The Nakdan of Oxford & the limit of sovereign power in medieval England

Tuesday, 3 September, 2013 - 9:43 pm

Two great Jewish scholars lived in 13th century Oxford: Rabbi Moses of London (d. 1268) and Rabbi Berachya ben Natronai Ha-Nakdan. They were both famed for their contribution to the cantellation of the Hebrew Scripture and would have likely been of great value to the fledgling university in Oxford that was already a seat of theological study since 1096, even though the first formal college - Merton College - only opened in 1265.


Moses of Oxonfort


Rabbi Moses of London was born and raised in Oxford. He was thus formerly known as Moses of Oxenfort (Oxford), and was son of Rabbi Yomtov, who had a house in the Jewry together with his grandfather Moses of Bristol, who came to Oxford at the turn of the century. Moses of Bristol was a descendant of Rabbi Shimon the Great of Mainz, one of the authors of the poems in the prayer book, and relative of principle Biblical and Talmudic commentator Rabbi Shlomo Yitzchaki, known as Rashi (d. 1105).


Rabbi Moses of London’s scholarship is evident by the grand appellation ‘the mighty one of the world’ given to him occasionally in rabbinical works. He is author of Darchei Hanikud Vehaneginot (a system of punctuation and notation, on the vocalisation of the Torah) and his Jewish legal opinions are cited in prominent Jewish legal compendium Mordechai, named after the author, who was killed in the Rintfleisch massacres in 1298 (Perek Hasocher). Moses’ primary teacher of the Torah was his father Rabbi Yomtov, as well as Tosafist Rabbi Shimshon ben Avraham of Shantz, known as Rash mi'Shantz, and Rabbi Benjamin of Canterbury (or according to some, Cambridge). Although Moses’ scholarship seemed to have been very broad, his main expertise seems to have been in the logic and system of the punctuation and notations of the Torah. For this purpose he is titled in his work Darchei Hanikud Vehaneginot Rabbi Moses Hanakdan.


Berechya ben Natronai Ha-Nakdan


Another eminent scholar of the medieval period in Oxford was Rabbi Berechya ben Natronai Ha-Nakdan (13th century), author of Mishle Shualim (Fox Fables), Manuscripts of which exists at the Bodleian Library (Neubauer, Cat. Bodl. Hebr. MSS. No. 1466, 7). Another work of his is Sefer Hachibbur, The Book of Compilation, on the works of Saadia Gaon, Bahya ibn Pakuda, and Solomon ibn Gabirol. This is quoted by Rabbi Moses ben Issac ha-Nessiah of London, in his Sefer ha-Shoham, part of which was published at Oxford in 1882. Rabbi Berechya is nephew of Rabbi Benjamin of Canterbury, who is often quoted in medieval Rabbinical writings, including leading English 13th century Rabbi, Elijah Menachem of London.


In this essay we will explore a particular teaching identified with a medieval anonymous Rabbi called simply The Nakdan or Ha-Nakdan quoted in a discussion in the medieval Tosefot commentary on the Talmud Sanhedrin 20b. This finding is pointed out by German Reform Rabbi and founder of Wissenschaft des Judentums (Jewish studies), Leopold Zunz (1794-1886), claiming that this teaching is attributed to Rabbi Berachya ben Natronai Ha-Nakdan of Oxford. He has good reason for this claim as the rabbi that is most associated with the name Ha-Nakdan appears to be Rabbi Berechya ben Natronai Ha-Nakdan. This assumption is also quoted by Cecil Roth in his book Jews of Oxford.


We will attempt to elucidate this interesting opinion cited by Ha-Nakdan in the Tosafot and explain the unique context of medieval England, particularly in Oxford, that would have given rise to his opinion, and also thereby suggest albeit inconclusively that there is a strong possibility that the author of this opinion of Ha-Nakdan is not actually Rabbi Berachya, as Zunz suggests but rather Rabbi Moses of London, formerly Moses of Oxford, who would possibly have been more suited to offer an opinion on the subject.


Talmudic dispute on the limits on sovereign power


The Talmud in the tractate of Sanhedrin (20b) debates the extent of the power of the king according to Jewish law. The dispute centres on the verses in I Samuel (8:11-17), where Samuel, confronted by the request of the nation of Israel for a king, agreed to appoint one, but first enumerated many powers that the king would have. These include involuntary conscription in the king’s service, confiscation of lands and various taxes.


The question that the Talmud is posing is whether the powers that the Torah speaks of in the Book of Samuel are a sanctioning for these powers or a threat to deter the people from requesting a king. The Talmud presents two opinions on this subject. “Rabbi Yehudah said in the name of Shmuel every power enumerated in the portion of the king, the king is permitted to exercise. Rav said in reality a king may not exercise any of those powers, for that portion was stated only to place the fear of the king upon the people, as it says (Deuteronomy 17:15) “You shall surely place a king upon you”, which means that the fear of the king shall be upon you.


