Chapter Three
THE LEGAL POSITION OF JEWS IN CHRISTENDOM
WE CAN CONCUR that legal status is “the most deceptive of all standards of a people’s well-being,” as R. W. Southern writes in his Making of the Middle Ages.1 Inevitably, there is a gap between theory and practice; and this was certainly true for the Jews in the Middle Ages. Nevertheless, a discussion of the legal position of Jews in a work such as this belongs near the beginning, because, alongside religion, legal status is the earliest aspect of the problem of gentile-Jewish relations that we can know with clarity. Moreover, since this book is a comparative study, the inquiry into legal position yields more useful information than might otherwise be the case.
There are many similarities between the legal status of the Jews of Islam and that of the Jews of Christendom. The most important similarity is that, in both societies, Jews enjoyed virtually complete autonomy in their practice of Judaism. In practical terms, this meant that, for most purposes of religious and personal status, such as ritual, marriage, and divorce, Jews were governed by Jewish law—the law of the Talmud—administered by Jewish judges trained and licensed by Jewish religious authorities.
Differences in legal status between Christendom and Islam reflected or helped shape the dominant society’s contrasting attitudes toward the Jews. Along with differences in religious attitude between early Christianity and early Islam discussed in Chapter 2, the differences in legal approach help explain the lower incidence of persecution in the Muslim world. In Chapter 3, we review the rather complex legal status of the Jews in Western Christendom, to prepare the way for an analytical comparison with the legal position of Jews in Islam (Chapter 4).
The great legal scholar Guido Kisch has plumbed the subject of Jewish legal status.2 He gave the useful name “Jewry law” to Christian legal material concerning the Jews. In this way, Kisch distinguished “Jewry law” from “Jewish law,” the term used for the vast corpus of legal matter written by Jews themselves which pertained to inner Jewish life and to the relationship of Jews to their surroundings.
The Christian Middle Ages knew numerous and sometimes overlapping systems of law. There was surviving Roman law in the age of the Barbarians; Germanic tribal or customary law; revived Roman law beginning in the late eleventh and twelfth centuries in Italy; canon law of the church; feudal and territorial law, which ultimately blended into the law of the state; and municipal law.3 Just as law in medieval Christendom was complex, so Jewry law was complex. Like law in general, it, too, developed and changed over time.
Jewry law in Christendom had numerous sources, the earliest being Roman law. Although few pre-Christian Roman statutes concerning the Jews have survived, such nonlegal sources as Josephus’s description of Roman treatment of the Jews indicate that the Romans continued the tolerant policy they had inherited from Hellenistic and Persian antiquity. Judaism was recognized as a collegium (association) whose adherents were permitted to congregate for religious purposes and “live by their ancestral laws.”4 Collegium was often applied to the Jews interchangeably with religio licita, or “licit religion.” The latter, though not a legal term, was in use as early as the beginning of the third century.5
In some ways, Roman legal policy toward the Jews exceeded the tolerant stance of the earlier regimes. Faced with a religion that prescribed such distinctive (and, to Romans, peculiar) customs as circumcision, worship of a single invisible God, abstention from work one day each week (the Sabbath), and sending donations to the Patriarch in Tiberias—peculiarities which fed an anti-Jewish strain in literature that some call “pagan antisemitism”—Rome was obliged to tolerate “ancestral laws” it did not allow even its own citizens.6
An edict of Augustus from about 1 B.C.E. states that “Jews shall use their own customs in accordance with their ancestral law, just as they used to use them in the time of Hyrcanus, the high priest of their highest god.”7 This law aptly illustrates Roman rulers’ forbearance toward the Jews, a policy practiced consistently and steadfastly for centuries. They temporarily reversed themselves on the legality of Jewish observance about the time of the Jewish revolt of 132-35 C.E., when Emperor Hadrian proscribed Sabbath observance and circumcision.8 The decree was rescinded by Emperor Antoninus Pius (r. 137-61). Moreover, in the year 212, Emperor Caracalla granted citizenship to all non-Romans in the empire. Although the edict does not mention Jews by name (or any other “foreign” group, for that matter), scholars generally agree that Caracalla’s law included the Jews.9 Hence, during the final century of pagan Roman rule, legally Jews graduated from tolerance to near parity with other Roman citizens.
The “tolerance” accorded the Jews was derived from an essential feature of Roman society: its pagan, polytheistic religion. In polytheistic societies, the gods and their respective peoples tolerate one another’s existence. Polytheism breeds what the modern world would call “religious pluralism.”10 By contrast, monotheism is inherently exclusive. The unity of God has its counterpart in the desire of his adherents for all people to be united in worshiping him. Thus, in the ancient world, the monotheists par excellence—the Jews—did not reciprocate the religious toleration of pagan Rome. Indeed, they sought to make converts among the Romans. Early Christians inherited from Judaism their monotheistic intolerance for the Roman “gentile.” At the same time, as the new monotheists on the scene, convinced of the veracity of their own version of God’s revelation, Christians found the continuing presence of the Jews both problematic and a source of competition. When, in the fourth century, Christianity replaced paganism as the state religion of the Roman Empire, the opportunity arose to reduce the influence of paganism and Judaism alike. It is the latter to which we now turn.
The Theodosian Code, compiled by order of Emperor Theodosius II between 429 and 438, incorporates Roman imperial legislation dating from the beginning of the Christian period.11 Jewry law in the Code is a mixture of tolerance (the legacy of polytheistic Rome) and the intolerance inherent in monotheistic Christianity. Because the Code had considerable influence in the Latin West during the early Middle Ages, both in its own right and in its epitomizations, it is the foundation of Jewry law in Latin Christendom.
