Rivista Internazionale di Diritto Comune 23 (2012) 23-44 KENNETH PENNINGTON The Law’s Violence against Medieval and Early Modern Jews Since Anders Winroth and Carlos Larrainzar discovered earlier versions of Gratian’s Decretum, legal historians have explored these manuscripts for evidence that they hoped would reveal how Gratian’s changes and additions to his text could provide insights into how his thought and ideas developed 1. Although there is still a vigorous debate about exactly how the manuscript tradition reflects the evolution of his Decretum, we know far more about Gratian now than we did before. Not everyone agrees on what we know. I think that Gratian began teaching in the 1120’s, that the Saint Gall manuscript 673 is the earliest witness to his teaching, and that the other manuscripts discovered by Winroth and Larrainzar provide evidence that a version of his Decretum circulated widely in the 1130’s. The final version of his Decretum ca. 1140 was compiled by gradually adding canons to various parts of the text over an extended period of time 2. That is an outline of what I think we know. * Kelly-Quinn Professor of Ecclesiastical and Legal History, The Columbus School of Law and the School of Canon Law, The Catholic University of America, Washington, DC. 1 Anders Winroth’s book, The Making of Gratian’s Decretum (Cambridge 2000), was responsible for opening new vistas for the study of the Decretum. On the St. Gall manuscript see Carlos Larrainzar’s essays, ‘El borrador de la “Concordia” de Graziano: Sankt Gallen, Stiftsbibliothek MS 673 (= Sg)’, Ius ecclesiae: Rivista internazionale di diritto canonico 9 (1999) 593-666 and ‘El decreto de Graciano del códice Fd (= Firenze, Biblioteca Nazionale Centrale, Conventi Soppressi A.I.402): In memoriam Rudolf Weigand’, Ius ecclesiae: Rivista internazionale di diritto canonico 10 (1998) 421-489. I will limit my citations to the rather large literature that has been published since 1998. Almost all the relevant essays touching upon the issues that I mention in my first paragraphs are dealt with in essays printed in the Bulletin of Medieval Canon Law between 1998 and 2012 and the Zeitschrift der Savigny-Stiftung für Rechtgeschichte, Kanonistische Abteilung during the same period. In the footnotes of those essays can be found references to essays printed elsewhere. 2 Melodie H. Eichbauer, ‘From the First to the Second Recension: The Progressive Evolution of the Decretum’, Bulletin of Medieval Canon Law 29 (2011-2012) 119-167; Eichbauer provides a good bibliography for work on all aspects of the Decretum. 23 KENNETH PENNINGTON The value of the Saint Gall manuscript is particularly controverted. In my opinion no one has been able to prove conclusively that it is an abbreviation – or the contrary. The winnowing and sifting of the evidence proceeds apace. The status of Saint Gall is primarily important for understanding how Gratian began to teach canon law. My conviction that it represents how Gratian first began to teach canon law in the 1120’s cannot be proven now and probably never can be. Still, the format of the manuscript contains a powerful clue. It only contains the causae. They were Gratian’s remarkable contribution to twelfth-century education. He invented a system of teaching law that depended on introducing his students to hypothetical cases based on legal problems that could have easily been heard in the courts during the first half of the twelfth century. In addition Gratian employed the dialectical methodology created by the masters in northern France to legal problems. I think the great success of the Decretum and its immediate and enthusiastic adoption by teachers from Italy to Spain and from Austria to northern France (to rely on the manuscripts that have survived), can be attributed to his case-law methodology that reflected legal problems that Gratian and his students would have encountered if they had visited episcopal tribunals 3. When Winroth and Larrainzar established the existence of different recensions of Gratian’s Decretum in the manuscripts, scholars immediately realized that they might begin to see how Gratian’s thought evolved on various subjects. Unfortunately, to date they have uncovered very little evidence about the development of Gratian’s thought in any area of law. Winroth has attempted to demonstrate that Gratian changed his opinion about the primacy of spousal consent in marriage law and about the validity of the marriage of slaves 4. In both of these cases the evidence is not without ambiguity. 3 Not everyone agrees that Gratian drew upon real life for his examples; Anders Winroth argued in a recent essay that Gratian’s hypothetical cases could not have been real court cases, ‘The Teaching of Law in the Twelfth Century, Errore. Solo documento principale.Law and Learning in the Middle Ages: Proceedings of the Second Carlsberg Academy Conference on Medieval Legal History, 2005, edd. Helle Vogt and Mia Münster-Swendsen (Copenhagen 2006) 41-61 at 47. 4 Anders Winroth, ‘Marital Consent in Gratian’s Decretum’, Readers, Texts and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl, ed. Martin Brett and Kathleen G. Cushing (Farnham, Surrey and Burlington, CT, 2009) 111-121 at 115 n.29 and his essay ‘Neither Slave nor Free: Theology and Law in Gratian’s Thoughts on the Definition of Marriage and Unfree Persons’, Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pennington, edd. Wolfgang P. Müller and Mary E. Sommar (Washington, D.C., 2006) 97-109. 24 THE LAW’S VIOLENCE AGAINST MEDIEVAL AND EARLY MODERN JEWS While preparing a talk on Gratian’s treatment of the Jews, I noticed that the canons Gratian included in his Decretum to establish norms for the legal status of the Jews were not in St. Gall or Gratian I. He treated the legal status of Jews only in the last, vulgate version of the Decretum 5. This fact raises the question why did Gratian become interested in the Jews ca. 1140, the date of Gratian II? 6 I have yet to find a convincing explanation. There were notorious Jewish cases in the mid-twelfth century that might have attracted Gratian’s notice, but he provided no clues in the dicta around these canons which events may have captured his attention. These additional canons are not, however, an example of the evolution of Gratian’s thought; they are an example of Gratian’s beginning to have thoughts on an issue rather late in the game. Gratian introduced his students to the legal status of Jews in four significant clusters of texts that are not in St. Gall nor Gratian I but which he added to Gratian II in two distinctions and two causae. In Distinctio 45 canons 3, 4 and 5, Gratian raised the issue of the validity of coerced conversions of Jews and more generally how Christian rulers, especially ecclesiastical authorities, should treat them. Distinctio 54 canons 13, 14, 15 established that Jews cannot have or own Christian servants, they cannot hold public office, and Jewish slaves who convert to Christianity are freed. Further along in the Decretum he added C.17 q.4 c.31 and dicta p.c.30 and p.c.31, which repeated the norm that Jews cannot hold public office. In Causa 2 quaestio 7 canons 24-25, Gratian discussed procedure and noted that Jews could not bring suit against a Christian in court. Finally, in his treatise on marriage, Causa 28 quaestio 1 canons 10, 11, 12, 13, 14, he included canons that prevented any interreligious marriages, dictating that Jews who marry Christian women must convert. Moreover, Christian children must be removed from Jewish parents and relatives, and Jewish converts must be separated from other Jews. Christians may not marry Jews under any circumstances. In this essay I will focus on the problems raised by the coerced conversion of Jews in Distinctio 45. 