The reasoning for the opinion of Rav is explained in the commentary on the Talmud Yad Ramah by Rabbi Meir ben Todros HaLevi Abulafia (c. 1170 – 1244, Burgos, Spain) as follows. Since many of the people that petitioned Samuel for a king were boors, who desired a king merely to emulate the surrounding people, it was necessary for Samuel to instil in them the proper feelings of fear and awe towards their king. Hence Rav maintains that Samuel’s words were an attempt to accomplish that goal.


The Talmud proceeds to point out that a teaching of the Beraisa from the Mishnaic period contains a similar dispute between two Tannaic sages. Rabbi Yose says the king is permitted to exercise every power enumerated in the portion of the king. Rabbi Yehudah says in reality a king may not exercise any of those powers, for that portion was stated only to place the fear of the king upon the people, as it says (Deuteronomy 17:15) “You shall surely place a king upon you”, which means that the fear of the king shall be upon you. According to the Talmud, the sage Shmuel contend that the powers of a king is not just to enforce law and order but includes involuntary conscription in the king’s service, confiscation of lands and various taxes.


Maimonides rules granting extensive sovereign power


The great Jewish medieval legalist and codifier Rabbi Moshe ben Maimon, known as Maimonides, in his legal work Mishneh Torah (laws of kings 4:1-7) follows the opinion of Shmuel that the king indeed has broad powers. Maimonides writes:

The king is granted license to levy taxes upon the nation for his needs or for the purpose of war. He may also fix a duty on merchandise. It is forbidden to avoid paying this duty. The king has the right to decree that if someone does not pay these duties, his property will be seized or he will be killed. These laws are derived as follows: I Samuel (8:17) states: 'You will be servants to him, the king.' Previously, Deuteronomy (20:11) states: 'They shall be subject to your levy and they shall serve you.' From this association, it is derived that the king may levy taxes and fix duties. He may also send throughout the territory of Eretz Yisrael and take from the nation valiant men and men of war and employ them as soldiers for his chariot and cavalry. Similarly, he may appoint them as his body guard and as footmen to run before him. He may also take the choicest of them to be his servants. Similarly, he may take all those that are necessary for him from the nation's craftsmen and employ them to do his work. He must pay their wages. He may force those who are fit to serve as officers, appointing them as leaders of thousands and leaders of fifties as ibid.:12 states: 'He shall appoint them as leaders of thousands and leaders of fifties for himself.' He may take fields, olive groves, and vineyards for his servants when they go to war and allow them to commandeer these places if they have no source of nurture other than them. He must pay for what is taken. This is stated in ibid.:14: 'He shall take your good fields, vineyards, and olive groves and give them to his servants. 


In summary, Maimonides writes (4:1):The statutes that he establishes in these and related matters are accepted as law for all the matters mentioned in the Biblical passage concerning the king are rights to which the king is entitled.


In medieval times, particularly in medieval England where a system of a powerful monarch was established, the resolution to this question related to the Biblical rights and extent of the power of the king would have been of great interest with practical application to the Jewish community; does a king have broad powers to confiscate lands and issue exorbitant and sometimes random taxes or would the king be violating the Hebrew Bible?


It would appear that this question is settled following the opinion of Shmuel in the above Talmudic reading. Indeed, as stated above, Maimonides follows the opinion of Shmuel over the opinion of Rav in the case of the power of a king, granting the king all the powers mentioned in the passages in the book of Samuel. Rabbi Joseph Karo (1488-1575) in his commentary on Maimonides Kesef Mishneh points out that the Talmudic principle that states when there is a dispute between Rav and Shmuel the Halachah follows Shmuel in monetary affairs, in which he was considered the greater expert, is applicable in our case, hence the ruling of Maimonides.


In another commentary to the above text of the Mishneh Torah, Rabbi Dovid ben Zimrah (d. 1573), known as the Radbaz, concedes even further. He indicates that the above ruling of Maimonides following the opinion of Shmuel granting broad powers to a king is based on a well known Jewish legal dictum by the same Shmuel mentioned elsewhere in the Talmud (Gittin 10b): “Dina d'malchuta dina,” the law of the land is the law. This principle then, according to Radbaz, would be the basis for the obligation of a Jewish citizenry to have to accept the power of a king even if he were non-Jewish.


Nakdan limits sovereign power


The subject of our essay is pertaining to an aspect of the power granted to a king relating to confiscation of land in particular. Although we have clarified that the opinion of Shmuel would have been seen as the ruling one, granting extraordinary powers to the king, the major medieval commentary on the Talmud, called the Tosafot (literally meaning addition) seeks to clarify what limitations exist, if any, for a king to confiscate privately owned lands. This is where the medieval English Rabbi “Ha-Nakdan” is consulted.


The discussion of the Tosafists, authors of the Tosaft, is introduced by a question from a comparative text in I Kings (21:1-29). It relates how the King of Samaria Ahab asked to purchase a vineyard belonging to Naboth that was located next to Ahab’s palace in his hometown of Jezreel. When Naboth refused to sell the vineyard of his inheritance, Ahab, instigated by his wife Jezebel, had him killed and seized the vineyard. Subsequently, Ahab was harshly punished by G-d through the prophet Elijah Hatishbi for seizing the vineyard. The Tosafist asks: if kings have in reality the power to confiscate land, following Shmuel’s opinion, as sanctioned in the book of Samuel, why was Ahab punished? He was well within his sovereign right to seize a vineyard from a subject.


