Ordinance of 1271 forbidding Jews to hold land England or a free denizen, being a Jew, may purchase lands1. However, shortly afterwards, the pre-expulsion legislation against the Jews was unearthed and relied on in support of the alleged disability. There were two statutes dealing with the matter. In 1271 a statute or ordinance (55 Hen. III) had been enacted, prohibiting Jews from holding any freehold lands excepting only the houses then in their possession in which they were actually living, but four years later the statute de Iudaismo slightly increased their power to acquire land, for the right was granted them to "buy Houses and Curtilages in the Cities and Boroughs where they abide, so that they hold them in chief of the King; saving unto the Lords of the Fee their services due and accustomed." The first of these ordinances does not appear in any of the printed editions of the statutes, and was discovered by Tovey in an ancient MS. in the Bodleian Library, discovered and first printed by him in his Anglia Iudaica in the year 1738; its authenticity is, however, firmly established, and so it was agreed that opinions given fifteen years earlier without knowledge of its existence were of little or no value. This point was much discussed during the passage and repeal of the Jewish Naturalization Act of 1753, and after the repeal of the Act Lord Temple moved in the House of Lords that some method might be taken to ascertain this question, and that for this purpose the judges might be desired to attend and give their opinions upon it, but the motion was rejected, principally upon the ground that the judges are not obliged to give their opinions to the House upon such extra-judicial questions, where no bill is depending 2. Even as late as 1830 there were those who thought that this alleged incapacity still existed, for Mr. Blunt, in his excellent History of the Jews in England, published in that year, is unable to resist this conclusion3, by Dr. Tovey in 1738. 1 For copies of these opinions see Webb, "The question whether a Jew, &c." pp. 42-6. 2 2 Swanston, p. 508 note, from Mr. Coxe's MS. notes. • See Introduction, p. v, and pp. 119–27. and in the same year that unrivalled Master of Real Property law, Lord St. Leonards, then Solicitor-General, in presenting a petition from one Lewis Levi, asking for a declaratory law to remove all doubts as to the power of Jews to hold landed property in fee, stated in the House of Commons that he concurred entirely with the petitioner in thinking such a law was necessary. A little later in the session leave was asked to bring in a bill for this purpose by Colonel Wilson, who said that "he was aware that the opinion of the high law men at present was, that the Jews might hold landed property like other British subjects; but, though that was the present dictum of lawyers, it did not follow that it would be the opinion of their successors," and added that he had himself been dissuaded some years before from buying some landed property of a Jew by Sir Samuel Romilly who had given it as his opinion that he could not obtain a good title from a Jew. The motion was opposed by Mr. R. Grant, who had taken up the Jewish cause, on the ground that it would be prejudicial to the general question of the abolition of the Jewish disabilities to deal with them piecemeal, and negatived without a division 1. It has already been pointed out that these ancient statutes could have no application to the Jews after their return to England centuries later, when the status of villeinage no longer existed 2; and certain it is that the Jews long before 1846, when the Ordinance of Henry III and the Statute de Iudaismo were formally repealed, did with impunity openly hold and enjoy landed estates other than houses in towns or cities in which they resided; a well-known instance is given by Sir Francis Goldsmid, Q.C., in his remarks on the civil disabilities of British Jews, who says that the late Chief Justice Lord Ellenborough (who died in 1818) gave a practical proof of his concurrence in the belief that Jews might hold 1 Hansard, and series, vol. XXIV, p. 236, XXV, p. 429. * See supra, pp. 63-65, the 'Return of the Jews to England,' pp. 15-17. of Jews to land, by purchasing without hesitation of Mr. Benjamin Goldsmid a valuable freehold seat at Roehampton 1. Capacity If a Jew born here, or otherwise having acquired the hold ad- rights of a natural born subject, was capable of holding vowsons. land and other real property, then there was nothing in our law to prevent his holding an advowson, a species of real property which confers upon the owner the right of presentation to a church or ecclesiastical benefice. And so a Jew, owning an advowson, might present a duly qualified person to fill any vacancy which might occur. It must, however, be evident that if this form of property had been frequently possessed by Jews, attempts, which would have almost certainly proved successful, would have been made to prevent it. Indeed, the right had been taken from Roman Catholics by various statutes, and in cases of advowsons owned by Papists the right of presenting to the benefices when they became vacant vested in the Universities of Oxford and Cambridge, according as the livings were situate in the several counties mentioned in the Acts 2. Similarly, in