Sicaricon

Sicaricon (Hebrew: סיקריקון‎), literally "usurping occupant; possessor of confiscated property; the law concerning the purchase of confiscated property" (now obsolete), refers in Jewish law to a former act and counter-measure meant to deal effectively with religious persecution against Jews in which the Roman government had permitted its own citizens to seize the property of Jewish landowners who were either absent or killed in war, or taken captive,[1] or else where Roman citizens had received property (real estate) that had been confiscated by the state in the laws prescribed under ager publicus,[1][2] and to which the original Jewish owners of such property had not incurred any legal debt or fine, but had simply been the victims of war and the illegal, governmental expropriation of such lands from their rightful owners or heirs. The original Jewish law, made at some time after the First Jewish-Roman War with Vespasian and his son Titus,[3][4] saw additional amendments by later rabbinic courts, all of which were meant to safe-guard against depriving the original landowners and their heirs of any land that belonged to them, and to ensure their ability to redeem such property in the future.

Etymology

The origin of the word sicaricon (or saqrīqūn) is now obscure. The word is believed by some to be a corruption of the Greek word χαισαρίχιον, or what is called in Latin caesaricium.[5] Others, namely, Heinrich Graetz and M.S. Zuckermandel, think the word to be derived from Sicarii, a group associated with murders, brigandage and robbery during the Second Temple period.[6] Hai Gaon also thought that the word Sicarii refers to government personnel involved with implementing the laws of Sicaricon.[7] However, the Sicarii are largely mentioned in regard to assassinations, and there is no historical evidence to connect them with the expropriation of land.[8] The author of Sefer Arukh brings down a different interpretation, saying that the word is merely an acronym for: שא קרקעי והניחני (= "Take my land, but leave me alone"), a view supported by Talmudic exegetes, Rashi and Solomon Sirilio.[9] Isaac ben Melchizedek, echoing the same view, held that sicaricon were hired "hitmen," sent to embezzle the original landowner of his property at the threat of death.[10] In any case, the word unanimously refers to a Roman or foreign molester who expropriates land from its Jewish owner, usually by a decree made by a tyrant king (Caesar).[11]

Status of sicaricon during the war

During the height of the Jewish war with Rome, and especially after Caesar (Vespasian) had given order that all Judea should be exposed to sale (The Jewish War, VII.6.6 [VII, 216]; 5:421),[12] the law of "the usurping occupant" did not apply to cases where the Jewish landowner in Judea was compelled to relinquish his property to a Roman tenant (usually a farmer) or to face death.[13] Several reasons are given for this, one of which being that the Roman authority had given license to kill Jewish property owners during the war, and therefore, to avoid death, the Jewish landowner was seen as willingly disposing of such property in order to save his own life.[14][15] Such transactions in Jewish law were deemed as valid,[16] since one's intent under such pressure is real and without pretense. In yet other instances, some Jewish landowners never despaired of retrieving their stolen property, so that whenever the sicaricon took away their field and sold it to another, the original landowners would come along and forcibly take it away from those to whom it had been sold, until at length no one dared buy from the sicaricon for fear of being confronted by the original property owners, leaving the entire country of Judea in the hands of the sicaricon and seemingly irredeemable.[17]

First enactment

After the war, and in those cases where the Israelite owners were slain in battle, the rabbinic court in Israel began to apply the laws of "usurping occupant," since no longer did the Roman authority give licence to kill Jewish property owners,[18] while the heirs of such property were, in turn, no longer fearful of being killed and could seek legal redress for the restoration of such property.[18] This enactment was also made to ensure the continued Jewish settlement in the towns and cities across Judea, a country then largely occupied by the sicaricon.[19] Any prospective buyer of such expropriated land was first required, by rabbinic edict, to gain the willful consent of the land's original owner, or of his heirs, before he could legally purchase the field held by a sicaricon. The original Jewish owner, or his heirs, retained the right of first refusal. In so doing, the buyer did not appear to give a semblance of legitimacy to the Roman law.[20] However, had he bypassed the original landowner and broached the issue of buying the property first with the "usurping occupant," even if the original landowner should later give to him his consent, the transaction is considered null and void and can be challenged by the original owner in a court of law, who can claim that he only gave his consent to satisfy the usurping occupant, but in reality he was never pleased with the sale.[21] Primacy is given to the original landowner to reclaim such property, or at least to give his consent to the sale of property held by the sicaricon before it is reclaimed by another.

If, however, the original owner or heirs were never consulted about selling their property and the buyer made the transaction between himself and the sicaricon alone, yet the usurping occupant gave to the original owner the payment which he received from the buyer, and the original owner accepted it, the transaction is deemed as valid.[22] Likewise, if the field in question was seized in consequence of a debt or fine by its original owner (insolvency), or as payment for damages, the current holder of the field cannot be divested of his property.[23] The laws concerning sicaricon did not apply to chattels (movable property).