The Tosafists proceed to present six answers to this question thereby stating that the Torah in fact greatly limits the powers of the king to confiscate privately owned land. The first answer presented by the Tosafists, anonymously, is a king may only seize land to be given to his servants but not for himself, as indicated in I Samuel (1:8) “He may take and give to his servants”. Rabbi Yonah ben Abraham of Gerona, known as Rabeinu Yonah (d. 1263), explains that this is referring to the right of a king to reward servants for their participation in the king’s wars but not that he may seize land at will.


A second answer is, in the case of Ahab he was permitted to take the land without paying, but since he asked Naboth to sell it to him Naboth thought he had permission to refuse to sell. This, therefore, restrained the king’s power to seize the property even if the sale was refused by Naboth. This answer seems to imply that the king has the power to seize land at will for himself but the power is revoked once he requests permission.


A third answer is Ahab was punished for the use he intended for the vineyard, namely idol worship. According to this answer the sovereign right of a king to confiscate land is even if it is for his own use and even he first shows courtesy by asking. The problem is only how he intends to put it to use.


A fourth answer is presented by the Nakdan, the punctuator.  The Nakdan answers that it is only permitted for a king to confiscate private land when the land is distant from the city and not of great value. However, this was not the case with Naboth’s vineyard which was situated next to Ahab’s palace in Samaria. It is interesting that the Nakdan’s answer appears to reflect an intrinsic limitation of the power of the king to confiscate land. Whereas the first three answers apply a subjective limit on the power of the king in relation to confiscating land - the use of the property, whether for himself or his servants, permitted or prohibited use - the answer of the Nakdan applies a limitation on the type of land itself that may or may not be confiscated; land that is distant from the city may be confiscated whereas land in the city may not.


A fifth answer is that land in a person’s possession by acquisition may be confiscated, whereas inherited land may not. In the case of Ahab and Naboth, the vineyard was indeed an inheritance, according to the Scripture; the king therefore did not have the power to seize such a property. This is indicated in the response of Naboth to Ahab: “it would be sacrilege for me to give the inheritance of my father to you”. 


A sixth answer is that the text about the power of the king in the book of Samuel is only concerning a king that rules over both the people of Judah and Israel, and rules by the word of G-d, whereas Ahab, as a king of Samaria, did not rule over Judah and was not sanctioned by G-d.


It appears that the Nakdan is the author of not just the third answer but also the subsequent answers, five and six. It is thus possible to see the escalation of the restrictions to the power of the king in the last three answers. Whereas the first two suggest an objective limitation to the power to confiscate land due to location of the land and method of ownership, acquired or inherited, the third implies that a king intrinsically does not have the power to confiscate land by his mere appointment as a king. He would need to be ruler of both Judea and Samaria and sanctioned by G-d, and even then his powers are limited in relation to the kind of property he may confiscate, as per the other non-mutually exclusive answers.


From the above, then, it seems that the Nakdan is taking a distinct view on this topic. Even if we follow the view of Shmuel that the portion of the powers of the king in I Samuel are literal, it is still severely restricted and actually has no bearing on reality regarding a king who does not fall into the narrowly described categories above. It would seem then that the view of the Nakdan is that a non Jewish king in fact has no Biblical right to confiscate land at all from a private citizen, certainly not for himself and not even to reward his servants.


This subject would have been extremely relevant to medieval England, including Oxford, where the land and homes of Jews were confiscated first by King John in the beginning of the 13th century, due to extortionate tallages of £44,000 in 1210, thereby decimating the Jewish community; the Jewish community was crippled a second time under Henry III in 1239, after a number of years of stability, to placate the Barons and maintain popular support, and a third time under Edward I which culminated in the expulsion of the Jews in 1290 and the confiscation of all their property.


If the Ha-Nakdan of our Tosafot lived in Oxford, England in the 13th century he would have been addressing not just a minute detail in Jewish law but reflecting the very real and distressful life he would have had to endure at the hands of arbitrary, many times irrational and anti-Semitic kings of medieval England.


Berechya Ha-Nakdan or Moses Ha-Nakdan?


Based on the above discussion, I would like to argue that there is good reason to suggest that the author of this teaching by Ha-Nakdan in the Tosafot would have been Rabbi Moses HaNakdan, son of Rabbi Yom Tov of Oxford, grandson of Moses of Bristol, as opposed to Rabbi Berachya Ha-Nakdan, as suggested by Leopold Zunz. As demonstrated in length above, the subject of this teaching pertains to the sovereign right to confiscate land. This would have been more relevant to the illustrious family of Moshe Ha-Nakdan, or Moses of London, formerly Oxford, as his family owned extensive land in Oxford, and was one of the great financiers of the day. Although this could have been the case with Rabbi Berachya Ha-Nakdan, who might also have been concerned with the plight of the Jews of his day in Oxford, he does not seem to appear in the Rolls as having been a financier or a property owner.


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