the Tribunal, the poor

29 LMA/4531/A/01/21/002: Harby v Mordecay Paz de Leon, 12 Kislev 5535/[15 November 1774];

LMA/4521/A/01/21/003, Abraham Baruh v Ester Lacour, 27 Elul 5550/6 September 1790.

LMA/4521/A/01/21/005: Mordecai Rodrigues v Jeos. M Da Costa, 23 Elul 5568/15 September 1808;

Abraham de Isaac de Abraham Nunes Martines v his wife, 29 Hesvan 5570/8 November 1809; Hana

Davis v Nonah wife of Jacob Mendoza, 27 Tamuz 5579/19 July 1819.

237

and marginalised groups in the community, towards submitting disputes to the

Tribunal.

In its heyday, and even in its declining years, the Tribunal provided several avenues

for the consensual settlement of debt disputes by mediation, arbitration or

adjudication of the most common claim made by its litigants, debt disputes.

International merchants, for whom litigation was a last resort, had the opportunity

privately to arbitrate in a familiar environment before their peers. Where litigation

was unavoidable, the Tribunal’s permission gateway enabled these and other

merchants and traders to seek assistance from state courts, while at the same time

being seen to remain within the boundaries of community behavioural norms. For

the poor, who were the majority of the Tribunal’s users, community-based justice

had additional advantages. Although courts of request fees were low, the Tribunal’s

services were free. Hearings took place informally before men who were intimately

aware of the complicated relationships among family members and neighbours that

often gave rise to interconnected indebtedness, and of the economic circumstances of

debtors who were in receipt of sedaca or business loans. Such knowledge facilitated

negotiation of realistic repayment schedules free from the spectre of imprisonment

that defaulting debtors faced in courts of request. Similarly, congregants knew that

the Tribunal would not permit recalcitrant defendants to frustrate their valid causes

of action, and that the Tribunal’s permission gateway acted as a bargaining tool in

settlement negotiations. Although the allure of non-Jewish courts was always

present during the long history of the Tribunal, this study shows that many

congregants continued to exhibit an ongoing commitment to resolving their disputes

before it until the idea of civil lay justice went into decline from the second quarter

of the nineteenth century.

As to the resolution of religious disputes, most congregants demonstrated their

commitment to Jewish justice by avoiding litigation in the civil or ecclesiastical

courts that touched on fundamental issues regarding personal status. When

contextualised against the evidence from the Livros and Mahamad minutes, it

becomes transparent that litigation in the ecclesiastical courts about the validity of

marriage and judicial separation was exceptional and cannot be treated as indicative

of a normative inclination to choose Christian rather than Jewish courts as the venue

to resolve such matters. An individual litigant’s commitment to the Jewish judicial

238

space can be radically re-evaluated by looking beyond the narrative of reported

judgments. This approach to the Lindo case yielded the insight that the Lindo family

were committed to finding a Jewish remedy for Esther’s predicament and that the

ecclesiastical court route to a remedy emerged from an Order of the Court of

Chancery that her status in English law be resolved before the Christian court.

Furthermore, it is important to acknowledge that choice of court venue can be

correlated with the type of harm for which a litigant sought a remedy, rather than to a

trend among most Jewish litigants to acculturate to English legal norms. Irrespective

of socio-economic background, for example, women availed themselves of the

‘network of solutions’ to marital difficulties by pursuing husbands for maintenance

in the magistrates’ courts, or by prosecuting them for violent behaviour.30 The

Tribunal showed a realistic appreciation of the necessity for such action and

recognised that many marriage difficulties concerned financial issues that would not

alter personal status as husband and wife. Accordingly, they flexibly used their

permission gateway to permit access to non-Jewish courts, even in some cases going

as far as assisting a wife to pursue her husband in this way.

The realignment in English legal culture in the mid-nineteenth century towards

formal lawyer-led local civil justice contributed towards the reimagining of the

vision of the Sephardi Jewish judicial space as one led by halakhically qualified

experts only. This reorientated judicial authority in the Bet Din to hear religious

matters as well as civil disputes, according to din torah. This situation mirrored that

of the majority Ashkenazi community’s reliance on dayyanim sitting in batei din to

hear issura matters. Sephardi lay leaders now had to accept the political and legal

reality that flowed from the denial of judicial autonomy to the Jews in 1655. The

London community existed as a voluntary religious association only and its internal

judicial arrangements existed in the private realm where individual congregants

voluntarily submitted their disputes. When congregants litigated before non-Jewish

courts, they would now create new communicative pathways to negotiate the

relationship between religion and legal pluralism.31

30 Bailey, Unquiet Lives, 32. 31 For historical examples of negotiating religion, see Guesnet, Laborde, and Lee, Negotiating

Religion, 19-62.