5 They are in the margins or the appendices of Florence, Barcelona, and Admont. That means the canons came to Gratian’s attention well before he stopped working on the Decretum, see Eichbauer, ‘From the First to the Second Recension’ 154, 156, 161, 164. 6 Although I believe that the evolution of the Decretum cannot be described as having proceeded in set “stages” or “recensions”, I will employ the terminology established by Winroth for the sake of clarity. For the evolution of Gratian’s Decretum see Peter Landau, ‘Gratian and the Decretum Gratiani’, The History of Canon Law in the Classical Period, 1140-1234: From Gratian to the Decretals of Pope Gregory IX, ed. Wilfried Hartmann and Kenneth Pennington (History of Medieval Canon Law; Washington, D.C.: 2008) 22-54. 25 KENNETH PENNINGTON The dictum at the beginning of D.45 is strange: “Sequitur ‘non percussorem’ ”. Friedberg’s footnote explains that this is a reference to 1 Timothy c.3 verses 2-5, which reads: Oportet ergo episcopum irreprehensibilem esse, unius uxoris virum, sobrium prudentem, ornatum, pudicum, hospitalem, doctorem, non vinolentum, non percussorem, sed modestum, non litigiosum… non neophytum. A little searching in the Decretum reveals that Gratian cited the first part of 1 Timothy at the beginning of D.36, and that he dealt with “ornatus et hospitalis” in D.40 and D.41-D.42, “pudicus” in D.43, a “vinolentus” and clerical drunkeness in D.44, “non percussorem” in D.45, “non litigiosum” in D.46 7, and “neophyti” in D.48 as guidelines to episcopal rectitude 8. After D.48 Gratian abandoned 1 Timothy as a framework for discussing clerical discipline. In Gratian’s notation at the beginning of D.45 in Gratian I and II he seems to have assumed that the reader would remember from his reference to 1 Timothy in D.36 and from his using words from 1 Timothy in D.40-44 that “non percussorem” followed “vinolentum” in the epistle of the Pseudo-Paul. The dictum in St. Gall was more helpful as a aide-mémoire than the dictum in Gratian I and II: 9 Neque percussor iuxta eundem (i.e. the author of 1 Timothy) esse debet. Non enim oportet episcopum irascibilem et animi esse turbati ubi percutiat quia patiens debet esse et eum sequi qui dorsum posuit ad flagella. This more extensive reminder to the reader was necessary there, perhaps, because St. Gall did not include the texts in D.44 on drunkeness nor did he include the texts from D.40-41-42-43. St. Gall did contain D.46. Do these omissions provide evidence that St. Gall is an abbreviation? I think not. In St. Gall, Gratian began his gloss to 1 Timothy with D.36 and continued to build his commentary in D.45-46. He added to his analysis of the episcopal office and clerical discipline in a logical way in Gratian I and II. In St. Gall and Gratian I the focus of D.45 was on irascible prelates who abused their subjects. Although the connection between Christian 7 1 Timothy 3.3. St. Gall, Stiftsbibliothek 673, established the general pattern that Gratian I followed. 8 It was quite natural that Gratian would have used 1 Timothy as an outline for episcopal and clerical rectitude. 9 St. Gall, Stiftsbibliothek 673 p.13a. 26 THE LAW’S VIOLENCE AGAINST MEDIEVAL AND EARLY MODERN JEWS prelates and Jews is not obvious, Gratian inserted three canons on the legal status of Jews in Gratian II after D.45 c.2. Pope Gregory I’s letter provided the text for c.3, Pope Gregory IV’s for c.4, and the Fourth Council of Toledo (A.D. 633) canon 57 was the final addition. Pope Gregory I’s letter reminded Pascasius, the bishop of Naples, that the Jews of Naples should not be prevented from celebrating their festivities. Pope Gregory IV’s letter emphasized that prelates should not correct their subjects harshly, including, he stated, the “presumption of the Jews”. The most important text in D.45 was the canon from the Council of Toledo that stipulated that that Jews should not be coerced to accept the Christian faith, but if they became Christians, they should be compelled to remain Christian. This canon circulated widely in pre-Gratian canonical collections. Twenty-two extant collections contain it. Uncharacteristically, Gratian resolved the question without creating any distinctions. His reading of the conciliar canon was brutally simple: “Jews should not be forced to convert to the faith, but if they were converted, they must remain Christian” 10. If a Jew was baptized, he became a Christian. D.45 became the place where all later jurists talked about the forced conversion of Jews. Gratian’s successors developed a more flexible doctrine. They created a distinction between conditional and absolute coercion, which was determined by the Roman law principles but not by the language of Roman law 11. They concluded that a forced conversion or baptism of a Jew was valid if bestowed under only moderate terror. The text of the conciliar canon was not precise on what ceremony or step constituted a valid conversion. It did state that if Jews had been baptized and received the major sacraments, they could be coerced to remain Christians (D.45 c.5): De Iudeis autem precepit sancta sinodus, nemini deinceps uim ad credendum inferre. “Cui enim uult Deus miseretur, et quem uult indurat”. Non enim tales inviti salvandi sunt, sed volentes, ut integra sit forma iustitie. Sicut enim homo propria arbitrii voluntate serpenti 10 D.45 c.5; Gratian concluded in his dictum after c.4 that this conciliar canon meant that “Iudei non sunt cogendi ad fidem, quam tamen si inviti susceperint, cogendi sunt retinere”. On the Jews in canon law see Walter Pakter, Medieval Canon Law and the Jews (Abhandlungen zur rechtwissenschaftlichen Grundlagenforschung 68; Ebelsbach, 1988). 11 For a detailed discussion of when fear invalidated an action, see Stephan Kuttner, Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX: Systematisch auf Grund der handschriftlichen Quellen dargestellt (Studi e Testi 64; Città del Vaticano: 1935, reprinted 1961) 299-314. 27 KENNETH PENNINGTON obediens periit, sic vocante se gratia Dei proprie mentis conversione quisque credendo salvatur. Ergo non vi, sed libera arbitrii facultate ut convertantur suadendi sunt, non potius inpellendi. Qui autem iampridem ad Christianitatem coacti sunt, sicut factum est temporibus religiosissimi principis Sisebuti, quia iam constat eos sacramentis diuinis associatos, et baptismi gratiam suscepisse, et crismate unctos esse, et corporis Domini extitisse participes, oportet, ut fidem, quam vi vel necessitate susceperint, tenere cogantur, ne nomen Domini blasphemetur, et fides, quam susceperunt, vilis ac contemptibilis, habeatur. (This holy synod commands that Jews not be forced to believe. Rather, God has mercy on those he chooses and punishes others he does not (Rom. 9:18). The unwilling must not be saved but only the willing, as an example of a complete model of justice. As man perished by obeying the serpent with his own will, he is saved through the grace of God by believing. Therefore the Jews are not to be converted by force but by persuasion and through their free will. Those who have already been forced to convert to Christianity as had been done in the time of the most pious ruler Sisebut, since they have accepted the divine sacraments, received the grace of baptism, the anointed with holy oil, and taken the body of the Lord, they must remain in the faith that they received whether by force or by necessity so that the name of the Lord and the faith they hold not be considered vile and contemptible). Must a Jew have received all the appropriate sacraments to become a Christian? Christian thinkers had very early on concluded that a valid baptism was the key to becoming a Christian 12. An anonymous glossator commented on the words “willing, as an example of a complete model of justice”, “Namely to come to the sacrament of baptism” 13. From the early twelfth century on, baptism became the liturgical act and the sacrament that defined a Christian from a non-Christian and established “citizenship” within the Christian church. The most important canonist of the twelfth century, Huguccio, established the jurisprudential ground rules for defining what constituted a forced valid conversion or baptism. In a gloss to the Toledo conciliar canon, Huguccio explored what constituted consent of a Jew to baptism. Rufinus had already defined coercion as either absolute or 12 Jean Gaudemet, ‘ “Baptismus, ianua sacramentorum” ’ CJC, c. 849: Baptême et droits de l’homme’, Rituels: Mélanges offerts au R.P. Pierre-Marie Gy, edd. P. de Clerck and E. Palazzo (Paris 1990) 273-282, reprinted in La doctrine canonique médiévale (Collected Studies; Aldershot-Brookfield 1994). 