Amnon Linder’s study of Jewry law in Roman imperial legislation provides an excellent guide to this subject.12 The Theodosian Code contains thousands of laws divided topically into “books” and “titles.” Laws concerning the Jews comprise a minuscule portion of the whole.13
The vast majority (fifty-one out of sixty-eight) of the citations concerning Jews in the Theodosian Code occur in the final section, Book 16, which covers the relationship between the established Christian church and other religions. Not surprisingly, this book departs from the religious pluralism that underlay pagan Roman law. We find a series of ordinances which, on one hand, grant special privileges to the Christian clergy and, on the other, combat early Christianity’s principal foes—heresy, paganism, and Judaism. For example, Title 5, “On Heretics,” impugns Jews along with heretics as partners in anti-Catholic enmity, calling them “a pestilence and a contagion if it should spring forth and spread abroad more widely.”14 Reissued some two months later, with strengthened admonitions to Roman officials to be vigilant about such offenses, this same law couples Jews with heretics and “the gentiles, who are commonly called pagans.”15 Linder comments that, from the beginning of the fifth century, the regular association of Jews with pagans and heretics in laws “indicates a fundamental change in the Jewish policy of the imperial government” which “was bound to affect the legal status of the Jews during that period.”16
Titles 8 and 9 of Book 16 deal exclusively with the Jews.17 By consolidating in two consecutive titles so many texts concerning the Jews, even at the expense of repeating laws left embedded in other contexts, the Code focused attention on the Jews as a problem of special concern, for whom special regulations were needed. This consolidation marked a departure from the situation that obtained between Caracalla’s law of 212 and the Christianization of the Roman state—a century during which the Jews were brought under Roman law. It also foreshadowed the later evolution of Christian Jewry law into a special law for a people living on the margins of the Christian ecumene, or even outside it.
As is generally recognized, Title 8 perpetuates the features of the old pagan-Roman toleration. At the same time, some of the phraseology reflects the new concerns of the church. Carried over from the pre-Christian period is the all-important recognition of the legitimacy of Judaism and the resulting guarantee of Jewish assembly for worship. The first law on this matter, dated 393, begins with the affirmation: “It is sufficiently established that the sect of the Jews is forbidden by no law.”18 Although this may seem a rather negative way of expressing toleration, the formulation could simply reflect an attempt by codifiers to anticipate and preempt clerical objections to the continuation of an indulgent policy deeply rooted in pre-Christian Roman tradition. Other, more specific guarantees of the freedom to practice Judaism are included—for instance, the age-old assurance of noninterference in observance of the Sabbath.19
Essential elements of the policy of toleration inherited from the pagan period are the provisions of the Theodosian Code that protect Jews against wanton assault on their persons and property. The earliest statute dates from 397: “All insults of persons attacking the Jews shall be averted (and . . . their synagogues shall remain in their accustomed quietude).”20 Similarly, a law of 420 combines protection of synagogues with safeguarding Jewish lives: “No person shall be trampled upon when he is innocent, on the ground that he is a Jew, nor shall any religion cause any person to be exposed to contumely. Their synagogues and habitations shall not be burned indiscriminately.”21 The statute closes with a statement characteristic of Christian stringency to the effect that “the Jews also shall be admonished that they perchance shall not become insolent and, elated by their own security, commit any rash act in disrespect of the Christian religion.”
This qualification of assurances of protection by an admonition not to take protection for granted may have been anticipated in pre-Christian Rome. In 41 C.E., following riots against the Jews in Alexandria, Egypt, for demanding new privileges, Emperor Claudius wrote to the Alexandrians, insisting that they desist from violence. In his letter, Claudius specified the limits of toleration of the Jews, ordering them to stop their demands for “more privileges.”22
In the same spirit, the Theodosian Code frequently couches safeguards for the Jews and their property in grudging, often threatening language: “We have suppressed the spirit and audacity of the abominable pagans, of the Jews also, and of the heretics. Nevertheless . . . it is Our will . . . that those persons who commit many rash acts under the pretext of venerable Christianity shall refrain from injuring and persecuting [the Jews].”23
Christian animosity toward Judaism is rampant in the stipulations of Title 8, which, in turn, are consistent with the tone of Christian supremacy that characterizes Book 16.24 The right of the Jews to send money to the Patriarch in Tiberias was rescinded. Henceforth, contributions were to be diverted to the imperial treasury.25 Another law (of 415) demoted the patriarch Gamaliel, restricted his authority to build new synagogues, and commanded him to destroy synagogues located in deserted places.26 The same Emperor Honorius who enacted the law of 415 reversed himself in 423, prohibiting the destruction of old synagogues.27 In his “new law” of 438, Emperor Theodosius II extended the concession: “With an equally reasonable consideration also, We prohibit any synagogue to arise as a new building, but license is granted to strengthen the ancient synagogues which threaten immediately to fall in [into] ruin.”28 After conquering the Byzantine lands of the eastern Mediterranean, Islam adopted a more repressive policy, forbidding both new construction and the repair of existing houses of worship.
Prejudicial language about the Jews tempers the principle of Roman toleration carried over into the Theodosian Code. The extensive use of the term superstitio is conspicuous. A pejorative in pre-Christian Roman usage, the term designated any non-Roman religion; but Roman writers also referred to Judaism, using a neutral designation, religio. This duality continued after the Christianization of the empire. By the beginning of the fifth century, religio was reserved for Christianity, whereas superstitio, now restricted to Judaism, was henceforth qualified by such pejorative adjectives as “abominable” and “nefarious.” Other language in the Code calls attention to the Jews’ obdurate rejection of Christ, to the perversity—even to the impurity of Judaism (“a plague . . . that spreads like contagion”)—and to the inveterate hostility of the Jews toward the Roman Empire.29
Jewish power over both Christians and potential Christians among the pagan population was a major irritant to the Catholic church. An injunction placed Jewish-Christian intermarriage on a par with adultery (though not stated, this was punishable by death).30 A law imposed by Emperor Honorius, dated 404, barred Jews and Samaritans from employment in the imperial service.31 Honorius repeated his prohibition in 418, this time referring to the Jews alone as “those persons who are bound to the perversity of this race who are proved to have sought armed imperial service.”32 Emperor Theodosius, in his Novella 3, of 438, repeated the ban and extended its applicability to all branches of civil administration.33
Over the centuries, these enactments—removing Jews from positions that allowed them to bear arms (although, as late as the twelfth century, in some places, Jews continued to carry and use weapons)—initiated a drive intended to exclude Jews from positions in which they might wield authority over Christians.