239

There are many aspects of the Livros still to be researched, some of which I have

touched on in this thesis, such as gender issues and attitudes towards an idea of a

Jewish judicial space available to all Jews, as opposed to Sephardi congregants. The

socio-economic details in the Livros suggest fruitful avenues for linking this

information with recent studies of the London community’s welfare arrangements.

In the legal context, a systematic examination of central and local court records may

yield additional insight about whether Sephardim used formal arbitration processes,

and there is much to be done to understand the patterns of secular debt litigation in

the nineteenth century after the demise of courts of request.

Moving forwards to contemporary concerns, studies such as this one contextualise

some present-day claims to jurisdiction over highly contested matters, such as

Jewish divorce. This is not the place to expand on this point, other than to mention

that the issue of co-opting the secular legal space to rectify problems encountered in

in the Jewish judicial space continues. In July 2021, the Federation Bet Din indicated

that an agunah who seeks to use recent legislation consolidating domestic abuse law

to prosecute her husband for coercive control will be denied a get, on the grounds

that her husband will not have freely consented to give it. The Federation Bet Din’s

stance suggests that twenty-first century batei din take a more restrictive and limited

approach to finding halakhic solutions than their eighteenth-century counterparts in

the Portuguese Bet Din who heard the Lindo case and who, by eventually declaring

the kiddushin in that case null and void, freed Esther from her ties with Belisario.32

By illuminating the complexities, nuances, continuities, and discontinuities that

characterise the history of an early modern example of a Jewish judicial space, this

research offers the present moment the possibility of a more considered and

informed conversation about negotiating the space for Jews and Judaism in the

secular legal realm.

32 Jenni Frazer, "Exclusive: Rabbis Refuse Divorces for Women Who Take Their Fight to Court", The

Jewish Chronicle, 2 July 2021; "Exclusive: Rabbis Accused of Siding with Abuse", The Jewish

Chronicle, 9 July 2021.

240

APPENDIX 1: NINETEENTH CENTURY LIVROS ENTRIES

Year No. Explanatory note

1800 38 The compilers of the Livros

adopted different approaches to documenting the recovery

of loans made to congregant

debtors by the Ma’asim

Tobim. Sometimes these are

documented as separate

claims, as shown by a line

ruled between each

defendant’s liability. Other

entries state the Ma’asim

Tobim in the name of its

serving treasurer, followed by

a list of defendants in a single entry. By 1837, Livro 6’s

cause list system displayed

Ma’asim Tobim claims as a

single entry. For the purposes

of this Appendix, I have

treated every claim against a

Ma’asim Tobim defendant as

a separate entry, irrespective

of how their disputes were

documented in each Livro.

1801 58

1802 87

1803 82

1804 43

1805 41

1806 54

1807 63

1808 85

1809 81

1810 88

1811 70

1812 69

1813 56

1814 51

1815 37

1816 44

1817 58

1818 59

1819 57

1820 56

1821 53

1822 88

1823 43

1824 43

1825 41

1826 32

1827 57

1828 40

1829 (to 1 July) 55

2 July 1829 to 2 May 1837 Undocumented/missing Livro?

1837 (3 May to end year) 66

1838 55

1839 61

1840 83

1841 69

1842 76

1843 48

1844 47

1845 68

1846 50

1847 58

1848 41

1849 56

1850 51

1851 36

1852 19

1853 13

1854 23

1855 22

1856 12

1857 11

1858 36

1859 22

1860 25

1861 12

1862 17

1863 11

1864 3

1865 0

1866 0

1867 0

1868 1

241

APPENDIX 2: GLOSSARY1

amora (pl. amora’im)

Rabbinic sages of the period 200-600 C.E. who

followed the tanna’im. Classic works are the

Babylonian and Palestinian Talmuds.

῾arka’ot shel goyim Lit., ‘tribunals of gentiles’; non-Jewish courts. Also

meaning ‘offices of gentiles’.

arusah

Affianced or betrothed bride; term used to refer to a

woman’s status after kiddushin and before nissu’in.

