THEFIRSTJEWISHSETTLEMENTS INTHEPOLISHLANDS
2.6. The incorporation of the Jewish privileges into the Polish common law (ius commune)
The incorporation ofJewish privileges to Polish common law took place during the reign of Alexander I (1501-1506). Alexander I turned outto be even more tolerant than the previous Polishmonarchs, the policy taken shortly after the Jewish expulsion from Spain in 1492 as well from Austria, Hungary and Germany. Tolerant Poland opened itsgates beginningtoaccepttheexiled Western European Jews, and soon it became recognizedasthe haven for such refugees. This flow of Jewsfrom Western Europe soon madePoland the cultural and spiritual center of theJewishpeople. In
142 2. The original Jeurish legal position in the Polish Kingdom
1503 the King appointed Rabbi Jacob Pollak astheofficial Rabbi ofLesser Poland (Małopolska). This wasthebeginning of theChief Rabbinatein Poland, and in 1551 the Jews of Greater Poland (Wielkopolska) were given permission to choose their ownChief Rabbi. The Chief Rabbihad extensive legal and financial power overthe Jews in Poland, appointing Jewish judges and other officials.Suchanauthority was extensiveeven if he had to share some ofhis powerswith local councils. From then on the Rabbinate grewin power, but from theking’s point of view thiswas mainly so for the purposes of efficient tax collection.141
141 The Jews in the Kingdom of Poland from the beginning distributed their internal revenues collected for community purposes very unevenly. It is estimated that 70% of the money collected by Jews went for the royal protection, only the rest being used for other Jewish causes.
142 A. Michałowska-Mycielska (ed.), Sejmy i sejmiki koronne wobec Żydów..., p. 28.
143 H. Wajs, R. Witkowski (eds.), Pomniki prawa człowieka..., pp. 57-58; also M. Schorr,
‘Zasadnicze prawa Żydów w Polsce przedrozbiorowej’ (The Fundamental Jewish Laws in the Pre-partitioned Poland) in I. Schiper, A. Tartakower, A. Hafftka (eds.), Żydzi w Polsce odrodzonej. Działalność społeczna, gospodarcza, oświatowa i kulturalna (Jews in the Reborn Po
land. Social, Commercial, Cultural and Educational Activity), Vol. 2, nakł. Wydawnictwa “Żydzi w Polsce Odrodzonej”, Warszawa 1932-1933.
144 S. Grodziski, ‘Z dziejów krakowskiego sądownictwa...’, p. 104; S. Kutrzeba,Historia ustroju Polski..., Vol. 1, p. 324.
Alexander I confirmed the 1453 version of the Jewish privilege.At the same time the monarchordered that theKaliszPrivilegeof 1264 be included in the Kingdom’s statutes prepared by Chancellor Jan Laski and printed in January of 1506, the first truly general Code of Laws ofPoland.142 In the form published in the Laski Code, the privilege of BolesławPobożny of1264 began to be quoted afterwards. Itwas subsequentlyconfirmed by thekingsZygmunt IStary in 1531, Zygmunt II August in 1548 and 1559, StefanBatory in 1580,Zygmunt IIIVasa in 1592,Władysław IV in 1633, JanKazimierz in 1649,Michał Korybut Winiowieckiin 1669, JanIII Sobieski in 1678,and alsoby the kings AugustII the Strong,August III Saxon in 1735, and finally by the last king of the Polish-LithuanianCommonwealth Stanislaw August Poniatowski in 1765.143
Among these the confirmation ofMichal Korybut Wisniowiecki in 1669 was interesting from anotherpoint ofview. The king lobbied by the Jews ofWielkopol
ska (Greater Poland) attempted the codification of all the Jewish privileges issued in Poland, bringing togetherina rather loose manner thegeneral and also provincial privileges from 1264 until the middle of the 17th century. It is difficult to assess whether sucha codification, orbetter to say an ordered collection, reflectedin any way the existingpractice, orin which way and to whatextent the provincial privi
leges were still operative. This loose collectionof privileges collected in 1669 was then confirmed by the last of the Polish kings Stanisław August Poniatowski on
14 ofJune 1765.144
Apart from the royal confirmations the already-mentioned Statute ofLaski {Statut Łaskiego) of1506was of an enormous importance for the legal status of
2. The original Jewish legal position in the Polish Kingdom 143
the Jews in Poland. This Statute contained all the legal documentsand privileges in force in the Kingdomof Poland and was preparedby the Crown ChancellorJan Łaski (1456-1531) as a consequence of a constitution (statute) of the PolishSejm voted during its deliberations inRadom in 1505, entitled De constitutionibusnovis per proclamationes publicandis. In article 2 it said: “so the ignorance of a new constitution (statute) shall not deceive anyone, so if anything was done against the constitution which has not been publishedandknown toall, we decided [...]