the Act to permit persons professing the Jewish religion to be naturalized by Parliament, the famous Jew Bill of 1753, a clause was inserted disabling Jews from purchasing or inheriting any advowson or right of patronage, but the popular clamour raised by the passage of this Act was so great that the Houses of Parliament felt constrained to repeal it as the first measure of the ensuing session, and, as the repeal was of the whole Act, the clause imposing the disability was also annulled 3. Henceforth, therefore, the Jews were under no such disability, unless the statutes or ordinances of the 1 p. 4. See also Sir Samuel Romilly's argument in the Bedford Charity case, 2 Swanston at p. 511, and for the whole subject Lord Lyndhurst's remarks in introducing the Religious Opinions Relief Bill (1846) in the House of Lords. Hans., Parl. Deb., 3rd series, vol. LXXXV, p. 1254. * See 3 Jac. I, cap. 5, secs. 18-21; 1 W. & M., cap. 26, sec. 4; 13 Anne, cap. 13, sec. I, and Edwards v. the Bishop of Exeter (1839), 7 Scott, p. 676, and 5 Bing. N. C., p. 652. 26 Geo. II, cap. 26 and 27 Geo. II, cap. I. pre-expulsion period, which it has already been argued were not applicable, imposed it. When in 1846 these ordinances were formally repealed, as there was no clause dealing with advowsons in the repealing Act, any doubt there may have been on this point was removed, and, however inconvenient or undesirable it may be, it is now undoubtedly the law that a Jew or any other Dissenter, except a Roman Catholic, may have the right to present to a vacant living in the Church of England1. In the case of Jews, though not of other Dissenters, it was thought fit in 1858 to restrict this right by enacting, in the Act which enabled the Houses of Parliament to modify the form of oath to be administered to their members in such a way that Jews could take it, that when any person professing the Jewish religion held any office in the gift of the Crown to which the right of presentation or of appointment to any ecclesiastical benefice is annexed, such right should devolve upon and be exercised by the Archbishop of Canterbury for the time being 2. A Jew therefore, if he holds an advowson in his own right, may present to a living, but he can only present a duly qualified person, that is, a clerk in holy orders, for no one not episcopally ordained will be instituted by the bishop. the benefit A Jew was, unless he had previously renounced his Jews and religion, incapable of becoming a clergyman; and therefore of clergy. Jews who had committed crimes and been convicted of them could not, according to the opinion of many great legal writers, avail themselves of the benefit of clergy which other malefactors, on a first conviction for felony, were at liberty to plead in mitigation of punishment. This right, known technically as privilegium or beneficium clericale, originated in the claim which in early times, when Papal supremacy was still recognized, had been 1 In Mirehouse v. Rennell, which was decided in the House of Lords in 1833 before these old ordinances had been repealed, this was stated to be the law by Lord Wynford, see 7 Bligh, N. S., 322. 221 & 22 Vict., cap. 49, sec. 4. made by the ecclesiastics to exemption from temporal jurisdiction, and to trial, when charged with criminal offences, by the ecclesiastical courts in accordance with the provisions of the canon law. This claim had never been recognized to its fullest extent in England, but the privilege in question had been regulated by a number of statutes, the result of which was that in the time of Charles II any person convicted of felony punishable with death, as all felonies with few exceptions such as petit larceny then were, could before judgment claim his clergy. The result of the granting of this claim was that the convict, having already by conviction suffered forfeiture of all his goods and chattels, was liable to be kept in prison for a time not exceeding one year and, if a layman, to be branded in the hand, after which he could not have the benefit of clergy a second time, but was subject to no further penalty; but, if in holy orders, he was, after 18 Eliz. c. 7, discharged without any further punishment, and could again have the benefit of clergy, however often he might be convicted of a clergyable offence. Benefit of clergy did not, however, apply to cases of treason or any misdemeanour less serious than felony, and was especially ousted or abolished in the case of murder, robbery, and the more atrocious kinds of felony. It was no doubt originally allowed only to those who had been ordained priest or deacon and had “habitum et tonsuram clericalem," but had been demanded on behalf of, and gradually conceded to, all who were supposed to be capable of taking part in the service of the church, which was interpreted as meaning all who could read. But the test of reading was not a severe one, for it became reduced to repeating a scrap of Latin, in nearly all cases the same three words, "Miserere mei, Deus," which became known as the neck verse, and was probably familiar to the bulk of the criminal classes. Thus the privilege was retained long after its original cause had ceased to exist, and was defended as a relaxation of the extreme severity of the common law which punished many offences of a comparatively trivial |