13 Köln, Erzbischöfliche Diözesan- und Dombibliothek 127, fol. 43v interlinear gloss to D.45 c.5 s.v. volentes: “scilicet ad sacramentum salutis uenire”. 28 THE LAW’S VIOLENCE AGAINST MEDIEVAL AND EARLY MODERN JEWS conditional when he discussed the validity of oaths 14. Huguccio applied the terminology to coerced baptisms 15: I distinguish between absolute and conditional coercion: If anyone is baptized by absolute coercion, for example if one person tied him down and another poured water over him, unless he consents afterwards, he ought not to be forced to embrace the Christian faith. Because he believed that baptism was valid whether willing or unwilling, awake or sleeping, he concluded posterior consent made a Jew a Christian 16. Not all later jurists accepted Huguccio’s reasoning. They held that invalid acts could never been validated by later consent. For example, invalid confessions extracted by torture were never valid ex post factum 17. Huguccio specified in some detail exactly what constituted conditional coercion 18: If someone is baptized under conditional coercion, for example if I say I will beat, rob, kill, or injure you, unless you are baptized, he can be forced to hold the faith, because from conditional coercion an unwilling 14 Rufinus to C.22 q.5 c.1 s.v. Qui compulsus, Summa decretorum, ed. Heinrich Singer (Paderborn: 1902, reprinted Aalen: 1963) 399-402. 15 Huguccio, Summa to D. 45 c.5 s.v. associatos unctos corporis Domini, Lonsle-Saunier, Archives départementales du Jura 16, fol. 61v, Admont, Stiftsbibliothek 7, fol. 61v, Vat. lat. 2280, fol. 44r: “De coactione autem distinguo, aut est absoluta aut est conditionalis. Si absoluta coactione quis baptizetur, puta unus tenet eum ligatum et alius superfundit aquam, nisi (ubi Lons-le-Saunier) postea consentiat, non debet cogi ad fidem Christianam tenendam”. Mario Condorelli, I fondamenti giuridici della tolleranza religiosa nell'elaborazione canonistica dei secoli XII-XIX: Contributo storico-dogmatico (Università di Catania Pubblicazioni della Facoltà di Giurisprudenza 36; Milano 1960) 55-56 prints this text from Franz Gillmann, Die Notwendigkeit der Intention auf Seiten des Spenders und des Empfängers der Sakramente nach der Anschauung der Frühscholastik (Mainz: 1916) 16. 16 Ibid.: “quia sive volens sive nolens, vigilans sive dormiens quis baptizetur in forma ecclesie sacramentum accipit”. 17 See my essay ‘Torture and Fear: Enemies of Justice’, Rivista internazionale di diritto comune 19 (2008) 203-242. 18 Huguccio, Summa to D. 45 c.5 s.v. associatos unctos corporis Domini, Lonsle-Saunier, Archives départementales du Jura 16, fol. 61v, Admont, Stiftsbibliothek 7, fol. 61v, Vat. lat. 2280, fol. 44r: “Si vero coactione conditionali quis baptizetur, puta: te verberabo vel spoliabo bel interficiam vel leda, nisi baptizeris, debet cogi ut fiedm teneat, quia per talem coactionem de nolente efficitur quid volens, et volens baptizatur. Voluntas enim coacta voluntas est et volentem facit, ut xv. q.i. Merito (C.15 q.1 c.1)”. 29 KENNETH PENNINGTON person is made into a willing person, and as a willing person is baptized. A coerced choice is a choice, and makes consent. Thirteenth-century jurists found Huguccio’s definitions of conditional coercion persuasive. Raymond of Peñafort (ca. 1234) accepted conditional coercion conferred a valid baptism but did not accept Huguccio’s conviction that absolute coercion could confer a valid sacrament. Pope Innocent III had issued the decretal Maiores in which almost the entire last part of De Iudeis was quoted. The pope declared that if a Jew had adamantly and steadfastly refused to accept baptism, the sacrament and the conversion were not valid 19. Innocent’s decretal was the last piece of papal canonical jurisdiction that directly touched upon the issue of coerced baptisms. Maiores and De Iudeis left many questions open. A significant issue was the fate of Jewish children in families in which one of the parents became Christian or in which the parents did not convert, but a child was baptism. A case decided in 1229 at the papal curia about the status of a Jewish child became a bench mark for deciding the rights of the father, mother and child for centuries. Raymond de Peñafort included the appellate decision in the Decretales of Gregory IX. 20 A Jew in Strasbourg had converted to Christianity and left a staunchly Jewish wife and four year old son behind. He had petitioned the bishop to grant him custody of his son. He wanted to baptize him and raise him as a Christian. The man made only one argument, at least only one argument was reported in the decision: his son should be given to him immediately to be raised a Catholic. Remarkably, the mother appeared before an episcopal synod which heard the case and put forward arguments that still resonate with maternal love. The boy was young, she pleaded. He needed the consolation of his mother more than his father. His gestation had been difficult, his birth painful, and his post partum strenuous. From these facts the court could understand that the legitimate conjoining of a man and a woman is called matrimony, not patrimony. A mother’s rights should not be abrogated to appease a paternalistic jurisprudence. It was a strikingly clever argument that the jurists pondered for centuries afterwards. Her last argument was especially touching. The bishop had custody of the boy during the hearing, but his mother begged that the boy should remain with her since her husband had only recently converted. Failing that solution, neutral custodians should take care of 19 Summa de penitentia (Rome 1603) 33: “quia corporaliter cum violentia traherentur et super infunderetur aqua, non conferretur character baptismi, extra de bapt. et eius effectu, Maiores, circa finem (3 Comp. 3.34.1 = X 3.42.3)”. 20 X 3.33.2. 30 THE LAW’S VIOLENCE AGAINST MEDIEVAL AND EARLY MODERN JEWS the boy until he reached majority 21. A mother’s plea did not move the court. After the mid-thirteenth century, the jurists used a new genre of literature, the consilium, to expand their discussion of the legal status of converted Jews and their children 22. Two of the earliest consilia I know that deal with the legal status of Jews date from the second half of the thirteenth century. They treated the baptism of Jewish children and much more. A Dominican inquisitor, Florio da Vicenza, was particularly interested in relapsed baptized Jews who had “Judaized” 23. A similar problem was posed by Jews who persecuted other Jews who had converted to Christianity. The inquisitor’s holy zeal led him into uncharted legal territory. A number of jurists from Padua or possibly Bologna responded to his questions about several cases on his docket that involved Jews. The questions posed by Brother Florio indicate that Jews were only recently coming to the attention of inquisitors and also reveal how little help the normative texts in the canonical collections were in solving more intricate problems. The jurists dealt with eight questions that Florio must have asked them to answer. The first was whether relapsed Jews should have the legal status of heretics and be subject to the inquisitor’s court. The answer was simply yes, without any explanation of their reasoning 24. 