Ascama (pl. Ascamot) Lit. agreement’. The governing articles or laws of the

Sephardi community. Transliteration of the Hebrew

haskamah, sometimes transliterated as escama (pl.

escamot).

baraita (pl. baraitot) Lit., ‘external’ (noun). The teachings of the tanna’im

not included in the Mishnah but quoted in the Gemara.

berurim Lit., chosen, select, certain ones. Denotes the men

elected or appointed to govern the kahal.

bet din rabbinical court.

bet din shel hedyotot court of laymen.

Bet Yosef Joseph Karo’s commentary on Jacob ben Asher’s

Arba῾ah Turim, which he later used as the basis for his

code of Jewish civil and religious law, the Shulḥan

῾Arukh.

de-oraita Laws mentioned in or deemed to have been derived

from the written Torah. cf. de-rabbanan.

de-rabbanan Laws ordained by the rabbis. cf. de-oraita.

dina de-malkhuta dina (Aramaic) lit. the law of the kingdom is the law.

din torah Lit., law of the Torah; judgment, claim, lawsuit.

Commonly used in the London Sephardi community to

refer to the submission of a dispute to the rabbinical

court for a ruling based on Jewish law. cf. pesharah

krovah-la-din and pesak din.

1 For Hebrew terms this Glossary largely follows definitions in Walzer, Lorberbaum, and Zohar,

Authority, 545-554. Some definitions reflect usage in the Sephardi community of London and hence

omit details pertaining to other biblical, talmudic or medieval usage.

242

erusin Betrothal; used interchangeably with kiddushin. In

Jewish law, the first stage of marriage, followed by

nissu’in. In modern Hebrew, engagement.

Gaon (pl. geonim) Title of the heads of the Babylonian academies in the

post-talmudic period (c. 750-1150 C.E.).

get (pl. gittim) Lit., a written document, commonly used to refer to a

Jewish bill of divorce.

Ḥakham Sage, learned person, wise; honorific title conferred on

the leading rabbinical appointee in the Sephardi

community.

halakhah Lit., ‘practice, accepted opinion’; a legal rule, accepted

legal tradition or more generally Jewish law. See also

mamona, issura.

ḥerem Ban; excommunication. Designated in the Ascamot

(governing articles of the community) as a punishment

for infringing a rule.

ḥuppah Alternative term for nissu’in, the second stage of the

Jewish marriage ritual, completing the marriage

process. In modern usage, the bridal canopy under

which the seven marriage blessings take place.

issur, issura Prohibition; issura generally concerns ritual matters (as

opposed to civil law). Everything that is not issura is

classified by halakhah as mamona. Modern meaning

connotes religious matters.

Kahal Lit., gathering, community, congregation.

ketubah (pl. ketubot) Marriage contract; the payment on dissolution of the

marriage.

kiddushin Lit., sanctification, act of betrothal. The first step in

Jewish marriage ritual, also legitimate marriage.

Variant transliterations in the Sephardi archival records

include kedusin, kedusim, kidusin, kidusim, sometimes

spelled with double ‘s’. See also erusin.

mahamad, ma‘amad Lit., standing, place, status. The governing committee

of the Sephardi community.

mamona (pl. mamonot) Lit., property or wealth. Modern meaning is civil or

economic (especially fiscal) matters. cf. issura.

243

mamzer Child born from an illegitimate union according to

halakhah, usually incestuous or adulterous; prohibited

from marrying another Jew, save for a fellow mamzer

or a convert.

nissu’in

The second stage in the Jewish marriage ritual

completing the marriage process. Also called ḥuppah.

parnas (pl. parnassim) Lit., provider. In the Sephardi community, the

appointed wardens, or elected leaders of the

community.

pesharah krovah-la-din

Lit., compromise close to law; a ruling of a tribunal or

rabbinical court that reaches a fair and reasonable

compromise or settlement of a dispute consistent with,

but not strictly in accordance with Jewish law, and

considering, if required, equity, custom, or business

practice. cf. din torah.

pinkas (pl. pinkasim)

Jewish communal scribal notebooks, records.

pesak din

Legal judgment of a rabbinical court.

samas Beadle. Transliteration of shammash which was

favoured by the London Sephardi community.

safek kiddushin Doubtful betrothal.

sedaca Lit., justness, fairness, righteousness; charity, good

deed. Transliterated spelling follows the London

Sephardi community’s practice. Also transliterated as

tzedakah.

Shulḥan ‘Arukh Lit. ‘prepared table’. Concise code of Jewish civil and

religious law written by Joseph Karo in sixteenth-

century Safed.

shiddukhin A couple’s mutual promise to marry each other at some

time in the future.

takkanah (pl. takkanot) Lit., a remedy; regulation or ordinance promulgated by

the rabbi of a community or by its elected or appointed

leaders.

tanna (pl. tanna’im) First generations of the rabbinic sages, c. 70-200 C.E.

