The privilege of 1264

The first privilege for the Jews in the Polish lands was issuedby Duke Boleslaw Pobożny(BoleslausthePious) in Silesia on 16thofAugust of 1264.It was soonfol­ lowedby other Silesian dukes whogranted similar privileges. Henryk Probus (The Righteous) issued such a privilege between 1274 and 1290, Henryk Głogowski around 1274and 1299,Henryk of Legnica andWrocławin 1290-1295, and Boiko ofŚwidnica in 1295. But the privilegeof Bolesław Pobożny of 1264 was founda­ tionalfor all categories of the above-mentioned privileges. His privilege has been known in Polish historiography as a statute, to stress its constitutional meaning, a legislative actof the highest order. Thatiswhy it merits a special and a morede­ tailedanalysis.110

110 See for instance A. Vetulani, ‘The Jews in Medieval Poland’, pp. 274-294; J. Sieradz­

ki, ‘Bolesława Pobożnego Statut kaliski z r. 1264 dla Żydów’ (The Bolesław the Pious Kalisz Statue of 1264 for Jews) in Osiemnaście wieków Kalisza. Studia i materiały do dziejów miasta Kalisza (Eighteen Centuries ofKalisz), Wydawnictwo Poznańskie, Kalisz 1960, pp. 131-142, Stu­

dia i materiały poświęcone zagadnieniom historycznym i współczesnym miasta Kalisza i regionu kaliskiego, Vol. 1; H. Zaremska, ‘Statut Bolesława Pobożnego dla Żydów. Uwagi w sprawie genezy’ (The Bolesław the Pious Statute for Jews. Remarks about its Genesis), Roczniki Dziejów Społecznych i Gospodarczych, Vol. 64 (2004).

111 It seems symbolic that the first priviledge for Jews in the Polish lands was officially issued in Kalisz. The Kalisz area was an important site through which the Amber Trail led, connecting the Baltic Sea with the Mediterranean Sea. This fact as well as a similarity of the medieval name ofKalisz (Calisia) to an ancient name of Calisia mentioned in 158 by Claudius Ptolemy, a Greek- Roman citizen of Egypt and a mathematician, astronomer, geographer, astrologer, and poet, are the reasons that the two sites are treated by historians as denoting the very same place. Since Jan Długosz, a Polish historian of the 15th century, Kalisz has been called the oldest Polish town - Calisia - Poloniae civitatum vetustissima. See K. Dąbrowski, Z przeszłości Kalisza (From the Past ofKalisz), Książka i Wiedza, Warszawa 1970, p. 64, 88, Biblioteczka Popularnonaukowa Światowid; W. Rusiński, Kalisz. Zarys dziejów (Kalisz. An Outline of the History), Wydawnict­

wo Poznańskie, Poznań 1983, p. 7.

The charterof 1264 was a general one and itrepeated nearly verbatimthe first 29 paragraphs taken fromtexts ofthe typical privileges of the European rulers, but addingnewarticles and modifying punishments for anti-Jewish acts meted out by the customary law of the land. Apart from the most obvious economic strategic goals, the inspirationfor this privilege could also be found inthe family connections ofBolesław Pobożny as well.He was married tothe Hungarian Duchess ofJolenta from the Arpad dynasty, a daughterof King Bela IV. In 1251 Bela granted a privi- legium to his Jewish subjects and it was essentially the same privilege as the one issuedbyDukeFrederick II theQuarrelsometothe Austrian Jews in 1244, although he modified it to suit the conditionsof Hungary. Some think thattheprivilegewas modeled on the Austriancharter of 1240. Officially, the Kalisz (Calisia) Jews were the initiators of the privilegeof 1264.111 Theymostprobablyprovidedthechancery with copies of the Austrian,Hungarian and Bohemiancharters which, inturn, were

2. The original Jewish legal position in the Polish Kingdom 133 modeledon thecharter of theBishopof Speyer of 1084. Theprivilege testified that in Kalisz there was a fully-organized kahalwith elders, a fact officially confirmed by anotherdocument of 1287.112 Theprivilegeregulated the functioning ofthe Ka­

lisz kahal, but it canbe treatedas a document issuedto allJewish kahals underthe Duke’s jurisdiction.

112 On the Hungarian connection see H. Wajs, R. Witkowski (eds.), Pomniki prawa człowieka w historii (Monuments of the Human Rights in History), transl. by A. Legutko-Dy- bowska, T. Wolański, Biuro Rzecznika Praw Obywatelskich, Warszawa 2008, p. 56, Księga Jubileuszowa Rzecznika Praw Obywatelskich, Vol. 1, at <http://www.rpo.gov.pl>. This Hungarian privilegium of Bela IV remained in force down to the Battle of Mohacs in 1526, which ended the existence of the Hungarian kingdom in its so far know shape. Ibid.; the Austrian inspiration of the charter of 1264 is stressed by A. Polonsky, The Jews in Poland and Russia, Vol. 1, p. 42.