Of particular concern to church leaders was the possibility that Jews would exert undue influence over slaves in their households. This fear stemmed from the Jewish law requiring that male slaves, upon entering household service, be circumcised and converted through ritual immersion in water.34 The codifiers of the Theodosian Code dedicated the entire Title 9 of Book 16 to the subject, “No Jew Shall Have a Christian Slave.” Classical Roman law had already expressed its disapproval of circumcision because of its similarity to the forbidden custom of castration.35 Christian-Roman law, however, refocused the issue in terms of conversion. Constantine, the first Christian emperor, ruled that “if any Jew should purchase and circumcise a Christian slave or a slave of any other sect whatever, he shall not retain in slavery such circumcised person.”36 According to a law promulgated in 417, a Jew who already owned Christian slaves could keep them but only on the condition that he not “unite them, either unwilling or willing, with the pollution of his own sect.” As usual, the punishment for violation was death. 37 The focus on Jewish ownership of slaves continued over the centuries with the same disproportionate intensity in canon law. The situation represented a grave violation of the fundamental premise that no infidel should be superior to a Christian.38
Early Christian Jewry law is summed up by this toleration of Judaism—the legacy of Rome—qualified by intolerant language and restrictions which aimed at preserving Christian supremacy over the Jews. The Justinianic Code, compiled at the beginning of the sixth century, drew heavily upon the parent codification, carrying over entire sections intact. The code also eliminated some laws while modifying others. Some of this revision reflects a hardening of attitudes characteristic of this period of tension and enhanced fear of heresy. Thus, in the statutes, heretics are regularly linked to Jews.39 A novella of the year 535 decrees that synagogues be turned into churches and that conventicles of pagans and heretics not be allowed.40 Justinian’s most infamous “new law” regarding the Jews interdicted deuterosis.41 Promulgation of the law amounted to interference in the freedom to practice Judaism, which radically contradicted the age-old policy of pre-Christian and Christian-Roman law.42
Justinian’s Code—in circulation in the eastern Roman Empire in various, shortened forms—was unknown in the West until the revival of the study of Roman law at the end of the eleventh century.43 It was the more moderate Theodosian Code that lingered in the memories of European jurists and churchmen in the early Middle Ages. Amnon Linder notes that, apart from Visigothic Spain (where the Code was replaced in 506 by an abbreviated epitome), “in other parts of the West the Code was never formally abrogated, and its legal status was comparable to that of other legal sources."44 Especially in southern Europe—where, in general, continuity with the Roman past was strong—memory of Roman law and the persistence of many Roman legal procedures contributed to the creation of an environment that, for Jews, was considerably more secure than it was in northern Europe.
Inevitably, Jewry law appeared in pronouncements by the Catholic church. Influenced by Roman law, canon law, in turn, influenced the Jewry law of the state. Book 16 of the Theodosian Code, with its mix of toleration and restriction of Judaism, was accepted by the church “as an authoritative source of canon law.”45 During the early Middle Ages, edicts of ecclesiastical councils and pontifical opinions, often in the form of letters, steadily expanded the corpus of canon Jewry law.
Nearly all the canons of diocesan and ecumenical church councils regarding the Jews—whether in Spain, Gaul, or the East—are repressive, reflecting the intolerant streak in Christianity.46 Compared to the hard line evident in the Jewry law of church councils, Pope Gregory the Great (590—604) expressed more moderate views in concordance with the Roman traditions he knew from his aristocratic upbringing and from an earlier career in civil administration. In twenty-six pastoral letters regarding Jewish-Christian relations, Gregory adhered to the tolerationist features of the Theodosian Code, notably by opposing forced baptism and upholding the inviolability of synagogues. He set a standard on Jewish matters that guided the papacy for centuries.47
Most important, in one sentence of a letter, Gregory enunciated what was to become the emblem of papal policy toward the Jews: “Just as it should not be permitted the Jews [Sicut Judeis non] to presume to do in their synagogues anything other than what is permitted them by law, so with regard to those things which have been conceded them they ought to suffer no injury.”48 True to the spirit of equilibrium between repression and tolerance in the Theodosian Code, Gregory’s formula first limits the Jews to the observance of laws and customs permitted in the past; then guarantees them protection from interference in the practice of any of those laws and customs. The pronouncement is also reminiscent of the formulation in Claudius’s letter to the Alexandrians (where, however, the guarantee precedes the restrictions).49
The most significant pronouncement of ecclesiastical Jewry law appears as a bull that opens with Gregory’s very words and is known as the papal bull Sicut Judeis. Another appellation attached to it in some medieval collections—“Constitutio pro judeis” (Constitution in favor of the Jews)—clearly indicates its protective intent. The earliest pope to issue this decree was apparently Calixtus II (1119—24), though the existence of his precedent-setting and influential edict is known only through reference to it in later renewals. It is believed that Calixtus issued the bull in response to a petition from Jews hoping to improve the security of a people whose vulnerability had been distressingly revealed so recently during the massacres of the First Crusade. On the other hand, the request may have sprung from concern about localized anti-Jewish violence in Rome or elsewhere in Italy.50
The papal bull Sicut Judeis elaborates on the second half of the Gregorian formula, the “guarantee” clause. It specifies what the twelfth-century church deemed to be the Jews’ rights, including freedom from forced baptism, protection of persons and property from unwarranted assault, the unimpeded right to practice Judaism, and the inviolability of Jewish cemeteries. These guarantees are backed up with a commitment to punish Christians who trespass them. The bull was issued by five more popes before the end of the twelfth century, by another ten in the thirteenth, and then not again until 1348. The one promulgated by Pope Clement III (between 1187 and 1191) was incorporated into “authoritative” canon law in the Decretals of Pope Gregory IX (1227-41), promulgated in 1234.51
Papal assertion of the right of Jews and Judaism to protection and toleration, anchored in Roman law and mediated into medieval Christianity by Pope Gregory I, had already found its theological rationale in the thought of St. Augustine: God allowed the Jews to survive and live among Christians because they played the multifaceted role of “witness.” In keeping with both Augustinian doctrine and the protections guaranteed in the bull Sicut Judeis, throughout the Middle Ages the papacy maintained staunch and fairly consistent opposition to forced conversion of the Jews as well as to unwarranted physical brutality toward them. Indeed, from time to time, a Pope might even add a clause to the “Constitutio pro Judeis” defending the Jews against some new, current threat. For example, in 1247, Innocent IV reissued his own version of the bull within a year of the first promulgation, adding a section denouncing the newly risen blood libel.52
I do not mean to imply that the papacy went out of its way to nurture Jewish life among Christians. Quite the contrary; during the eleventh, twelfth, and especially the thirteenth centuries, as the papacy struggled to assert its supremacy over secular rulers, it also asserted its authority over the Jews. This was done by inculcating the complementary ideas of Jewish subservience and inferiority. Beginning with Pope Innocent III, in 1205, the idea of subservience was expressed in the revival of an old patristic doctrine about the “perpetual servitude” of the Jews, which gave ideological ballast to Innocent’s newly intensified campaign to segregate and subjugate the Jews. It was Innocent III who introduced the unfriendly qualification at the end of the “Constitutio pro Judeis” when he renewed it in 1199: “We wish, however, to place under the protection of this decree only those [Jews] who have not presumed to plot against the Christian faith.”53 A disparaging preface mentioning “Jewish perfidy” was not included in subsequent papal renewals of the bull.