21 X 3.33.2: “Ad quod illa respondit, quod, cum puer adhuc infans exsistat, propter quod magis materno indiget solatio quam paterno, sibique ante partum onerosus, dolorosus in partu, [ac] post partum laboriosus fuisse noscatur, ac ex hoc legitima coniunctio maris et feminae magis matrimonium quam patrimonium nuncupetur, dictus puer apud eam debet convenientius remanere, †[quam apud patrem ad fidem Christianam de novo perductum transire debebat, aut saltem neutrius sequi, priusquam ad legitimam aetatem perveniat. Hinc inde multis aliis allegatis: tu autem praedicto puero medio tempore in tua potestate retento, quid tibi faciendum sit in hoc casu nos consulere voluisti (pars decisa de Decretales).]”. 22 Mario Ascheri has devoted a lifetime of scholarship to the medieval and early modern consilia, e.g. ‘ “Consilium sapientis”, perizia medica e “res iudicata”: Diritto dei “dottori” e istituzioni comunali’, Proceedings of the Sixth International Congress of Medieval Canon Law, Berkeley, California, 28 July-2 August 1980, edd. Stephan Kuttner and Kenneth Pennington (Monumenta iuris canonici, series C 7; Vatican City: 1980) 532-579 and ‘Legal Consulting in the Civil Law Tradition’, Legal Consulting in the Civil Law Tradition, edd. Mario Ascheri, Ingrid Baumgärtner, and Julius Kirshner (Studies in comparative legal history; Berkeley 1999) 11-53. Space does not permit me to follow my subject to the early modern period through the jurists’ consilia. 23 Riccardo Parmeggiani, I consilia procedurali per l’inquisizione medievale (1235-1330) (Bologna: 2011) 121-122; Bolognese jurists repeated much of the consilium in their own that Parmeggiani prints on pp. 126-128. 24 Ibid. 124. 31 KENNETH PENNINGTON The second question was more ominous and threatening to the Jewish communities. Could Jews who aided and abetted relapsed Jews be tried in inquisitorial courts as “supporters, receivers, and defenders of heretics?” 25. The jurists said yes. They also provided insight into their reasoning: the Jews held their legal rights in Christian society only as a privilege, not as a right. The jurists concluded by citing legal maxim that had long been embedded in canonical jurisprudence: those that abused their privileges lost them 26. The next two questions involved procedure. When and how could Jews be tortured? If the proofs contained “presumptiones violentae,” that is evidence that fell just short of complete proof, Jews could be tortured. This standard was the common one of the Ius commune for determining whether a person could be tortured. 27 It is striking that the jurists applied the same principles to Jews as they did to Christians. They also concluded that Jews could not be tortured in ways that would draw blood 28. This limitation seems to imply that the jurists did not consider relapsed Jews to have committed a crime. The other points in the consilium covered Jews who used their synagogues to wash away baptisms of Christians or in which they circumcised Christians. The synagogues should be destroyed 29. The seventh question in the consilium was what should be done with a Jewish child of a baptized Jew (i.e. Christian), who was away or in regions unknown. Could the child remain with Jewish mother? The jurists did not hesitate to take the child away from his mother on the grounds of the “favor fidei”. It had become the common opinion of the 25 Ibid: “dicunt eum posse et debere procedere contra eos sicut contra fautores, receptores et defensores hereticorum”. This language was taken from decretals and secular legislation; see my ‘Pro peccatis patrum puniri: A Moral and Legal Problem of the Inquisition’, Church History 47 (1978) 137-154, reprinted with additions in Popes, Canonists and Texts, 1150-1550 (Aldershot 1993) XI pp. 3-16, especially at 11-12. 26 Ibid. 124: “Licet Iudei ab ecclesia in suis ritibus tollerentur, tamen ratione delicti quod in ecclesiam committunt, sunt severitate ecclesiastica coherecendi. Et privilegium meretur amittere qui permissa sibi abutitur potestate”. See D.74 c.6 and C.11 q.3 c.63 for the earliest appearance of this maxim in canon law. It did not have its roots in Roman law. 27 Pennington, ‘Torture and Fear: Enemies of Justice’, Rivista internazionale di diritto comune 19 (2008) 203-242. 28 Parmeggiani, I consilia procedurali 124: “potest et debet eam extorquere suppliciis citra effusionem sanguinis per executorem vel iudicem secularem”. 29 Ora Limor, ‘Christians and Jews’, The Cambridge History of Christianity, 4: Christianity in Western Europe c. 1100-1500, ed. Miri Rubin and Walter Simons (Cambridge: 2009) 494-556, with bibliography; also R. Po-Chia Hsia, The Myth of Ritual Murder: Jew and Magic in Reformation Germany (New Haven 1988). 32 THE LAW’S VIOLENCE AGAINST MEDIEVAL AND EARLY MODERN JEWS jurists, following the precedent of Pope Gregory IX’s decretal (X 3.33.2) (discussed above), that a Jewish child of a mixed marriage should live with the Christian parent 30. The Church, the local bishop, or the Christian prince should take the child to be raised by Christians who were not suspect and who were baptized. They granted an exception: unless the child had the “impediment of a contrary will (obex contrariae voluntatis)”. This strange terminology dates back to a similar phrase of Saint Augustine and had been employed by Pope Innocent III, theologians and by canonists to evaluate the intentions of those who received baptism in order to judge whether the baptism was validly bestowed 31. Pope Nichaolas III declared in a letter dated 1277 that Jews who converted under threats of death cannot return to Jewish practices because they were not “absolutely and exactly coerced (absolute seu precise coacti)”. Gradually the “praecisa coactio” replaced “absoluta coactio” in the terminology of the jurists 32. Pope Boniface VIII used that terminology in his decretal letter Contra Christianos that was later included in his Liber Sextus. The pope also confirmed the opinions of the jurist who advised Florio da Vicenza that relapsed Jews were to be equated with heretics and that any Jews who aided or abetted those Jews who had apostatized were subject to the jurisdiction of Christian courts and could be punished with the same penalties as those imposed upon relapsed Jews 33. Gratian inclusion of the Fourth Council of Toledo’s fifty-seven canon on Jews shaped the legal discussion of the legal status of baptized Jews for centuries. The puzzle must remain unresolved: why did Gratian not include canons on Jews in earlier recensions? Partially the answer lies in the structure of his Decretum. Unlike all earlier collections Gratian did not divide his collection into books and titles. The major pre-Gratian canonical collections, which were all divided into books and titles, had often devoted a section to the Jews 34. None of his distinctiones and 30 Pakter, Medieval Canon Law and the Jews 318-321. Parmeggiani, I consilia procedurali 125: “parvulus filius Iudei baptizati existens apud matrem que remansit in Iudaica cecitate patre absente in remotis partibus et ignotis, favore fidei est accipeindus ab eo per ecclesiam vel loci ordinarium seu principem Christianum, cuius subest dominio; et nutriendus apud fideles non suspectos et baptizandus, nisi obex in eo contrarie voluntatis”. On the phrase “obex contrariae voluntatis” and issue of forced baptism, see Condorelli, I fondamenti giuridici della tolleranza religiosa 88-105. 