nature with the penalty of death. But it was never extended to persons not capable of holy orders; a by no means small class, including women and, according to the books, blind persons and all who did not profess the Christian religion; as was said in Poulter's case: "The common law doth not deny beneficium clericatus, the benefit of his clergy, but in certain cases: as if a man be convicted of any heresy, he shall not have his clergy for any felony, &c. The same law of a Saracen, Jew, or other infidel. Gravius est enim divinam quam temporalem laedere maiestatem; the same law in case of high treason against the king1." Such persons, if they offended, were left to the extreme rigour of the common law and to the mercy of the Crown. The unfairness of this state of the law did not pass unnoticed. In 1623 women convicted of grand larceny of goods not exceeding ten shillings in value, and in 1691 women found guilty of any clergyable felony were placed on the same footing as men entitled to clergy. At length in 1706 the idle ceremony of reading, which, as the statute says, by experience had been found to be of no use, was dispensed with by 5 Anne, c. 6, s. 6, which, being liberally interpreted, according to Sir Michael Foster, "entitled those who before were supposed to be under a legal incapacity for orders, as Jews and some others were, and likewise those who in presumption of law were not qualified in point of learning, to the indulgence of the law in common with the rest of their fellow subjects 2." It should be added that the whole system of benefit of clergy was swept away in 1827 by 7 & 8 Geo. IV, c. 28, which also abolished the death penalty for all felonies which had formerly been clergyable. Sir William Blackstone takes a view contrary to the authorities which have been quoted, and questions whether it was ever ruled for law that Jews were before 1706 incapable of the benefit of clergy. Happily for the good name of the

1 II Co. Rep., p. 29 b.

• Foster's Orown Cases, p. 306. The statutes as to women are 21 Jac. I, cap. 6 and 3 & 4 W. & M., cap. 9.

1

The practice of adminis

oath upon

Testament

disabili

Jewish community in these early days, this was a purely academic question, for the Jews in England did not commit the crimes for which this privilege in mitigation of punishment had been granted, as Tovey, speaking of the reign of Charles II, says: "But tho' so few of them were converted, in this Reign, to Christianity, yet in some measure they lived up to the precepts of it, by a regular observance of all civil duties. For I find no complaints against them of any kind, excepting such as related to the Custom-House; from which they cleared themselves by pleading the King's Patent 1."

The real disabilities, whether civil or political, which were imposed upon the Jews, arose almost entirely from the form tering the of oath or the method of administering it. The political necessary disabilities were occasioned by the tests and forms of oaths the New enacted by Parliament; the civil ones for the most part by the cause the custom, almost universal at one time, of administering of the civil the necessary oath upon the New Testament, a method ties of the wholly unacceptable to a conscientious Jew. Many civil disabilities were no doubt imposed by the statutes aimed against Popish recusants, but, as has been previously stated, these statutes were not enforced against the Jews, who, though in strictness liable to the penalties enacted by them, were regarded as exempt by reason of the dispensations granted by Charles and James II. The most irksome

Jews.

1 Anglia Iudaica, p. 285. The passage in Blackstone is vol. IV, pp. 373, 374, but all the authorities are the other way. See Fost., p. 306; 2 Hale, p. 373; 11 Co. Rep., p. 29b; and Hawkins, Pleas of the Crown, vol. IV, p. 249. Leach's edition of 1795, who says: "Not only those actually admitted into some inferior order of the clergy, but also those who were never qualified to be admitted into orders (which was tried by putting them to read a verse) have been taken to have a right to this privilege, as much as persons in holy orders, whether they were persons lawfully born or bastards, aliens or denizens, in the communion of the church or excommunicate, within the common benefit of the law or outlaws, &c., so that they were not heretics convict, nor Jews, Mahometans, nor Pagans; nor under perpetual disability of going into orders; admitting of no dispensation, as blind and maimed persons formerly were, and women still are."

excluded

London.

of all these disabilities was the impossibility for a Jew to Jews become a freeman of the city of London, and so no Jew from the could exercise any retail trade within the city boundaries, freedom of for, by the by-laws of the corporation of London, retail the city of trade in the city was strictly confined to freemen. By the local usage of the city the oath tendered before admittance to all those entitled to the freedom was always administered upon the New Testament, and thus the Jews were excluded. In the year 1739 an attempt was made to allow Jews to take the necessary oath on the Old Testament. In Trinity term of that year a rule was obtained in the court of King's Bench against the city chamberlain, calling upon him to show cause why he should not admit Abraham Rathom, a person duly qualified, to the freedom of the city. To this rule a return was made that it was the ancient custom to administer the oath of a freeman on the New Testament, but that when the oath was tendered to Rathom on the New Testament he refused to take it, although he was not a Quaker, and therefore he was not admitted. The case was three times argued at the bar, and finally the Chief Justice Sir Robert Raymond delivered the resolution of the Court. Upon this point he said: "The last objection made is, that it is not reasonable to confine the oath to the New Testament in trading cities, where a man's religion is of no consequence, and ought not to interfere. But the question before us is not whether upon a proper application the Jews not be allowed to swear upon the Old Testament, as they do when they give evidence; but whether this custom of taking an oath in the usual manner is unreasonable upon the face of it"; he then cites authorities as to the definition of an oath, and says that Christianity is part of the law of the land, and continues: "It was said that the law does not require the New Testament in all cases, particularly as to evidence given by Jews. But the reason of that is, because all courts desire to have the best security they can for the truth of the evidence; and therefore, as it is known they have a more solemn obligation to speak the truth when