At the Fourth Lateran Council, in 1215, Innocent III and his prelates legislated against improper subordination of Christians to Jews. A handful of the seventy canons enacted concerned what was considered intolerable Jewish influence over Christians. For instance, “Since it is quite absurd that any who blaspheme against Christ should have power over Christians, we . . . forbid that Jews be given preferment in public office since this offers them the pretext to vent their wrath against the Christians” (Canon 69).54 This restatement of the old law of the Theodosian Code, barring Jews from positions in the imperial service and from other public offices, had over the centuries been adopted by ecclesiastical legists.55 I will return to this point when I take up the subject of the place of the Jews in the social order of Christendom and of Islam (Chapter 6).
Canon 68 of the Council promulgated for the first time a prescription that is perhaps the most infamous piece of ecclesiastical Jewry law during the Middle Ages. The law decrees that where normal external signs fail to differentiate Jews and Saracens (Muslims) from Christians (Spain, especially, but also, likely, the Norman Kingdom of Sicily appear to have been intended), Jews and Saracens must henceforth be distinguished from Christians by their dress (no particular form was stipulated). The Council wished to prevent “accidental” commingling of Christians with members of the two inferior, infidel religions, especially “polluting” sexual contact.56
The order was qualified in a subsequent letter of Innocent, in which he stated that Christians should “not force [the Jews] to wear such as would lay them open to the danger of loss of life.”57 It is difficult to imagine how this rider could have been implemented.
The same canon forbade Jews to appear in public during Eastertide or to blaspheme Christ, an old law founded on the widespread presumption—not entirely untrue—that many Jews hated Christians and ridiculed their beliefs and practices.
Yet another canon ruled that Jewish converts to Christianity should be prevented from backsliding, consistent with church teaching on the irreversibility of baptism.58 A fourth law prohibited Jewish moneylenders from oppressing Christians with their “heavy and immoderate usury.”59
The canons on distinctive dress and Jewish officeholding entered authoritative canon law in the Decretals of Pope Gregory IX, while rulings on Eastertide came into that same code from the pronouncement of an earlier pope, Alexander III.60 Following the lead of Innocent III, the church witnessed considerable erosion of the papacy’s protective policy during the thirteenth century.61 Beginning with Gregory IX, in 1239, the papacy, briefly and unprecedentedly, interfered with the free practice of Judaism by investigating the Talmud, and ordering that copies of it be burned. The torching of twenty-four cartloads of books of the Talmud in Paris was carried out in 1242 by order of the French king, Louis IX.62 Gregory had learned from a Jewish apostate, Nicholas Donin, that the Talmud contained anti-gentile “heresies” and other inanities, which, as Gregory asserted in his letter to the archbishops of France ordering them to seize the Jewish books, was “the chief cause that holds them in their perfidy.”63 In 1240, Donin, the Pope’s “mentor,” represented the Christian side in a great public disputation on the Talmud in Paris, at which the Jewish books were formally sentenced to destruction. Pope Innocent IV (1243-54), who renewed Gregory IX’s ban on the Talmud and similarly ordered it burned, justified this departure from the ecclesiastical guarantee of religious freedom to Jews in a comment on one of the Decretals of Pope Gregory IX. He declared that the pope had jurisdiction over Jews when it came to teachings in their own books that perverted the true meaning of the Torah—that is, as it should be understood, namely, christologically—if the Jewish authorities failed to act.64 Among various likely motives (as distinguished from rationalizations) for this foray into inner Jewish life, one that stands out is the wish to assert papal sovereignty over all of Christendom in the face of the supremacist claims of monarchs, especially those of the Holy Roman Emperor.
Further erosion of the principle of Sicut Judeis occurred later in the thirteenth century. The papacy asserted its jurisdiction over Jews in a new way with the bull Turbato corde (“With a troubled heart . . .”), first issued in 1267 by Clement IV and repromulgated three more times before the end of the century. In this edict, the Inquisition established by the papacy in the 1230s to find and prosecute Christian heretics was granted extended authority to prosecute professing Jews suspected of influencing Christians (former Jews who had converted to Christianity) “to join their execrable rites”—that is, by re-Judaizing—itself an act of heresy.65
Modem assessments of papal pronouncements, and of ecclesiastical Jewry law in general, range from the reproachful to the apologetic. Traditionally, Jewish historians have tended to saddle the popes with a large measure of responsibility for the oppression of the Jews in medieval times, especially during the High and later Middle Ages. At the other extreme, a Catholic scholar has attempted to mitigate papal culpability by blaming their harsh policies on precedents gleaned from Christian emperors. This author cites papal fears that Jews were in league with the Muslims against Christendom and finds antecedents or parallels to papal hostility in Jewish statements inimical to Christianity.66 Another apologetic work argues (extravagantly and unconvincingly) that antisemitism in medieval Christendom arose not from Catholic theology regarding the Jews, but, rather, from a conviction that the Jews were somehow identified with Muslims and were allied with them against Christians.67 A Jewish historian of papal-Jewish relations maintains a sympathetic view of the popes’ tough treatment of the Jews. He explains it contextually, as resulting not from “hatred of the Jews” but from the need to enhance the power and prestige of the ecclesiastical establishment (“love of the church”).68 The same scholar believes that secular governments bore far more responsibility than did the papacy for inflicting harm on medieval Jews.69 The editor of a seven-volume collection of papal documents regarding the Jews from the end of the fifth to the mid-sixteenth century points to vacillating and sometimes contradictory policies “between protection and persecution” that must, he argues, “be judged in the light of prevailing circumstances.”70 However one judges the motives of the popes, it remains true that the papal guarantee of protection to the Jews increasingly became attenuated in the thirteenth century by hostility and a strong desire to exclude the infidel Jews from the company of Christians.