32 “Praecisa coactio” is not a term of Roman law; the Roman jurists did use “praecise” in several different contexts, e.g. Dig. 36.3.1.20. 33 VI 5.2.13. 34 E.g. Burchard of Worms, Decretum and Polycarpus, Collectio canonum. 31 33 KENNETH PENNINGTON causae dealt with Jews in Christian society. When he decided to include canons on Jews, his structure limited the places where he could place material. Consequently, all the canons he included treating the legal status of Jews are awkwardly placed. Perhaps that is a metaphor for the status of Jews and other non-Christians in medieval Christian society. Later consilia provide evidence that the forced conversion and baptism of Jews by Christians remained a threat to Jewish families in the late Middle Ages and into the early modern era. This act of Christian intolerance raised a number of legal issues: were forced baptisms of Jewish adults, servants or children below the age of twelve valid? Guido de Baysio and some others argued that Christian princes could compel the baptism of Jewish children because Jews had the legal status of slaves 35. Guido’s argument was rejected by most jurists but, as we will see, was resurrected in the sixteenth century. There were two contrary opinions circulating among the theologians. The distinguished theologian Duns Scotus argued that Jewish children should be baptized and raised Christian 36. Thomas Aquinas, however, insisted that Jews should never be baptized unwillingly. Other questions circulated among jurists and theologians: If Jewish children had received a valid baptism could they be taken from their families? If these children could remain with their families, what guarantees should the parents give to ensure that the children would remain Christian? The jurists took the language directly from earlier papal and imperial decrees in which the legal status of heretics and their supporters were equated. There was a period of tolerance, at least in theory. Two jurists, Gaspar Calderini († 1390) 37 and Petrus de Ancharano († 1415) 38, dealt with the baptism of juvenile and adult Jews at the end of the fourteenth 35 Guido de Baysio, Rosarium (Venice 1480 and 1495) D.45 c.3, s.v. blandimentis (unfoliated): “credo quod principes quorum sunt servi Iudaei, possunt eis auferre filios parvulos absque ommi iniuria, cum illi in filiis non habeant potestatem tanquam servi, ut patet in eo quod legitur et notatur xxxii. q.iii.(recte iiii.) Sicut (C.32 q.4 c.8) Idem principes possent eosdem parvulos tanquam mancipia sua aliis dare vel vendere in servitutem, invitis parentibus, ita possunt eos aufferre ad baptizandum, et in hoc mererentur; dum tamen hoc non faciant propter compellendos hoc modo parentes ad fidem, sed propter salvandos pueros per fidei dacramentum, ad cuius perceptionem sufficit, quod non inveniat obicem contrariae voluntatis”. This gloss had wide circulation when it was attached to Raymond of Peñafort’s Summa confessorum (Rome 1603) 33. 36 Pakter, Medieval Canon Law and the Jews 327; Edward A. Synan, The Popes and the Jews in the Middle Ages (New York 1965) 180. 37 H.J. Becker, ‘Calderini, Gaspare’, Dizionario biografico degli Italiani 16 (1973) 605-606. 38 See my essay (with Ennio Cortese) that will be published in Dizionario biografico dei giuristi italiani (secc. XII-XX) (2013). 34 THE LAW’S VIOLENCE AGAINST MEDIEVAL AND EARLY MODERN JEWS and the beginning of the fifteenth centuries. Both consilia have been translated into English and printed with their Latin texts 39. Although Ancharano was a much more important jurist, it was Calderini’s consilium that was continuously cited for the next two centuries 40. Calderini’s consilium became a touchstone for later jurists because he argued vigorously that Jewish children under twelve years cannot be baptized against their parents’ will. His most provocative argument was that it would not be congruent with the great favor of the faith, as Pope Gregory IX’s judges had alleged, but that it would be a violation of justice to take children away from his father 41. The second part of his consilium dealt with the question if a Jewish child had been validly – if perhaps illegally? – baptized, could he be taken from his parents? His solution was, again, to protect the rights of the parents. The Jewish parents were required to provide a surety that they would not undermine their child’s Christian belief and would not stop the child from leaving them when he reached his majority 42. 39 A.M. Kleinberg, ‘Depriving Parents of the Consolation of Children: Two Legal Consilia on the Baptism of Jewish Children’, De Sion exhibit lex et verbum domini de Hierusalem: Essays on Medieval Law, Liturgy, and Literature in Honour of Amnon Linder, ed. Yitzhak Hen (Turnholt 2001) 129-144, at 139-144. 40 Calderini wrote other consilia that dealt with Jews: two other consilia under the title De Iudaeis, one dealing with a case of a Jew who had publicly proclaimed “Nascha il vermocane al papa et chilse papa, dio non poterebbe fare che esso fusse papa. Et se io avesse iddeio el papa el veschovo nelle mane Io trarei loro gli occhi”. The other consilia treated the issues of whether a Jew could lease a house of the church perpetually and whether they could make valid wills. 41 Kleinberg, ‘Depriving Parents’ 139 (variations in Kleinberg’s text are noted with (K): “Nec obstat quod magnus facor debeatur fidei, tamen non debet preberi contra iustitiam, de foro compet. Ex tenore (X 2.2.11) et de donat. inter virum et uxorem, Nuper (4.20.6), et contra iustitiam [iustitia K] essest auferre filios patribus [filio parentibus K]”. I have used editions of Calderini’s consilia 1472, 1491, 1497, 1582. The most useful guide to the printed consilia collections is edited by Peter Pazzaglini, and Catherine A. Hawks, Consilia: A Bibliography of Holdings in the Library of Congress and Certain Other Collection in the United States (Washington: Library of Congress, 1990). 42 Kleinberg, ‘Depriving Parents’ 139-142: “Vnde propter talem suspitionem vel presumptionem dico quod ipsi parentes prestent idoneam cautionem et sufficientem de ipso filio cum pervenerit ad etatem legitmam qua [que K],videlicet, fit doli capax, quod permittent libere abire et eundem tunc in sua cohabitatione nullatenus retinebunt... Eo ergo casu quo [quod K] prestatur dicta cautio, restituatur filius dictis parentibus”. Collated with 1472, 1491, 1497, 1582 editions. 35 KENNETH PENNINGTON Petrus de Ancharano’s consilium as it is preserved is a frustrating document 43. The case is not described, and we are left to reconstruct it on the basis of his argument. It seems that a Jewish boy was baptized by a lay person. Petrus argued that the baptism was valid only if there was pressing necessity because the priest did not preside and holy water was not used. Consequently, this baptism was invalid and the Jewish child remained a Jew 44. As we will see, however, necessity becomes an important principle in deciding whether a baptism was valid. A century later two distinguished jurists, Matthaeus de Afflictis (1448-1528) and Paulus Petrus Parisius (1473-1545) dug into the issue of Jewish forced conversions and baptisms. Matthaeus worked and taught in Naples under the Spanish kings of the Kingdom of Naples 45. At the request of Serenissimus King Frederick IV of Naples (1496- †1504) he wrote a undated consilium on whether the King of Portugal, probably Manuel I (1495-1521), could legally compel the relatives of a certain Jew named Joseph to have his son, also named Joseph, baptized by a priest, while Joseph the father was absent 46. The case must have come to Frederick’s attention ca. 1497 when Manuel began a vicious campaign of baptizing Jewish children and sending them to live with Christian; 43 Ancharano wrote three other consilia that treated Jews: Consilium 15: One dated September 1395 in which he discussed a case in which a Jew in Cesena threw shit and other unclean objects at a crucifix bearing the image of Christ. The potestà of Cesena claimed jurisdiction over the case, but the bishop disputed his juridiction. Petrus decided that the podestà had jurisdiction. Consilium 243: Could a Christian prince promulgate a statute that permitted Jews to claim usurious payments in a Christian court (yes, pro bono publico!). Consilium 271: Jews may not be elected to public offices. 