113 In 1364 Kazimierz the Great extended the privilege to the lands of the Red Ruthenia which he incorporated into Poland. The privilege of 1334 was part of a larger strategic plan to establish Poland as a full-fledged Kingdom in Europe and to avoid its peripheral status. Jews were needed as a source of capital. They were also connected to the all-European financial market.

Other moves by the King to establish such a non-dependent position of Poland included a thor­

ough reform of the judicial system. He set up the appeal court for towns in Kraków, cutting them off from appeals to the German “mother” towns of Magdeburg and Lubeka, as well as issued legal codes for two major provinces of Poland: Little Poland (Małopolska) and Wielkopolska (Great Poland). The king also established the university in Kraków in 1364, as well as introduced many other important economic reforms. He is the only king of Poland ever to be named the “Great”.

114 It was the introduction to the privilege issued by Kazimierz the Great in which the Stat­

ute of 1264 was mentioned. The King also issued his decree concerning a settlement policy. On the basis of this decree the inhabitants of Western Europe could settle in Poland according to the so called Magdeburg’s law with a right to retain their customs, on condition that they would take an oath of allegiance to the Kingdom of Poland. On the basis of this act, which had a validity in international law, on the territory of the Polish monarchy settled different people from Western Theprivilegeof BolesławPobożnydid not includesome articles contained in the Austrian, Hungarian and Bohemian privileges, theoneswhichconcerned the level of interest on lent money.Butin general it stillseems thatatleast part of the Boleslaw Pobożny privilegewas a little aheadof therealities ofeconomic life in the Duke’s land, especially as far asthe financial matters of Silesia were concerned. Instead of describing the existing situationtheprivilege seemed to form alegislativeblueprint for development of the Jewish kahals in the areas beyond theone in Kalisz. The priv­

ilege issuedfor theKalisz kahal was thus treated as a document issued to all Jewish kahals under the Duke’s jurisdiction. From nowon they couldfreelydevelop in the wholeofWielkopolska, for instance insuch placesas Poznań, Pyzdry and Gniezno.

Theoriginal privilege of1264 had36articles, but neither the originaldocument nor the copiesof ithave been preserved. The documentassumed officially the char­

acter of a general privilege when itwasconfirmed in a slightly altered form by Kazi­

mierz the Great in 1334, the king who unitedthe country afterthe patrimonial divi­ sions and established Poland firmlyin the international area as a serious player.113 Thelegal status of Kazimierz the Great’s confirmationwas higher than the Duke’s statute, andits international significance wasalso more important.114

134 2. The original Jewish legal position in the Polish Kingdom

There was a new introduction added to the original privilege of Boleslaw Pobożny of 1264, declared as a general one. The king’s privilegeof 1334 indicated that this was a confirmationof an earlier document, confirmed again in 1364 and 1367.115 But the text of the 1367 confirmation was different fromthe original version and interpolated. In fact it is generally believed to be a forgery, introducing strik­

ingly new and unusual rights, such astheright to acquire a propertyof Christians for unpaid debts.116 Despite theseinterpolations the king KazimierzJagiellończyk con­

firmed it in 1453 in twoversions. On August 13 theprivilegewas granted for Greater Poland (Wielkopolska), on August 15 forLesser Poland (Małopolska). A year later both these privileges - as already mentioned - were annulled. But the circumstances ofthe annulmentwere unclear. Both privilegeswere confirmed again in aversion of 1334.'17

Europe, among these the Sephardic Jews from Spain coming mainly via Orient, the Germans from the Holy Roman German Empire, as well as the Englishmen, Frenchmen, Belgians or Dutch.

115 B. D. Weinryb, The Jews of Poland. ..,p. 339 ; S. Kutrzeba, Historia źródeł..., Vol. 2, p. 298.

116 S. Kutrzeba, Historia źródeł..., pp. 300-301.

117 Ibid., p. 302.

118 A. Polonsky, The Jews of Poland and Russia. Vol. 1, p. 43; also S. Lazutka, E. Guda- vicius, Privilege to Jews Granted by Vyatautas the Great in 1388, Jewish University in Moscow, Moscow-Jerusalem 1993.

Lithuania accepted officially Christianity as part of the union with Poland, but its impact was visible within a very narrow circle of the elites, with the country itself still, for a long time, attached to the ancient, local faiths.