While popes contributed to canon law with their authoritative pronouncements and epistles, law in the medieval church was, formally speaking, the province of a class of experts known as “canon lawyers” (a few of whom also became popes). The practical impact of their policy, or attitude, toward the Jews is difficult to assess, owing to their essentially theoretical concerns. In the prevailing view, canonists prior to the First Crusade held moderate views concerning the Jews.71 A shift toward harshness is thought to have followed the escalation of popular hostility toward the Jews during the first two Crusades. This change in canonist policy is said to have first been expressed about 1094 in anti-Jewish feelings found in the legal writings of the canonist Ivo of Chartres.
Gilchrist offers a different view. He suggests that the negative attitude toward the Jews in canon law can be traced to a time well before the First Crusade. Analyzing collections of canon lawyers from before and after 1100, Gilchrist concludes that already in the Decretum, or Liber Decretorum of Burchard, bishop of Worms (ca. 1012), an attitude of strict segregation of Jews from Christians prevailed, along with appropriately harsh language. Gilchrist intimates that this view may have influenced the violent actions against the Jews at the end of the century, rather than the other way around.72
Walter Pakter, who devoted an entire book to the Jewish question, gives a subtler presentation of the views of canon lawyers.73 Even as the Crusades began, during the heyday of codifying canon law (from Gratian on), Pakter finds that the most important canonists held a relatively liberal opinion of how the Jews should be treated. Indeed, even as the Jews’ social and political standing deteriorated in the twelfth and thirteenth centuries, canon lawyers managed to improve their status. They avouched Jews’ fundamental rights, including the binding nature of Jewish laws of marriage, divorce, and parental prerogatives.74 Canonists from the south (the “Italian school”) did not take seriously the concept—promoted by the papacy—of “servitude of the Jews,” invoked by some canonists, most of whom were in northern Europe, to justify forced baptism of Jewish children.75 In another example of leniency, one that seemed to deny the supposed servility of the Jews, canon lawyers countenanced Jews serving in public office provided they performed services not easily provided by Christians.76
In an ironic twist, Pakter shows that some of the greatest canon lawyers after Gratian countered papal “theological” presuppositions about the Jew as outsider by expanding ecclesiastical jurisdiction over the Jews, at least in theory. By making Jews “subjects of prejudiced courts administering prejudiced law,” the canonists contributed to the erosion of Jewish status while, at the same time, offsetting the gains made in papal protection after the First Crusade.77 The Jews welcomed these expressions of greater papal concern, insofar as they added protection at a time of growing hatred of Jews and of violence toward them. In return for this boon, however, the Jews lost whatever sanctuary from Christian prosecution they had known earlier.78
Just as papal decrees and conciliar edicts had a direct, if slow and uneven, impact on the content and practice of secular law, so did canon law. As Guido Kisch points out in his study of medieval Germany, “even if [papal decretals and conciliar decrees] did not immediately influence the state’s Jewry legislation,
they nevertheless seriously affected the status of the Jews; for, as a rule, medieval Christians . . . would not openly incur the ecclesiastical sanctions extending even to excommunication and interdiction. Thus the effects of canon Jewry legislation were promptly felt by the Jews. . . . Their economic and social position was adversely affected and their life made miserable.79
The story of the papal attempt to enforce segregation by requiring Jews to wear a distinctive sign on their outer garments provides a case in point. Some monarchs acceded to the papal directives that began in 1215, with Lateran Council IV. Others used the law as an excuse to extract money from the Jews in the form of bribes intended to obtain exemption. Jews feared that wearing such a sign would make them more vulnerable to physical attack.
The wearing of distinctive garb was first enforced in England, beginning with the reign of King Henry III. The sign was to consist of “two white tables made of white linen or parchment” worn “upon the fore part of their upper garments.”80 As its use spread to other countries in the High and late Middle Ages, the stigma assumed a variety of forms, mainly yellow in color. The Holy Roman Empire did not apply the church’s law until the fifteenth century, probably because the Jews under the empire’s jurisdiction wore a distinctive conical hat that already distinguished them from Christians. In the fifteenth century the custom was enforced in the form of a yellow wheel sewn on the outer garment.81 This was the forerunner of the infamous Nazi “Jewish badge.”
In the thirteenth century, church leaders began to move away from their protective policy on the Jews, toward one of restriction and exclusion. Secular powers began to enforce the policy, albeit unevenly. The hardening policy of both church and state boded ill for the security of the Jews, leading to their expulsion.
Jeremy Cohen, in his Friars and the Jews, argues that vehement anti-Jewish preaching and writing of the mendicant orders (Dominicans and Franciscans) in the thirteenth century undermined the Augustinian tradition of preserving Jews within Christendom as witnesses.82 With this prop removed, the way was open to ultimate exclusion of the Jews: physical removal from Christian society.
There is some question whether this thesis, focusing as it does on theology, can be upheld in its categorical form.83 Simonshon has shown that the Augustinian formula continued to appear in papal writings down to the end of the Middle Ages.84 Whatever the outcome of the scholarly debate about the impact of ecclesiastical thought on Jewish status in the High and late Middle Ages, the actual expulsions from Christendom were to be the work not of the church but of the medieval state.
The legal position of the Jews in the medieval state (an anachronism commonly used for territorial entities under royal sovereignty) originally was fashioned by incorporating special privileges into charters, not by legislative codes or the law of the church. Charters (the earliest extant ones are Carolingian) consisted in grants of privileges to Jewish merchants—first to individuals and their families, later to entire Jewish communities, and eventually to all Jews in an area controlled by a monarch. These charters attest to the important function fulfilled by Jewish traders in early medieval Europe and their economic utility to governing authorities. The charters exemplify the beginning of a process whereby Jews, over time, came to belong (in the sense of nearly absolute control) to a secular ruler and thus to have special, but limiting, status under the law.