may

Quakers in a better position

sworn on the Old Testament, it is for that reason allowed. The common regular way of swearing is on the New Testament, and shall we say that a custom requiring such a regular oath is bad? The I Eliz., c. 1, 8. 19, take notice of an oath upon the Evangelists, and the abjuration oath (till altered for the Jews by 10 Geo. I, c. 10, s. 18) runs upon the true faith of a Christian. We therefore think that this is a good return and allow it1."

In this respect Jews were in an inferior position to Quakers, in whose favour Acts of Parliament had been than Jews passed, enabling them in all cases where an oath was

in this

respect.

Jews and trade in

than

allowed to

be brokers.

required (though not qualifying them to give evidence in criminal cases or to serve on juries or to bear any office or place of profit in the Government), to make an affirmation instead of the oath, and who therefore could not be excluded from civil rights upon the ground that they refused to take the oath when duly tendered in the customary form 2.

Thus the Jews were unable to become citizens of London, and were in consequence by the by-laws of the city the city of London. excluded from all retail trade within its boundaries; Not more wholesale trade was, however, open to them, and from twelve the first days of their return several of their number had occupied prominent positions as merchants in the city. In addition to their total exclusion from all branches of retail trades, the number of Jewish brokers permitted to carry on business in the city was strictly limited to twelve, who received licences from the court of aldermen. These licences they were allowed to transfer upon payment of a fine to the Lord Mayor, which in the course of time

1 Rex v. Bosworth (1739), 2 Strange, pp. 1112-4.

2 The statutes are 7 & 8 Will. III, cap. 34; 8 Geo. I, cap. 6 & 22 Geo. II, cap. 46, sec. 36. See Rex and Morrice v. the Mayor of Lincoln (1698), 12 Mod., p. 190 and 5 Mod., pp. 399-403, where the Mayor of Lincoln was compelled by mandamus to admit a Quaker to the freedom of the city; and Rex v. the Turkey Company (1760), 2 Burn, pp. 943 and 1,000, where a Quaker was held to be entitled to be admitted to the Turkey Company upon his affirmation without taking the oath prescribed by the Act of Parliament regulating the Company.

became a valuable perquisite1; but if a Jewish broker died without having transferred his licence the appointment fell to the city and might be disposed of to the highest bidder. The place of a Jewish broker was thus of considerable value and at least on one occasion became the subject of litigation in the courts. In the year 1750, upon the bankruptcy of a Jewish broker, a petition was presented to the Court of Chancery, praying that his place as broker might be sold for the benefit of his creditors, but Lord Chancellor Hardwicke held that it could not be considered as an office, and refused the petition 2.

1830.

It remains only to add that in the year 1829 the following The disability motion was unanimously carried in the Court of Common removed, Council, "That it be referred to the Committee relative to Dec. 10, wholesale dealers to make inquiry and report as to the municipal or legal impediments by which Jews carrying on business in the City of London are debarred from taking up their freedom of the City of London." In consequence of the report subsequently sent in, an Act was passed on December 10, 1830, by the common council, for enabling persons to take the oath according to the forms of their own religion 3. And so since the year 1831 the custom of

1 "As much as £1,500 has been paid for a broker's medal, and a system of disgraceful jobbing has been the consequence; a Lord Mayor and four Aldermen next in succession to the chair having formerly conspired together to raise the customary fee for transferring a broker's medal from £100 to £500 in which they succeeded. Taking customary fees (however unjust) might perhaps be palliated by immemorial usage; but may it not be asked in the case just alluded to, in the offensive sense of the word, who was the greatest Jew, my Lord Mayor or the broker? It is not astonishing that cases should have occurred where a broker has retaliated upon his lordship; and it was whispered many years back, when these transactions took place, that by threats of exposure sums have been disgorged and paid back again to the broker." Brief memoir of the Jews in relation to their civil disabilities by Apsley Pellatt, himself a member of the Corporation, published in 1829.

2 See ex parte Lyons (1750), Ambler, p. 89.

* See Welch's Modern History of the City of London, p. 167. Journal, 105, fols. 5, 6.