The general charter of BoleslawthePious from 1264, in the versionconfirmed by Kazimierz the Great, was also accepted as the basis of the charter of the Grand DukeWitold issued to the Jews ofthe GrandDuchy of Lithuania in 1388, just three years afterthepersonal Polish-LithuanianUnion of 1385wasestablished. Thechief impulse towards obtaining privileges andautonomousstructuresin Lithuania came from the long established cooperationwith the Jews of Poland. The successivere­

modeling of different documents stemming from this general one of 1388 were absolutely necessary. Lithuania was united with Poland only by the person of the monarch, retaining all itsfundamental differences. It had its own institutions, laws, characteristic customsandmores which varied still further between different prov­ inces of Lithuania, a vast, expansive conquering country which devoured during the two centuries before the union with Poland large chunks of the eastern lands, subjugating their recalcitrant people and formingalarge, even if shakysuperpower, apeculiarmelange of Western andEasterncharacteristics.118

The two countries, forming one of the largest European states, were strikingly different in culture, religion and a host of other characteristics.119 That is why the charter granted by Witold in 1388, officially to the Jews of Brest and Troki, still evidently based on western models foraclass ofJews largely engaged in money- -lending, had soon to be modified in otherplaces to fit thelocalconditions. The char­

2. The original Jewish legal position in the Polish Kingdom 135 ter of Grodno granted on June 18, 1389, and confirmed slightlychanged in 1408, was alreadydifferentin character.It shows thatthemembers of the Jewish commu­ nity there engaged in various occupations, including agriculture, a rarity in Poland.

The charter of 1389 indicated that the Jews ofGrodno, the official residence ofthe Grand Duke Witold, had lived there for many years,owning land and pos­

sessing a synagogue withacemeterynearthe Jewish quarter.Theyalso engaged in handicrafts and incommerce onequal terms with the Christians.From the begin­

ningthe Jewish Lithuanian charters were exhibiting theirownpeculiarities. In time suchdistinctive features became evenmore manifest inthe later confirmations of these early privileges. They simplyhad to conform to the needs and vicissitudes ofthe GrandDuchyof Lithuania. Themain privilege of1388 wasthen confirmed in 1507 byZygmunt I the Old in his capacity as the GrandDuke of Lithuania,just ayear afterhis accession tothe Polish throne in 1506.120 He had already accepted theconfirmation of theJewishprivilege given by King Alexander I in 1505 inthe Kingdom ofPoland.121

120 In Lithuania, between 1507-1514 Zygmund I the Old has granted separate privileges to the Jewish Kahals in Grodno, Pińsk, Ostróg, Tykocin, Kabryń. They “became the basis of the Jew­

ish laws in Lithuania [and] in 1529 the norms contained in them were incorporated into the First Lithuanian Statute” (A Code of Laws), see Z. Borzymińska, E. Świderska, A. Żbikowski (ed.) Dzieje Żydów w Polsce - Kalendarium (The History of Jews in Poland - A Chronology), Warsaw 1993, p. 20.

121 A. Polonsky, The Jews of Poland and Russia. Vol. 1, pp. 76-82, 43; ‘Lithuania’ in I. Singer et al. (eds.), The Jewish Encyclopedia, Vol. 8 (1904), at <http://www.jewishencyclo- pedia.com/articles/10033-lithuania>, 2 January 2012; S. Lazutka, E. Gudavicius, Privilege to Jews...', S. Kutrzeba, Historia ustroju Polski w zarysie, Vol. 2: Litwa (History of Polish Govern­

ment in an Outline, Vol. 2: Lithuania), Księgarnia Polska Bernarda Połonieckiego, Lwów 1921.

122 The English text of the privilege is taken from R. Chazan (ed.), Church, State and Jew in the Middle Ages, Behrman House, New York 1980, pp. 83-93. The complete Latin text is in S. Grodziski, I. Dwornicka, W. Uruszczak (eds.), Volumina Constitutionum, T. 1, Vol. 2, pp. 151-156.

The charter of 1264 wasprepared bythe Jewish communityof Kalisz and pre­ sented to theruler. Duke Boleslaw thePious.TheJews wanted theprotectionof their rights guaranteed in the spheres most important for them. Such rights which were to befrom then on directly securedby the ruler includedanindependent jurisdiction separate from the municipal authorities, economic rights, security of persons and property, religious rights, and also a non-derogatory form ofthe so-called Jewish oath taken in courtproceedings in cases betweenJews and non-Jews. Bolesiaw the Pious declaredthat heprescribed forour Jews living throughout area of our domain these statutesand privileges which they have obtained from us.122

The Kalisz Privilege of 1264 asrepeated in the Statue of Laski of 1506, the gen­

eral code of laws for the Kingdom of Poland, gave the Jews there some important guarantees concerning the very legal proceedingsthemselves. The most important was a requirement of evidence against a defendant Jew in civil andalso criminal mattersin theformof theduty to present the common testimony of both a Jew and