From a legal standpoint, we lack explicit evidence regarding how the Jews were viewed by the Germanic invaders of the western Roman Empire. Based on their interpretation of Germanic customary law, some scholars believe that the Jews were considered unfree aliens. That is why the Jews needed every bit of special legislation they could get from kings.85 Most students of the period believe that, from the outset, Germanic rulers regarded the Jews as Roman citizens, hence subject to Roman Jewry law. The Barbarians had epitomes, or models, of Roman law compiled for the benefit of the Romans within their realm (Romans were much more numerous in the south, near the Mediterranean, than in the north). The most influential epitome was the Lex Romana Visigothorum (506 C.E.), an abridgment of the Theodosian Code intended for Romans living under Visigothic rule in Spain and southern Gaul. Also called the “Breviary of Alaric,” this epitome contained nine laws from the Theodosian Code regarding the Jews, plus Theodosius II’s own Novella 3 from the end of the same corpus and two more from another source, all meant to apply to the Jewish subjects of the Visigothic king.86 Many scholars believe that the Breviary of Alaric reflects the tone of the Theodosian Code, as well as a tendency toward tolerance regarding the Jews that was characteristic of Arian Christianity, something the Visigoths professed at the outset of their Christianization.87
Unfortunately for Jews living in the Visigothic Kingdom, after the conversion (589) of the Visigothic royal house to “orthodox” Nicaean Catholicism, the way was open to revocation of the Breviary and, with it, Roman law as it applied in Spain. In 654, the Breviary was replaced by Leges Visigothorum (Laws of the Visigoths) a new, unified code for both Visigoths and Romans.”88 The protection Jews had enjoyed by virtue of their Roman citizenship disappeared. All the Jewish provisions in the new code were restrictive and intolerant in the extreme.89 This was one of several factors that set the stage for the rapid decline of Visigothic Spanish Jewry during the remainder of the seventh century. The Germanic Franks continued to apply the Visigothic Breviary of Alaric to Romans in parts of southern and eastern France which they conquered, mainly Burgundy.90 The employment in Frankish courts of scribes and notaries familiar with Roman laws and legal procedures helped ensure this continuity.91
Very few Romans, but many different Germanic tribes, lived in northern France and Germany, the original area of Frankish settlement. There, the Franks applied Barbarian customary law, with its principle of the personality of the law—the idea that the law for an individual depended on the tribe or group to which that person belonged, rather than on the region in which he lived.92 We have little hard data about Merovingian Frankish policy toward the Jews. The edict of King Lothar II (614), in many of its clauses echoing the church Council of Paris held a week earlier, cannot be said to provide insight into this matter on the basis of its provision prohibiting Jews from holding public office over Christians.93 Clearer evidence issues from the legislative remains of the Carolingian king, Louis the Pious (813—40), Charlemagne’s son and successor. Louis set out to induce itinerant Jewish merchants to settle permanently in his realm by issuing standard Carolingian charters of privileges, including the all-important right to live by their own laws, in addition to generous dispensations to facilitate their commercial activities.94 This privilege conformed with the pluralistic premise underlying the principle of the personality of law, which the Franks, more than other Germanic groups, perpetuated in the early Middle Ages. As was true of the pagan Roman world, the pluralism of the tribal world of the German Barbarians carried advantages for the Jews. The relatively secure position of the Jews in northern Europe during the early Middle Ages owes much to this feature.
In the countries of northern Europe, royal and imperial charters governing and protecting Jews evolved into direct, unmediated, legal dependence on a central ruler. As enmity and physical attack became more prevalent after the First Crusade, this dependence was of considerable benefit to the Jews. An example is the charter issued by the German emperor, Frederick I, in 1157, for the Jews of Worms. The charter confirms a previous one granted by Frederick’s great-grandfather, Henry IV, apparently around 1090; its date is inferred from its similarity to a charter of Henry IV for Jews in Speyer, dated February 1090.95 Certain concepts and privileges, most of them dating from the earliest Carolingian charters, are common to many of these documents:
Inviolability of property
Freedom to travel for business and trade, without having to pay tolls
Exemption from the obligation to house and resupply soldiers on the march
Fair legal treatment if discovered with stolen goods
Protection from forced baptism
Permission to hold pagan slaves, even those baptized by Christians in order to secure their emancipation (purchasing a slave already Christian was, however, prohibited)
Permission to employ Christians as domestic servants
Fair legal treatment in mixed litigations
Judicial autonomy in internal Jewish legal disputes
The right to sell wine, dyes, and medicines to Christians96
The charter’s introduction states that the Jews of Worms “belong to our chamber, or treasury” (ad cameram nostram). This crucial phrase, which appears to be an innovation by Frederick97 (such a phrase is absent in Henry IV’s Speyer charter of February 1090),98 represents an important landmark along the way to developing what has come to be known as “chamber serfdom.”