44 Kleinberg, ‘Depriving Parents’ 142-144: “Quod ergo unus, non sacerdos, nulla necessitate cogente, baptizando pueram Hebreum possit subvertere tot sacrorum canonum traditiones et parentibus subtrahere solatium filiorum discretione carentium inqiquissimum videretur. Et ideo (immo K) concludo dictum puerum non esse baptizatum per rationes et iura predicta que possunt multis aliis rationibus confirmari, gratia brevitatis omissis”. I have used Petrus de Ancharano’s editions of 1490 and 1539. 45 Ernst Holthöfer, ‘De Afflictis (D’Afflitto), Matthaeus’, Juristen: Ein biographisches Lexikon von der Antike bis zum 20. Jahrhundert, ed. Michael Stolleis (München 1995) 153-155, who does not mention Matthaeus extensive consilia. 46 The consilia can be valuable sources for history because they can contain reports of cases found nowhere else. I have written about a trial of Queen Sibílla Fortià of Aragon in ‘Women on the Rack: Torture and Gender in the Ius commune’, Recto ordine procedit magister: Liber amicorum E.C. Coppens, edd. Louis Berkvens, Jan Hallenbeek, Georges Martyn, and Paul Nève (Iuris Scripta Historica 28; Brussells: 2012) 243-257, at 245-248. 36 THE LAW’S VIOLENCE AGAINST MEDIEVAL AND EARLY MODERN JEWS adults who refused baptism were burnt 47. Manuel’s onslaught against Jewish families was, perhaps, the worst example of Christian intolerance before the twentieth century. Matthaeus began his consilium with the arguments, beginning with the thirteenth-century gloss of Johannes Teutonicus, that Jews must not be forcibly baptized or converted. After that he cited a dozen jurists and a half dozen theologians who endorsed Johannes’ opinion 48. He reached back into the tradition, however, and adopted the argument of Guido de Baysio that Jews had the legal status of slaves 49. The prophecy of Elias that Jews must be present at the end of the world did not deter Matthaeus. There will always be Jews on some island waiting to be saved 50. Rather surprisingly Matthaeus concluded Jewish children should not be baptized if their parents were unwilling 51. Nevertheless, Matthaeus reverted to the position taken by a number of theologians: a conditional baptism was valid, even if the parents were unwilling. If the baptism was valid, even if the parents were unwilling, then the child was 47 François Soyer, The Persecution of the Jews and Muslims of Portugal: King Manuel I and the End of Religious Tolerance (1496-7) (The Medieval Mediterranean, Peoples, Economies and Cultures, 400-1500, 69; Leiden 2006) 194-239 and ‘King Manuel I and the expulsion of the Castilian Conversos and Muslims from Portugal in 1497: new perspectives’, Cuadernos de Estudos Sefarditas 8 (2008) 33-62. Also Giuseppe Marcocci, ‘ “... per capillos adductos ad pillam”: Il dibattito cinquecentesco sulla validità del battesimo forzato degli ebrei in Portogallo (1496-1497)’, Salvezza delle anime disciplina dei corpi: Un seminario sulla storia del battesimo, ed. Adriano Prosperi (Pisa 2006) 339-424 . For the later history of the Portuguese Jews in Italy see Lucia Fratterelli, ‘Sul battesimo dei bambini ebrei: Il caso di Livorno’, Salvezza delle anime disciplina dei corpi: Un seminario sulla storia del battesimo, ed. Adriano Prosperi (Pisa 2006) 449-482. 48 Matthaeus de Afflictis, Decisiones sacri consilii neapolitani (Lyon 1552) Decisio 151, pp. 271-275. 49 Ibid. 272: “Sed contrariam partem, scilicet, quod Rex Portugalliae potuit compellere consanguineos huius infantis, et ipsum infantem ad baptism etiam sine consensu parentum, hoc voluit Arch. in dicto capitulo Qui Syncera (D.45 c.3, see above n. 34), per rationem quia Iudaei sunt servi Regis”. 50 Ibid. 273: “Nec obstat illa prophetia Esaiae quia potest intelligi de fidelibus, vel potest intelligi de aliquibus Iudaeis, qui sunt in aliqua insula, quia tunc salvi erunt”. 51 Ibid. 273: Sed posito propter authoritatem tantorum patrum, quod parvuli Iudaeorum invitis parentibus non possint baptizari, ut tenet beatus Thomas de Aquino per tres rationes, quas refert et sequitur beatus Antoninus in secunda partre Summae, tit. xii. capitulo ii. § Pueri Iudaeorum (Antoninus, Summa sacrae theologiae, Part II. title 12 c.2 § 4, ed. Venice 1571, p. 361r)”. 37 KENNETH PENNINGTON a Christian 52. With that Matthaeus proclaimed that the theological and legal tradition supported his conclusion 53: I am of the opinion that the Jewish child ought not be given back to the father, Joseph, because of the favor of the Christian faith and lest the baptized child would fall into heresy by living with his Jewish father. Many theologians and doctors of canon law in the council of his majesty were of my opinion. Matthaeus’ opinion in the climate of the age is hardly shocking. In a Spanish court under a Spanish king during a period in which Jews were being killed, burned, exiled, and expelled en masse, unwilling baptisms might seem to be a humane policy. Petrus Paulus Parisius was a cardinal of the Roman church, an auditor of the Roman curia, a professor of canon law at Bologna. In spite of his name he was born in Calabria and had been married, during which time he produced a son. He died in Rome, May 1545 54. Panciroli called him a man of great erudition but of dirty habits because he sold his consilia for gold 55. If Panciroli is right, Parisius made a few ducats from his consilium on the Jews. It was a long disquisition on almost everything that one would want to know about the relationship of Jews and the law 56. Beside the issue of the baptism of Jews, he discussed heretics and a number of principles and problems that arise in legal procedure. One of the most interesting sections of his consilium was whether Old Christians (i.e. Portuguese who were born Christians) could testify in court against New Christians (i.e. converted Jews). He concluded that the Old Christians were “capital enemies (capitalis inimicitia)” of the Jews. This was a procedural term in the Ius commune 52 Ibid. 274: “Nam in isto baptismo huius pueri omnia requisita ad baptismum intervenerunt, videlicet materia, et forma, et intentio seu voluntas sacerdotis baptizantis, et voluntas parentis spiritualis offerentis eum in baptismo, Et sic in fide parentis spiritualis recipit characterem baptisimi ipse infans, qui non habet nec nolle nec velle, ut dicit beatus Antoninus in dicto § Pueri Iudaeorum”. 53 Ibid. 275: “Sum igitur voti, quod non debeat iste parvulus filius Iudaei baptizatus restitui dicto Ioseph patri suo propter favorem fidei Christianae, ne dictus baptizatus morando cum patre Iudaeo incidat in haeresim. § Et in hoc voto fuerunt multi Thelogi et doctores iuris canonici de Consilio suae maiestatis. Et ita postea executum fuit”. 54 According to Angelus Zavarroni, Bibliotheca Calabra sive illustrium virorum Calabriae (Naples 1753) 67. 55 Guido Panciroli, Claris legum interpretibus libri quatuor (Leipzig: 1721) 267. 