that no one could be forced to obey a newconstitutionifit hadnot been officially promulgated'. Thepromulgation oftheStatuteofŁaskichanged in apositive way
a legalpositionof the PolishJews by putting theJewish privilege within thecon text ofthe entire legal structure of the Crown (Korona), that is the Kingdom of Poland. The Statute of Łaski became an official printed collection of Polish laws, the so-called prawo pospolite (ius communePolonicum), binding on all subjects oftheking. Theidea of iuscommune appearedinPolandtogetherwiththe Church canon lawand developed subsequentlyas acentralization of the state proceeded.
Iuscommunecorresponded both tothe idea of community (communitas)and Rzec zpospolita (Respublica), meaning the state common for all. Such a doctrine had already gained wide acceptance in the second half of the 1 S01 century andbecame decisive in the 16th century when the very name Respublica began to be used as asynonym for theentire Kingdom.145
145 W. Uruszczak, Historia państwa i prawa polskiego, Vol. 1, Wolters Kluwer Polska, Warszawa 2010, p. 158.
146 Ibid.
147 See about the Code: ibid., p. 165; also idem, 'Commune incliti Regni... O tytule i mocy prawnej Statutu Łaskiego z 1506 r.’ (Commune incliti Regni privilegium constitutionum et in- dultuum. On the Title and Legal Power of Laski Statute of 1506) in I. Ratusińska (ed.), Prace poświęcone pamięci Adama Uruszczaka (Studies in Memory of Adam Uruszczak), Zakamycze,
Kraków 2006, pp. 115-135, Prace Instytutu Własności Intelektualnej UJ, No. 96.
The main and the mostimportant part of the Code contained the king’sprivi
leges, hisstatutes and also the constitutions (statutes) of the Sejm. Its public law was in principle obligatory for all the estates inthe Kingdom. Its partcontaining civil law was binding onlyfor the nobles. Otherestateshadtheir own laws.146 The Statute as a collection of printed laws, had the form and authority of the King’s privilege. But, andhere lay its strikingnovelty, it was at thesame time a constitu
tion, anofficial statute ofthe entireSejmvoted for unanimously by itsthree equal estates: the King, the Senate and the ChamberofDeputies. Such a unanimous vot ing system wasofficially declaredatthe RadomSejm of 1505as a consequence of this very Sejm enacting first the Nihil Novi constitution. This constitution estab lished the Sejmasthe kingdom’s highest legislative body, comprised of the King, the Senate and theChamberof Deputies, the crowning constitutional achievement of the Polish estate monarchy. Thelegal character of the Statuteof Łaskiwas thus different than just any ofthe King’sprivileges grantedtoa particular group.147As part of the lex terrae (the law ofthe land) thehighestlawpromulgatedbythe three
144 2. The original Jewish legal position in the Polish Kingdom
estates itgavethe Jews inPoland protection within the entireconstitutional struc ture of the monarchy. This protection could be neither diminished nor disregarded byanybody, individuallyor as a legal collective, who might, for instance, consider theking’sprivilege granted to the Jews in Poland not binding on them, or for that instance giving thema freehandin dealing with Jews outside the king’simmedi
ate domain.