136 2. The original Jewish legal position in the Polish Kingdom

aChristian. Thetestimony of a Christian was not enough.Thusarticle 1 declared “in cases involving money, or movable property, orimmovable property, or a criminal complaint touching the person or property of a Jew, no Christian shall be admit­ ted as a witness againstaJew unless there is a Jewish witness together with the Christian ”.123 Article 8 set up a separate Jewishjurisdiction in internal matters. It stated “if the Jewsengageinquarreling or actually fight among themselves the judge of our city shall claim no jurisdictionover them;onlywealone or our palatineof his judgeshall exercise jurisdiction. Ifhovewer, the accusation touches theperson, this

case shall be reserved for usalone for judgement” ,124 125

123 R. Chazan (ed.), Church, State and Jew...

124 Ibid.

125 Ibid.

126 Ibid.

Article 9 gave the duke’s Jewslegal protectionagainstanyChristianwho “should inflict any sort of wound on a Jew [ in whichcasehe] shallpaya fine to us andto our palatine, accordingto that which our grace decides [and] pay the person who has beeninjuredforthecareof hiswound andforexpenses, as the lawsof our land require and demand”. Article 10 declared “if a Christian should kill a Jew, he shall be punished with the proper sentence ", with confiscation by thedukeof all his mov­ able and immovable property. The duke also guaranteed the authority and efficacyof theJewish judicial systemby providing in art. 16-18 for fines, which should be paid tothe Jewish judge for disregarding his orders. Article 12 gave Jewstheunrestricted right to pass without any obstacles through the duke’s lands stating “wherever a Jew shall pass through our territory, no-one shallofferany hindrance to him or molest or trouble him. But at thesame timemerchants carrying any goods or otherthings [...] mustpay duty at all customsoffices ”.

In article 13 theduke prohibited any dutiesdemanded by his officialsfrom Jews

“transporting, as istheir custom, any of theirdead either from city to city, orfrom province toprovince, orfromoneland into another. Ifanyextortionby such acus­

tomofficial ever occurred we wishhim punished as a robber”.The next two articles protected the securityof the Jewishreligious sites againstsacrilege. Profanation or destruction ofJewish cemeteries or individualgraves were subjectto severe pun­

ishment including the confiscation of all property. Thus article 14 announced “if a Christian, moved byinsolence, shall break into or devastate the cemetery of the Jews, we wish that he be gravely punished according to the custom and laws of our land and that all his property, whatever it may be, shall be forfeited to our treasury”.ni Throwing stonesat synagogues was punished witha fine. Thus article 15 demanded “if anyone wickedly throws somethingat the synagogues of theJews, weorderthat hepays two talentsofpepper to our palatine ”.126

In cases ofthe treacherous assassination ofa Jew, when it was impossible to demonstrate the defendant’s guilt through witnesses and when the guilty man was subsequently captured, itwaspossible torestart the caseand to dispense justice and

2. The original Jewish legal position in the Polish Kingdom 137 mete out punishment accordingtothe law. This proceduralguarantee was givenin article 20 which stated"if aJew has secretly been murdered, and if through testimony it cannotbe determined byhisfriends who murderedhim, yetif after an investigation hasbeen made theJews begin tosuspectsomeone, weshallextend to theJews the protection ofjusticeagainstthesuspected murderer of the Jew, by meansof the law of such matters ”.127 In otherwordsinsuchcasestheprinciple ofan adjudicated case settled once and for all - res iudicata - did not stand, dueto noviterproducta seu no-viterreperta - newly producedornewly discovered evidence. Article21 protected Jews against violent acts by Christians who should be punished for them according to "the lawof our land”.

127 Ibid.

128 Ibid.

129 See for instance art. 10 and 11 related to economic activities in England between Chris­

tians and Jews in the Magna Charta Libertatum of 1215. They profited the king, since the law stated that if a Jew died with monies owed, the king had the right to collect the debt. During the reign of king John (1199-1216), he became indebted to the Jewish community,but treated Jews well, extending individual charters given to some, to all the Jews of England, also writing a sharp remonstrance to the mayor of London against the attacks on the Jews there and other cities. But af­

ter loosing Normandy and winning a feud with the Pope Innocent Ill he demanded in 1210 a huge sum from the religious houses of England and the Jews. But both John and the Jews, who were his bankers and the major source of revenue, recognized each other as important allies in the conflict between the king, the barons, and the municipalities of England, the conflict which eventually led

Cases against Jews wereto be adjudicated near the synagogues or laterin Jewish schools, or in places where therabbinate courts took place. Courtproceedings with Jews could not take place during aJewish holiday. The only exceptionwas a case adjudicated by the king or the voivode. Thus article 22stated "the Jew oughtto be

Cases against Jews wereto be adjudicated near the synagogues or laterin Jewish schools, or in places where therabbinate courts took place. Courtproceedings with Jews could not take place during aJewish holiday. The only exceptionwas a case adjudicated by the king or the voivode. Thus article 22stated "the Jew oughtto be