56 Petrus Paulus Parisius, Consilia (4 vols. Frankfurt am Main 1590) vol. 4, consilium 2, fol. 5r-10v. 38 THE LAW’S VIOLENCE AGAINST MEDIEVAL AND EARLY MODERN JEWS for a witness whose views were so notoriously biased that the person could not testify in court. It is quite remarkable that Parisius would include all Portuguese Christians in that category. The tales of brutality he must have heard shocked him 57. In any event, if Portuguese judges would have accepted his arguments, the inquisitorial courts would have ceased to exist. His main objective, however, was to review the validity of King Manuel of Portugal’s actions against Jews. It was probably written for Manuel’s son, King John III (1521-1557). Besides the baptism of Jews, he discussed a privilege that Manuel bestowed on the newly converted Christians that their faith could not be questioned by the courts for twenty years. The issue was whether King John could abrogate the privileges 58. Parisius concluded that a contract was a contract and that the king could not break his father’s agreements 59. Parisius’ first sentence would not give any Jew a sense of relief: he asserted that to be a Jew was a crime but softened the blow by adding that the crime was not punishable 60. He also rejected the argument that 57 Ibid. fol. 7r: “An veteres Christiani dictorum regnorum et dominorum possint admitti in testes contra ipsos, ex eo quia sunt capitales inimici ipsorum et contra ipsos coniurati, conspiratores et complices, et armata manu ipsorum noviter conversorum absque causa interfecerunt quinque millia et plus et fuerunt et sunt coniurati contra eos falsa testimonia proferre... dico contrarium ex quo propter mortem et occisionem tantorum noviter conversorum sine causa patratam per ipsos veteres et antiquos Christianos fuit et est causata... Qua capitali inimicitia stante proculdubio ipsi veteres Christiani contra istos noviter conversos in testes recipi et admitti minime possunt”. 58 Soyer, Persecution 224, cited from the chronicle of Damião de Góis. 59 Ibid. fol. 8v: “Ex istis insuper inferri potest ad resolutionem sextae dubitationis in qua queritur an Ioannes rex predictus potuerit et possit tale privilegium et patris et suum revocare et contra illud venire. In qua disceptatione dicendum videtur tale privilegium et concessionem potuisse et posse revocari etiam sine causa...”. His conclusion, however, was that King John could not revoke the privilege because it was a contract, fol. 9r “Verum igitur erit, regem ipsum Ioannem dictum privilegium et concessionem non posse revocare, ipsumque teneri illa observare in his, de quibus disponere potuit, cum iam transiverint in vim contractus et conventionis”. The inviolability of contracts had a long history in the Ius commune; see K. Pennington, The Prince and the Law: 1200-1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley-Los Angeles 1993) 125-129, 154-155, 205-209, 278-281. 60 Ibid. fol. 5v: “Etsi esse Iudaeum sit crimen et delictum, ut tradit Accursius in l. Sed si res de legat. i. (Dig. 30.1.40) Ex eo quoniam reprobatam superstitionem prosequitur... Tamen quo ad iudicem et forum conteniosum non est proprie delictum punibile”. In spite of Parisius, Accursius does not say that being a Jew is a crime. 39 KENNETH PENNINGTON Jews were or could be slaves of Christian princes 61. In rejecting this argument of Guido de Baysio, but accepted by some later jurists, he called into question King Manuel’s subjecting large numbers of Jews to slavery during his campaign to cleanse Portugal of non-Christians. Parisius continued his discussion of Jews and the law by accepting the tradition that if a Jew were baptized by “vis praecisa” the sacrament was not bestowed, and the Jew remained a Jew. If the baptism was administered with “vis coacta (conditionalis)” the sacrament was valid. He mentioned that those Jews who had been baptized during the reign of King Manuel (of good memory!) were not made Christians. 62 Parisius struggled to make sense of the decision of the Neapolitan court reported by De Afflictis, which had gained, it seems, notoriety. He knew that it flew in the face of the greater authority and the common opinion of the jurists 63. He invented a story to explain the court’s decision: the young boy grew, did not protest, became an adult and reached his majority, performed acts of faith, and consequently one could argue that his baptism was valid. As the legal commonplace states, observed Parisius, many things seem objectionable that are valid when once are done 64. Most importantly, although Parisius presented the standard jurisprudence that baptisms bestowed with “vis praecisa” were not valid, he did not unequivocally conclude that the decision of the Neapolitan court was wrong. Pope Benedict XIV (Prospero Lorenzo Lambertini, 1740-1758) wrote a letter about Jewish baptisms in February 1747 that provides a window into the status of Jews in the papal states during the eighteenth 61 Ibid. fol. 6r: “vt magis servi principum dicantur, quam obedientes legibus Christianis, non autem quod vere et stricte sint servi. Ad quod etiam quoniam ipsi sunt capaces et participes iuris et legis civilis et constitutiones et statuta loci eos comprehendunt”. 62 Ibid. fol. 6r: “Ex quibus infertur quod illi Iudaei adulti per vim praecisam tempore regis Emanuelis bonae memoriae inviti et reclamantes baptizati per talem baptisum non fuerunt effecti Christiani”. 63 Ibid.fol. 6v: “Et quamvis alia opinio <against de Afflictis> magis auctoritatibus sit suffulta et dicatur communior, tamen quoniam dicti parvuli semel apparent baptizati et ad baptismum re ipsa et facto perventum fuit, et dicti parvuli ita baptizati effecti maiores et adulti, et postquam ad annos discretionis pervenerunt, per longum tempus tacuerunt nec contradixerunt et plures actus ad fidem pertinentes exercuerunt, approbantes tacite baptismum...”. 64 Ibid.: “Ad quod illud vulgatum ‘multa impediri fieri, quae iam facta tenent”. The earliest use of this principle that I know of is Vincent of Beauvais, Speculum doctrinale (4 vols. Venice 1591) fol. 152v, Book 9 cap. 78: “quia multa fieri prohibentur, quae si facta fuerint, obtinent firmitatem”. 40 THE LAW’S VIOLENCE AGAINST MEDIEVAL AND EARLY MODERN JEWS century 65. Benedict was the most learned pope of the early modern period with degrees in law and theology 66. His voluminous writings were reprinted again and again until the last century. The case he dealt with was presented to him by the titular archbishop of Tarsus, Ferdinando Maria de Rossi (1696-1775), who became a cardinal twelve years later. Rossi had come to see the pope as usual (de more) and told him about a case with which he had to deal. Antonio Vaviani had gone into the Jewish quarter and entered the house of Perla Mesani. In the home he found three daughters nine years old and under. A twelve-year-old son was also present. No explanation was given why Antonio entered a Jewish home. Antonio, perhaps, was a priest and baptized the three girls using the proper words. He ran out of <holy?> water and did not baptize the boy. Rossi told the pope what punishment he decreed for Antonio and what he intended to do about the girls. Benedict did not, however, give us any details about either the punishment or the fate of the girls. He did observe that similar events happened too often in Rome and outside of Rome. Opinions varied on how these cases were to be decided. Therefore he decided to write a treatise in the form of a letter 67. First he laid down the rule that minor children should never be baptized without the consent of their parents 68. Some theologians had come to embrace the idea of coerced infant baptism. Benedict quoted one of the most radical, Aurelio Piette († 1730), whose screed against Jews and the papacy was extraordinary for its rancor and vehemence. Piette argued unrelentingly 65 Pope Benedict XIV, Bullarium, Tomus Secundus, in quo continentur constitutiones, epistolae, aliaque edita ab anno MDCCXLVI usque ad totum annum MDCCXLVIII (Volume 5; Melchiniae 1826) 6-112. 