Second enactment

The first enactment was later amended to better ensure compensation to the original owners or heirs of the field. The new enactment required that any prospective buyer of a field known to have been confiscated and held by a "usurping occupant" after the first Jewish-Roman war must, upon purchasing the field, give to the original owner of the property (or to his heirs) either a quarter of the land that is reclaimed, or else one-third of the purchasing price.[24] According to Ha-Meiri, this is made payable by giving to its original owner 100 for a field that is offered by the "usurping occupant" at 300; one-hundred being one-third of 300, and one-fourth the original cost of the field before its depreciation.[25] The original owner may accept either money or land at the said rate of compensation. This enactment was made in consideration of the fact that the sicaricon (usurping occupant) had presumably depreciated the value of the real-estate to the value of three-fourths of its original cost, since he had obtained the field without cost and would incur no loss had he sold the field at a bargain price. This rule applies when the original owner or heirs are in no position to buy the field for themselves, which if they were, they would have the right of preemption. For example, if a field was sold by the sicaricon at thirty denarii, the purchaser must give ten denarii in remittance to the original owner or heirs of the field, since it is generally assumed that the value of the field was originally appraised at forty denarii.[26]

Third and final enactment

In the days of Rabbi Judah HaNasi (others say, in the days of Rabbi Yehoshua),[27] the rabbis convened a court where it was decided by vote that any man could secure the title to a field held by a sicaricon (usurping occupant) after the field had been in the possession of the "usurping occupant" for at least twelve months without it being redeemed by its original owner, provided that he gives a quarter of the purchased field or the monetary equivalent of one-third the cost of purchase unto its original owner or heirs.[28] This enactment is believed to have been the result of certain decrees made by Pertinax and which affected all territories falling under Roman suzerainty, including Judea.[29] The novelty of Rabbi Judah HaNasi's enactment is that after twelve months, no longer would it require the consent of the original land owner to buy a field held by a sicaricon.[30] If the sicaricon agrees to sell the field, a quarter of the field or else one-third of its purchasing cost must be given by its buyer to the original owner.

See also

• Ager publicus
• Confiscation
• Ius in re
• Mosaic of Rehob
• Ottoman Land Code of 1858
• Res derelictae
• Usucapio
• Usucaption