Much has been written about the legal concept associated with servi camerae nostrae (serfs of our [royal] chamber) or servi camerae regis (serfs of the royal chamber), Latin phrases which first appear in 1236, in a charter for the Jews of the Holy Roman Empire. In the past, historians viewed both term and status as degrading. The word servi implies “absence of freedom.” To scholars who believe the Jews had been unfree aliens in the Barbarian kingdoms, the use of servi to describe the Jews after the thirteenth century was nothing more than a semantic change. James Parkes, for example, sees the concept as a station on an inexorable trajectory from the unfreedom of the Carolingian Jews to the state of “the Jew as private property”—a mix of protectionism and cavalier exploitation, all geared to ensure the financial utility of the Jews to the state.99
Contemporary scholarship applies a more nuanced interpretation to the terminology, as well as to its legal implications. Scholars argue, for instance, that the word servi need not be taken as a sign of total, and demeaning, enslavement to a feudal lord. Most people in the Middle Ages were “unfree,” in the sense that they owed allegiance to, and were dependent on, some higher authority.100 Moreover, because Jews were excluded from the feudal system, it is natural to assume that the status of servi, as applied to them, would have features uncharacteristic of “normative serfdom,” if there were such a thing.101 Salo Baron, forever combating the “lachrymose conception of Jewish history,” has pointed to the benefits that accrued to the Jews as a result of being placed under the direct protection of secular rulers. One important advantage Jews had over unfree Christian serfs was their freedom to live wherever they wished—in most places, a freedom denied Christians. Another advantage was membership in recognized, “corporate” Jewish communities whose autonomy in matters of Jewish law effectively bestowed on them rights that, in many ways, offset their technical “unfreedom.”102 Cecil Roth argues that the status of the Jews as direct dependents of the king of England (where the phrase servi camerae seems not to have been used) entailed stringent, absolute proprietorship with attendant exploitation but also with “unmistakable privileges.”103
We should avoid the temptation, when tempering the “lachrymose conception,” to overstate the virtues of Jewish serfdom. Neither should we jump to apply the dismissive (similarly, anti-lachrymose) approach to the assumed degradations of Christian serfdom found in some recent revisionist work by medieval European historians. The urge to achieve freedom—even with its different set of burdensome obligations toward the seigneur—through manumission, underscores “the central substantive issue . . . the meaning and limits of freedom, that mystically vague notion embodied in a status that men and women in the thirteenth century paid dearly for; that men and women in the fourteenth century and since have often purchased with their lives.”104
We would do well, too, to bear in mind R. W. Southern’s comment on serfdom: “To nearly all men serfdom was, without qualification, a degrading thing.” Men, Southern says, “well knew, however theologians might seem to turn common notions inside out, the difference between the yoke of servitude and the honour of liberty. . . . What men feared and resented in serfdom was not its subordination, but its arbitrariness.”105 According to Southern, a serf lacked two crucial things: liberty and the protection of law—liberty because he was totally dependent on the will of his overlord; and law, because the serf needed the inherent, dependable protection that could come only from law and its enforcement. “The higher one rose toward liberty, the more the area of action was covered by law, the less it was subject to will. ... At the bottom of society was the serf, who could least appeal to law against the arbitrariness of his superiors.”106
Guido Kisch and Gavin Langmuir, who have analyzed Jewish serfdom, explain its evolution as well as the way in which it ultimately acquired the degrading characteristics of serfdom in general. Kisch107 traces a regressive path in medieval Germany from the comfort and security that accompanied inclusion in evolving public law, to the insecurity and unfreedom that resulted from relegation to a special, dependent status as “serfs,” with concomitant exclusion from society. Until the thirteenth century, he argues, the German monarchy followed a dual policy of protecting Jews and integrating them into the normal apparatus of secular law. For the charters issued to Jews belonged to a class of documents that served as the standard vehicle by which kings legislated in the early Middle Ages.
The massacres of the First Crusade in 1096 convinced the German emperor, Henry IV, that the Jews, along with other vulnerable groups such as merchants, clerics, and women, needed increased protection. Beginning in 1103, Henry inaugurated a secular version of the older, ecclesiastical Peace of God (or Truce of God)—the Land Peace Law, a kind of truce which stipulated no one might harm a specified person or group over a defined period of time. Though included under Henry’s law, Jews as a group were no longer allowed to bear arms. This revival of a principle of Christian-Roman Jewry law thus robbed Jews of what in medieval times was an important source of honor.
As Kisch shows, Jews continued to receive charters. Christian hostility toward Jews steadily increased during the Crusades, but the German charters (for instance, that of Frederick I, in 1157) offered extra protection by placing the Jews under direct imperial control. In 1236, a year after introduction of the blood libel in Germany, the German monarchy took the final—in a sense, regressive—step. It declared Jews servi camerae nostrae, terminology which was inspired by the recently revived papal doctrine of servitus Judeorum (servitude of the Jews). Kisch believes that this church-inspired idea marked the beginning of Jewish unfreedom. From then on, he says, Jews were no longer part of the organic legal structure of the Land Peace Law, which had briefly imparted to Jews an aura of inclusion in society, albeit as members of a class especially vulnerable. Henceforth, the legal status of Jews was governed by special legislation designed specifically for them, a jus singulare.108 Already diminished when they lost the right to bear arms, the honor of the Jews fell to a new low. In the view of Friedrich Lotter, German imperial law on the Jews in the mid-thirteenth century began to yield to ecclesiastical pressure, in order to eliminate the old privileges granted Jews in Carolingian and Salian times. This setback was reflected in the large-scale persecution of the Jews in the last two decades of the century.109
Gavin Langmuir concurs in the belief that the condition of Jewish “serfdom of the chamber” constituted an abasement of the legal status of the Jews. Actual employment of servi camerae was less important, however, than the practice of exclusive royal dominion over the Jews and the exploitation of them. For instance, the words servi camerae do not appear in English royal charters.110 But, Langmuir observes, England by the twelfth century already had a strong central monarchy, at a time when the Jews’ perceived dependency on royal whim and protection was real. Thus the terminology was superfluous. At the other extreme, in Germany and Spain, where centralization was least developed, royalty employed the terminology of servi camerae in asserting direct control over the Jews. In France, where Jews were never described as servi camerae, the appearance of Judei nostri (our Jews) in royal legislation as early as 1198 anticipated the growing dependency of Jews on the monarchy. Moreover, in France, barons maintained possessory rights over the Jews in their respective domains.
The concentration of authority over the Jews in the hands of the French monarch thus was a process that moved slowly yet organically. In 1230, in legislation regarding the Jews, the Capetian monarchy asserted the barons’ exclusive dominion over their Jews, wherever the Jews happened to be—even as fugitives in the domain of other barons. This legislation became a milestone on the road to full, centralized royal authority and administration in France. For the first and only time in French ordinances, and strictly as an analogy, this law used the terminology of serfdom for the Jews, stating that a Jew who fled to the domain of another baron could legally be seized by his lord tanquam proprium servum (like his own serf). Whereas a true serf earned his freedom by living unchallenged in the territory of another lord for a year and a day, a Jew could be forcibly returned to his original lord regardless of where a Jew lived as a fugitive or how long he had lived there.111 This law set a precedent that continued the erosion of freedom that had long privileged Jews in feudal France, compared to Christian serfs. Ultimately, the legislation confined Jews to a status more restrictive than ever before.