The Jewish privilege was included in the Statutes ofŁaski at the end ofits first part, withtheincorrect dateof 1343, instead of 1334. The king’sdeclaration constituted itsintroduction. It read: Aprivilege of liberties and lawsissued by the grand grandfatherof the king of PolandKazimierz the Great I, in Kalisz, issued the day afterthe Assumption of the Virgin Mary[16 VIIT] in the year of 1264, fi nally in Kraków on the day of St. Dionisiusand his co-brothers in a year of 1334 by thesaid Kazimierzthe Great, the King ofPolandand the saidBoleslaws grand grandson confirmed. This [privilege] we the king Alexander, without a special confirmation, but out ofa need of defense againstJews, ordered added into the present codex ofthe collected privileges oftheKingdom. So this is its following
reading”. 148 The king didnot formally confirm theprivilege of 1264 inthe ver sion confirmed in 1334, but ordered the privilege to be put in the new code as a kindof alegalblueprint for dealing withJewish matters, officially asa defense against Jews.149 This wording should be read in a proper context and has to be understood as an expression ofa concernfor law andorder in relations between the Christiansand theJews.The king had an express wish that conflictswere to be adjudicatedaccording to the law, especially according to thementioned Statute of Kalisz.
148 S. Grodziński, 1. Dwornicka, W. Uruszczak (eds.), Volumina Constitutionum, T. 1, Vol. l,p. 151.
149 Sed ad cautelam defensionis contra iudeos, Ibid.
150 ‘Ustawodawstwo sejmowe w sprawach Żydów z lat 1496-1572’ (The Sejm Legislation in Jewish Matters in between 1493-1572) in T. Ciesielski, A. Filipczak-Kocur (eds.), Rzeczpo
This motive for including the Jewish privilege into the Statute of Łaski was revealed bychancellor Jan Łaski himself. Inan introductionto the Code he wrote that theAct was issued to guaranteejustice between the Christianand the Jewish residents ofthe Kingdom(ad iustitiaminter Christianos et Iudeos regnicolas provi- dendam). In relation to the Kalisz privilege of 1264 Łaski revealed his doubts on whether it had a general character. Heexpressed his reservationsbyprinting in the margins of his Code twoshort remarks - notabili. One written at the level ofthe Code’s introduction stated “Tantummodo in districti Maioris Poloniae censendum est istud privilegium observandum uti declarat hoc in prohemio dux Boleslaus. At the end, at the level of the confirmation formula, Łaski stated “Kazimirus rex con- firmat privilegium Boleslai non ad totum Regnum pro Iudeis. Judging from his last
remark, the privilege of 1264 was for him just a local privilege for Wielkopolska.
But this last statement had nopractical meaning.150
2. The original Jewish legal position in the Polish Kingdom 145 The official Sejm recognition ofthe Jewish privilege as part of ius commune Polonicum by thevery fact of including it in the Statute of Łaski changed thelegal nature ofthe Jewish privilege and its standing in the hierarchy of legal norms. In principle theregulations oftheKaliszprivilege of 1264 were meantto be validuntil they were changed by another piece of future legislation. From now on it became redundant to confirm Jewish privilegesby subsequent Polish rulers. WiththeJewish privilege being included as part ofthe law of the land by the unanimous consent of the Sejm, Jewishmatters became officially part of itsprovince, notjust ofthe mon arch’s prerogative. The Jewish legal protection had been elevatedto a highercon
stitutionallevel, even if atthe same time Jewish mattersbecame part ofthepolitical process to which the Sejm was subjected. One could yet argue that Jewish matters, by inclusion into the Łaski Code, were elevated to the level of fundamental law of theland.
One of the expressions of reverence for the laws of the Jewishcommunity and its religious separateness was the inclusion of the Jewish oath used in the disputes with Christians in courts, in which there were references to the Jewish faith and religioussymbols, into the Code itself.151 In feudalsociety power wascharacterized by its dualism. Part of itbelonged to the sole prerogative of the king, the rest to the estates. Both weresovereign in their own spheres.152 Whatin principle could not be changed though werethe fundamental laws of the land. TheStatute of Łaskicould be considered a form of such a law in the specific Polish conditions. Any changes init, additionsor eliminations, could be doneafterthe Sejm ofRadomof1505 only bythe unanimousconsentof the threeSejm “estates”, the King, the Senate and the Chamber of Deputies. In all three, theJews had their protectors and interests to be defended, andfrom now on they could enlarge the field of theirlobbyingpolitics accordingly. Itbecame obviousthat fromthen on itwas to be the Sejm legislative activity which would be the most decisive source of decisionsconcerning the Jews of Poland.
spolita państwem wielu narodowości i wyznań: XVI-XVIII wiek, Wydawnictwo DIG, Warszawa- Opole 2008, pp. 266-267.