References

1. The Mishnah (ed. Herbert Danby), Oxford University Press: Oxford 1977, s.v. Gittin 5:6, p. 313 (note 6)
2. Josephus alludes to this law in The Jewish War, VII.6.6 (VII, 216), where he says that "Caesar (Vespasian) gave order that all Judea should be exposed to sale." Although not conclusive, Emil Schürer thinks that this may have referred to the lease of confiscated Jewish property by non-Jewish tenants (farmers), with the money accruing unto the Roman treasury. See: Emil Schürer, Die Gemeindeverfassung der Juden in Rom in der Kaiserzeit (The Congregation of the Jews in Rome in the Imperial Age), Leipzig 1878, v. i p. 640. See also term, ager publicus, in Adolf Berger's Encyclopedic Dictionary of Roman Law, vol. 43, part 2, Philadelphia 1980 ISBN 0-87169-435-2, p. 357. Berger, citing Charles Giraud (Recherches sur le droit de propriété chez les Romains, p. 163), writes that in such cases the lessee paid monies for the lease either in periods of five years (quinquennial leaseholds) or perpetually, i.e. , by emphyteutic lease or copyhold. From these lands the Roman treasury (fiscus) received an income of from one-tenth to one-fifth of the annual crops.
3. Such is the opinion of Talmudic exegete, Rashi (1040–1105), and Maimonides (1138–1205), as well as the historian, Heinrich Graetz (1817–1891), although Israeli historian and Israel Prize laureate, Shmuel Safrai (1919–2003), thought that the sicaricon laws were initiated only after the Second Jewish-Roman War with Hadrian in around 120 CE (see: H. Graetz, Das Sikarikon-Gesetz [The Sikarikon Act], Breslau 1892).
4. Cf. Encyclopedia Judaica, vol. 2, Keter Publishing House: Jerusalem 1971, p. 395 (s.v. Agriculture), where it writes: "Josephus relates that, after the destruction, Titus issued a decree expropriating Jewish landholdings which he ordered sold or leased out (Wars, 5:421). At first these lands were acquired mainly by Gentiles who leased the plots to the former Jewish owners, and these later tried to buy back their land. To assure the restoration of the lands to their former Jewish owners, the talmudic sages enacted ordinances forbidding competition and speculation in land (BB 9:4; TJ, Ket. 2:1, 26b; Git. 52a, et al.)."
5. Marcus Jastrow, Dictionary of the Targumim, the Talmud Babli and Yerushalmi, and the Midrashic Literature (2nd edition), Massachusetts 2006, p. 986, s.v. סיקריקון
6. Heinrich Graetz, Das Sikarikon-Gesetz [The Sikarikon Act], in: Jahresbericht, Breslau 1892; Tosephta - based on the Erfurt and Vienna Codices (ed. M.S. Zuckermandel), Jerusalem 1970, Appendix (p. LXXVIII), where he writes for the word in the glossary: "sicarii mit Beil bewaffnete" (Sicarii armed with hatchet). See also Daniel Sperber, A Dictionary of Greek and Latin Legal Terms in Rabbinic Literature, Bar-Ilan University Press: Ramat-Gan 1984, pp. 120–121, who takes the same view.
7. Rabbi Hai Gaon's Commentary on Seder Taharot, cited in Babylonian Talmud (Niddah Tractate), s.v. Mishnah Makhshirin 1:6; also in The Geonic Commentary on Seder Taharot - Attributed to Rabbi Hai Gaon, vol. 2, Berlin 1924, s.v. סיקריקין.
8. Encyclopaedia Judaica, vol. 14, Jerusalem 1996, p. 1530, s.v. sikarikon ISBN 965-07-0242-3
9. See Rashi's commentary on Babylonian Talmud, Gittin 55b, and Solomon Sirilio's commentary on Jerusalem Talmud, Bikkurim 1:2, s.v. סקריקון
10. Ben Melchizedek, I. (1975). Nisan Zaks (ed.). Mishnah Zera'im, with the Commentary of Ribmaṣ (in Hebrew). Jerusalem: Makhon ha-Talmud ha-Yisraeli ha-Shalem. OCLC 745167494., s.v. Bikkurim 1:2 (p. 404)
11. Tosafot RID (Isaiah di Trani on Gittin 55b; Rabbi Nathan ben Abraham on Mishnah Bikkurim 1:2, Maimonides on Mishnah Gittin 5:6, et al.
12. Josephus, The Jewish War 7.216. The Greek word used to describe the phrase "exposed to sale" (Gr. ἀποδόσθαι) has also the connotation of lands leased upon payment. Latin: Jus in re aliena.
13. Mishnah Gittin 5:6; in Danby's edition of the Mishnah, p. 313.
14. Babylonian Talmud, Gittin 55b, Rashi ibid., s.v. כל דלא קטיל.
15. Menachem Meiri, Beit Ha-Bechirah (Gittin 55b, s.v. אמר המאירי), Jerusalem 2006, p. 129 (Hebrew)
16. Maimonides, Code of Jewish law (Hil. Gezelah we'avedah 10:1-3)
17. Jerusalem Talmud (Gittin 5:7, 31b), explanation given by Talmudic exegete, Moses Margolies, in his commentary Pnei Moshe.
18. Meiri on Babylonian Talmud, Gittin 55b
19. Tosefta, Gittin 3:10–11
20. Isaiah M. Gafni, Land, Center and Diaspora (Jewish Constructs in Late Antiquity), Sheffield 1997, p. 68
21. Rabbi Yom Tov Asevilli on Gittin 55b, s.v. מתני (p. 75, note 545); Rashba
22. Rabbi Yom Tov Asevilli on Gittin 55b, s.v. מתני (pp. 75–76, note 546)
23. Maimonides, Code of Jewish law (Hil. Gezelah we'avedah 10:1–2).
24. Mishnah Gittin 5:6 (other editions, 5:7); Maimonides, Code of Jewish law (Hil. Gezelah we'avedah 10:3)
25. Meiri (2006). Daniʼel Biṭon (ed.). Beit HaBechirah (Chiddushei ha-Meiri) (in Hebrew). 5. Jerusalem: Mekhon ha-maʼor. p. 130. OCLC 181631040., Gittin 55b, s.v. נשוב
26. Mishnah - with a Commentary of Rabbi Moses ben Maimon (ed. Yosef Qafih), vol. 2, Mossad Harav Kook: Jerusalem 1965, s.v. Gittin 5:6 (p. 152)
27. Thus is it explained in Mishnah Gittin of the Jerusalem Talmud, Leiden MS., according to Shmuel Safrai (see: "Sikarikon," ed. Shmuel Safrai, Zion, pub. by Historical Society of Israel, 1952, pp. 57 [2]–58 [3] [Hebrew]). This view seems to have been rejected, since the Gemara of the Jerusalem Talmud states explicitly that Rab, a disciple of Rabbi Judah HaNasi, was present in the court when this final enactment was made.
28. Mishnah (Gittin 5:6)
29. See pp. 7–8, 18–20 in: Benovitz, Moshe (2004). "'It was taught bish'at herum': The First Act of the Emperor Pertinax (193 CE) and its Impact on Tannaitic Halakha / (193". Sidra: A Journal for the Study of Rabbinic Literature: 7–23. JSTOR 24345785. (Hebrew)
30. Cf. Shulhan Arukh (Ḥoshen Mishpaṭ 236:1)

External links

• Land tenureship in Roman law, Perseus