The very principle of possessory rights (with or without the terminology of serfdom, and regardless of whether the rights were exercised in the domain of a monarch or a baron) that were exercised by secular authorities over Jews with increasing vigor as the Middle Ages wore on included the right to tax Jews to the limit. Because of their vulnerability, Jews proved compliant prey for royal and baronial tax collectors. With variation from place to place, the tax obligations of Jews might include annual levies on households or communities, fees connected with loans, tolls, and, most vexingly, periodic “unscheduled” arbitrary exactions or confiscations to meet various pressing financial needs of an overlord.112 Because they needed protection, Jews had no choice but to pay.
By the thirteenth century, Langmuir says, “as a result of the efforts of ecclesiastics, kings, and barons to exploit Jews, each for their own ends, Jews had been given a degraded legal status that set them apart from all others in European society and denied them even the protection usually accorded serfs.”113 To invoke Southern’s perspective on medieval serfdom, it can be said that Jews came to know what medieval people called “the yoke of servitude,” to experience loss of the “honour of liberty,” and to fear the “arbitrariness” of absolute dependence on the will of their overlords.114 The many arbitrary, burdensome tallages levied upon the Jews during the later Middle Ages, and, much more oppressive, their expulsion—from England in 1290; from France in 1306, 1322, and 1394; from Spain in 1492; and from dozens of German principalities and towns during the later Middle Ages—constituted for the Jews a more severe outcome of “enserfment” than any experienced by Christian serfs, namely, their effective exclusion from lands where they had dwelt for centuries.
Mention should be made of the legal status of Jews in the medieval towns of Europe, which is where most Jews in northern Europe lived. For Germany, Kisch has shown that Jews were treated rather fairly by municipal authorities in, for example, legal disputes.115 Church doctrine on Jewish usury—or, for that matter, on usury in general—did not find expression in the older medieval German lawbooks where German customary law was codified. Nor did church doctrine appear in the municipal law of Magdeburg, which achieved great popularity as a model law and was adopted by numerous German frontier cities in the High and late Middle Ages. Rather, jurisdiction over Jewish usury was turned over to the ecclesiastical courts. Kisch suggests that the secular courts did not wish to interfere with what they recognized as an essential element in the growing economy beginning in the twelfth century.116
The question remains: Did municipal customary law recognize Jews as citizens (burghers) of the towns in which they lived?117 Or were Jews included among the “large number of people in all the larger towns who did not rank as members of its community?”118 In the case of Germany, until the mid-fourteenth century, Jewish rights were “almost identical with that of Christian citizens” in such matters as domicile, protection of life and property, equitable treatment by municipal courts and by various “supreme courts” such as that in Magdeburg, and also in the acquisition of real estate, location of residence, and activity in trade or crafts.119 In numerous cases, a royal, baronial, or ecclesiastical overlord ceded possession of Jews to a town, in which case the town applied to them its own combination of protection and exploitation.
Where Jewish townspeople continued to maintain their special legal relationship with the central authority—be it emperor, king, territorial prince, or bishop—their status was a complicated one. Insofar as this relationship meant additional privileges, such as concession of autonomy in internal Jewish affairs, local Christian townspeople doubtless resented the Jews. Unlike the Christian urban majority, Jews, even where they boasted some form of municipal “citizenship,” nonetheless suffered degradation. They were excluded from municipal political rights, including the right to hold public office, and they bore the burden of special taxes. Assessing the “meaning of citizenship” for the Jewish urban resident, Baron writes:
It is somewhat difficult to envisage all Jews sharing with the rest of the burghers the repeated, sometimes annual, ceremony of retaking the oath of fealty to the city, wherever such reiteration was required by law, without leaving any traces in the contemporary records. The ever present social differences between Christian and Jewish burghers must also have in many ways impinged on the latter’s legal status.120
Thus, Jews, while benefiting from fair treatment in municipal courts, and often acquiring some form of official membership in the town, continued to occupy a marginal place compared to Christians, with their full citizenship. In extreme cases, municipal authorities requested from an overlord the right not to tolerate the Jews in their midst. Increasingly as the Middle Ages wore on, towns decided to do away with the “Jewish problem” altogether by the draconian act of expulsion. In a word, marginality degenerated into exclusion.
We have revisited territory well trod by specialists in medieval European Jewish history, though the ground may be less familiar to the lay reader and the general historian. The overarching theme is the variation and changeability of the legal status of Jews in Latin Christian lands. Christianity inherited from Roman law the idea that Jews are entitled to protection from wanton violence and from interference in the practice of Judaism. Within those limits, both the church and the state manipulated Jewish status in keeping with their own needs and ideologies. In the ecclesiastical realm, popes struggled to balance their obligation to preserve the Jews as “witness” with a desire to exclude them from the company of Christians. Secular authorities at the imperial, royal, baronial, or municipal level followed the law of utility regarding the Jews.
In the early Middle Ages, when Jews performed vital commercial services not otherwise fulfilled, rulers applied the most tolerant features of the legal traditions at their disposal, sometimes to the extent of going beyond them. As the need for Jewish commerce decreased, rulers found the Jews, now heavily concentrated in moneylending, a ready source of revenue through heavy taxation and extraordinary exactions—what William Jordan, referring to France and England, has labeled “fiscal terrorism.”121 This brought with it ever-increasing direct Jewish dependency on their overlords, along with an attendant arbitrariness. Such an arrangement undermined Jewish security, for, in the absence of a corpus of Jewry law that was unified, uniformly applied, consistent, and “constitutional,” the potential always lurked to revoke royal, baronial, or imperial backing for the Jews’ economic activities and residential rights. This situation might arise whenever considerations of piety or political expediency outweighed those of Jewish utility. Thus, as various rulers accepted church calls for limiting Jewish excesses in moneylending and for segregating Jews from Christians, the legal position of the former declined. At best, Jewish communities managed to buy their way out of danger by meeting the persistent demands of the tax collector for money or by bribing officials to revoke or refrain from enforcing restrictions, such as the discriminatory Jewish badge. At worst, Jews were increasingly vulnerable to the general violence of medieval society, which, in their case, was intensified by the anti-Jewish hatred prevailing. When the time came that rulers saw no further use for the Jews, they confiscated whatever remained of their wealth and expelled them.