151 S. Grodziski, I. Dwornicka, W. Uruszczak (eds.), Volumina Constitutionum, T. 1, Vol. l,pp. 151-156.
152 On this feudal concept of dual power as distinguished from a later concept of liberal pow
er distinguishing between power and civil society see for instance J. L. Cohen, A. Arato, Civil Society and Political Theory, Harvard University Press, Cambridge (Mass.) 1994, p. 86. A classi
cal work which explicated this concept of the feudal dualism of power is O. Brunner, Land and Lordship. Structures of Governance in Medieval Austria, transl. by H. Kaminsky, J. Van Horn Melton, University of Pennsylvania Press, Philadelphia 1992; see also S. Finer, The History of Government..., Vol. 2, pp. 875-876, 885-886.
For this very reason Jewish lobbying activity had to and was to switch from anarrow, personal contact withthe king, his chancery andhis officials, to a much more enlarged, unpredictable and complicated political sphere. This shiftrequired the nuanced and sophisticatedextensionof traditional lobbying activities to the sena
146 2. The original Jewish legal position in the Polish Kingdom
tors and thedeputies. But it also gave a chance to shape the Sejm politicsby influ encing the nobility’s deputies and also senators already at the local level, so they would act and vote according tothe Jewishinterests atthe central level. Thischange of characteroflobbying activity required from the Jews adetailedand sophisticated understandingofthe intricaciesof the Polishpolitical system. As aconsequencethe Jewish effortsto monitor everylevel of this systemalso stimulated thebuilding of much more sophisticated institutions created for thistask, the effortwhich eventu ally tookthe form oftheir institutions fully parallelingPolish-Lithuanianinstitutions to oversee andmakedeals with the nobility deputies and thesenatorsbeginningfrom the locallevel up to the central level. The Council of Four Lands overseeing suchan institutional structure down to thekahal level became the crowning achievement of this complicating process, developing functions well beyond the ones which were originally intended.
As part of the ius commune Polonicum, the Jewish privilege of 1264soon be came subjected to the further codification attempts in Poland, the so-calledCodifi cation of Laws Movement, one of the most importantlegaland political enterprises inthe Polish Kingdom in the 16th century. One ofthe attemptsin thisdirection was theprojectofacode oflawsprepared by orderoftheSejm, theso-called Correction of Laws (Korektura Praw) printed in Kraków in 1532.153 The Correction ofLaws contained 32 articles on Jews in a separate section. Entitled De Iudeis, pignoribus et usuriseorum itwas edited on a basisofthe Bolesław the Pious privilege of 1264 in a versioncontainedin the Statue of Laski of 1506,and also someof the statutes issued in particularPolish lands. But theCorrection of Laws of1532 never became an officially binding code oflaws in the Kingdom. It was rejected by the Sejm in
1534.154
153 See on that W. Uruszczak, Próba kodyfikacji prawa polskiego w pierwszej połowie XVI wieku. Korektura praw z 1532 r. (An Attempt to Codify Polish Law in the First Half of the 16th Century: Correction of Laws in 1532), Państwowe Wydawnictwo Naukowe, Warszawa 1979.
154 Idem, Korektura praw z 1532 roku. Studium historycznoprawne (Correction of Laws from 1532. A Legal-Historical Comparative Study), Państwowe Wydawnictwo Naukowe, Vol. 1, Warszawa-Kraków 1990, pp. 117-119, Zeszyty Naukowe Uniwersytetu Jagiellońskiego. Prace Prawnicze, Vol. 135; Vol. 2, Warszawa-Kraków 1991, pp. 91-92, Zeszyty Naukowe Uniwersytetu Jagiellońskiego. Prace Prawnicze, Vol. 137.