Classic works are the Mishnah and Tosefta.

244

Tur Abbreviation of Arba‘ah Turim (lit., the four columns),

a code of Jewish civil and religious law written by

Jacob ben Asher in fourteenth-century Spain.

yehidim (sing. yahid) Full members of the Sephardi synagogal community.

245

APPENDIX 3: LIST OF ABBREVIATIONS

AJS Review Association of Jewish Studies Review

BL British Library

CAHJP The Central Archives of the Jewish People

Cardozo L. Rev Cardozo Law Review

Ecc. L.J. Ecclesiastical Law Journal

Elon L. Rev. Elon Law Review

Fordham Urb. L.J. Fordham Urban Law Journal

Int. J. Constitutional Law International Journal of Constitutional Law

Isr. L. Rev. Israel Law Review

J. Dispute Resolution Journal of Dispute Resolution

JHS Jewish Historical Studies (Transactions of the Jewish

Historical Society of England)

J. Legal Hist. Journal of Legal History

J. Legal Pluralism Journal of Legal Pluralism

LMA London Metropolitan Archives

LPL Lambeth Palace Library

L.Q. Rev. Law Quarterly Review

Md. J. Int’l L. Maryland Journal of International Law

Mod. L. Rev. Modern Law Review

MJHSE Miscellanies of the Jewish Historical Society of England

Nw. U. L. Rev. Northwestern University Law Review

N.Y.U.J. Int’l L. & Pol. New York University Journal of International Law &

Politics

Rutgers J.L. & Religion Rutgers Journal of Law & Religion

Sydney L. Rev. Sydney Law Review

TJHSE Transactions of the Jewish Historical Society of England

U. Malaya L. Rev University of Malaya Law Review

Wis. L. Rev Wisconsin Law Review

246

APPENDIX 4: LIST OF CASES1

Andreas v Andreas (1737) (unreported); cited in Lindo v Belisario (1796) supra.

Anonimous (1684) 1 Vern. 264; 23 Eng. Rep. 459.

Barker v Warren (1677) 2 Mod. 270; 86 Eng. Rep. 1066.

Calvin’s Case (1608) 7 Co. Rep. 1a; 77 Eng. Rep. 377.

D’Aguilar (Lady) v D’Aguilar (Baron) (1794) 1 Hagg. Ecc. 772; 162 Eng. Rep. 748.

Da Costa v De Pas (1753) Amb. 228; 27 Eng. Rep. 150.

Ganer v Lady Lanesborough (1791) Peake 25; 170 Eng. Rep. 66.

Goldsmid v Bromer (1798) 1 Hag. Con. 323; 161 Eng. Rep. 568.

Isaac v Gompertz (1753) Amb. 228; 27 Eng. Rep. 150.

Lindo v Belisario (1795) (Consistory Court of London) 1 Hag. Con. 215; 161 Eng.

Rep. 530; (1796) 1 Hag. Con. (App) 7; 161 Eng. Rep. 636.

Moss v Smith (184) 133 Eng. Rep. 317.

Omychund v Barker (1744) 1 Atk. 22; 26 Eng. Rep. 15.

R v Millis (1843-1844) 8 Eng. Rep. 884.

Robeley v Langston (1667) 2 Keble 315; 84 Eng. Rep. 196.

Vigevena and Silveira v Alvarez (1794) (unreported); cited in Lindo v Belisario

(1796).

Wells v Williams (1697) 1 Lord Raymond 282; 91 Eng. Rep. 1086 and 1 Salkeld 46;

91 Eng. Rep. 45.

1 I provide a full legal citation when I first mention a case. All subsequent citations provide

the Old English Report (Eng. Rep.) reference only. All page citations are given in the latter. Nominate Report abbreviations are as follows: Amb. (Ambler); Atk (Atkyn); Co. Rep.

(Coke); Hag. Con. (Haggard Consistory); Mod. (Modern); Vern. (Vernon).

247

BIBLIOGRAPHY

I ARCHIVAL DOCUMENTS

Lambeth Palace Library

Court of Arches

Arches D 146 Lindo v Belisario.

London Metropolitan Archive

City of London Session Papers

CLA/047/LJ/17/090 – Debtors Schedule, Fleet Prison, Poultry Compter.

Court of Requests

CLA/038/01/001– Report of Committee appointed to enquire into the practice and

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