66 Mario Rosa, ‘Benedetto XIV, papa’, Dizionario biografico degli Italiani 8 (1996) 393-408. Maria Antonietta De Angelis, Prospero Lambertini, Benedetto XIV: Un profilo attraverso le lettere (Collectanea Archivi Vaticani 66; Vatican City: 2008). Also Christian Zendri, Umanesimo giuridico ed ebraismo: La questione del battesimo ‘invitis parentibus’ nel pensiero di Ulrich Zasius con l’edizione e la tradizione delle ‘Questiones de parvulis iudeorum baptisandis’ (1508) (Dipartimento di Scienze Giuridiche Università di Trento 98; Milano 2011) 4-12. A muddled account of Benedict’s attitude toward coerced baptisms can be found in Marina Caffiero, Battesimi forzati: Storie di ebrei, cristiani e convertiti nella Roma dei papi (Rome 2004), translated by Lydia G. Cochrane, Forced Baptisms: Histories of Jews, Christians, and Converts in Papal Rome (BerkeleyLos Angeles-London: 2012) 49-56. 67 Bullarium 6: “Sed quoniam facta hujusmodi frequenter Romae, et alibi audiuntur, quotienscumque vero id accidit, multae hinc statim opiniones, maximeque diversae, perinde quasi tunc id primo evenerit, excitantur, Ideo operae pretium existimavimus epistolam hanc scribere, eamdemque typis impressam in lucem edere”. 68 Ibid. 9-26. 41 KENNETH PENNINGTON that Jewish children should be baptized, whether their parents wanted it or not 69: Why therefore does the Church of Rome not baptize the children of the Jews and take these baptized children from their parents lest in hatred of Christ they instill multiple impieties? Response. I ask again, why does the Vicar of Christ tolerate those most hostile enemies of Christ in his own city? Why does he not send them away? Benedict’s answer to this rant was simple: Jews lived in Rome and the papal states with the indulgence of the pope, and the pope may not demand from the Jews what rightly he should not. He should seek their conversion and baptism piously, faithfully, and moderately, without an coercion or injury 70. Benedict did have a short list of circumstances in which Jewish children could be baptized: if their parents were absent and their guardians consented; if the father commanded it, even if the mother were unwilling; if the mother converted, the children could be baptized even if the father were unwilling; if the grandfather converted and the child’s father died, the child could, “without a doubt,” be baptized against its mother’s wish; and in cases of necessity, e.g. when the child was gravely sick 71. One can imagine people like Aurelio Piette finding 69 Bullarium 22; Benedict quoted Aurelio Piette from an edition I have not seen; in the 1730 edition of Piette’s work the quotation is on p. 361 (Aurelio Piette, Elucidationis difficiliorum theologiae quaestionum Pars Quinta [Louvain 1730]: “Petes, cur ergo Romae Ecclesia filios Judaeorum non baptizat, baptizatosque a parentibus non avellit ne in odio Christi, multiplicique impietate enutriantur? Resp. et peto ego, cur insensissimos illos Christi hostes ipse Christi Vicarius Pontifex Romanus in sua civitate tolerat? Cur eos inde non amandat? Sicut ergo suas habet rationes gentem illam Deo abominabilem Christoque insensissimam tolerandi, ita et rationes habet quare infantes eorum ipsis invitis non baptizet, nec ab eis avellat. Ratio autem utriusque haec reddi solet primo quia expedit ut gens illa perseveret, convertenda, ut communis fert opinio, in fine mundi… Cur ipsosmet adultos haereticos ad veram fidem non compellunt? Si respondeant multa licere quae non expediunt”.). 70 Bullarium 24: “ac si Romae, aliisque in Pontificiis Urbibus commorantur <Iudaei>, id potissimum Summorum Pontificum indulgentiae acceptum referunt. Ex quo quidem colligere aperte licet, non id ab iis expetendum esse, quod iure non potest exigi, tum etiam eorum ad Christum conversionem atque infantium baptismum moderate, religiose, pie procurandum esse, sine ulla vi, aut iniuria”. 71 Bullarium 26-30. Necessity was a legal principle in the Ius commune that was very powerful. American and English common law never embraced the principle to the extent civil law systems did. See Franck Roumy, ‘L’origine et la diffusion de l’adage canonique “Necessitas non habet legem” (VIIIe-XIIIe s.)’, Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute 42 THE LAW’S VIOLENCE AGAINST MEDIEVAL AND EARLY MODERN JEWS loopholes in these exceptions, but Benedict lived in a world that was becoming increasing hostile to Jews. His analysis reflected that reality. Benedict’s invoking the principle of necessity was a loophole that led to one of the most infamous cases of Jewish baptism in modern times. In 1858 a Christian servant baptized a sick Jewish child named Edgardo Levi Mortara in Bologna, which was within the Papal States. When church officials learned of the baptism and decided it was valid on the grounds of necessity, Pope Pius IX removed the boy from his home and adopted him. It is reported that the pope played a role in his upbringing. Edgardo eventually became a priest who did missionary work among Jews in Europe and the United States. Although the Mortara family received international support in their quest to have their son returned to them, the pope remained adamant. In 1865 Pius was quoted as saying “I had the right and the duty to do what I did for this boy, and if I had to, I would do it again”. In spite of the pope’s certainty, one may wonder whether Pius had read Gratian and considered the admonition to observe the “integra forma iustitiae” that the 57th canon of the Fourth Council of Toledo demanded and the canonical tradition partially if not completely affirmed. Summary: Although there were numerous texts in pre-Gratian canonical collections that treated the status of Jews in Christian society, Gratian did not include any canons that established legal norms for Jews until the last recension of his Decretum. He placed three canons in Distinction 45, the most important being a canon from the Fourth Council of Toledo (a. 633) that discussed the coerced conversion of Jews to Christianity. This canon became the text on which jurists centered their discussions of the legality of Jewish conversions for centuries. After the thirteenth century, the jurists moved their discussion from Gratian’s Decretum and the decretal collections to consilia. From the fourteenth to the eighteenth century jurists continued to debate the validity of Jewish conversions in a society that became increasingly hostile to Jews. The brutal treatment of Portuguese Jews in the late fifteenth and early sixteenth centuries provided jurists with legal problems that forced them to apply the legal tradition to status of Jews on the Iberian peninsula. Sommario: Sebbene vi fossero numerosi testi nelle collezioni canoniche pregrazianee che trattavano dello status degli Ebrei nella società cristiana, Graziano non incluse alcun canone che disciplinava la condizione degli Ebrei fino all’ultima recensione del suo Decretum. Nella Distinctio 45 collocò tre canoni, il più importante dei quali, emanato nel Concilio di Toledo del 633, poneva il problema della conversione coatta degli Ebrei al Cristianesimo. Questo canone divenne il testo sul quale, per secoli, i giuristi centrarono le loro discussioni sulla legittimità della conversione degli Ebrei. Dopo il secolo XIII le discussioni dei giuristi si to Kenneth Pennington, edd. Wolfgang Peter Müller, and Mary E. Sommar (Washington, D.C., 2006) 301-319. 43 KENNETH PENNINGTON spostarono dai margini del Decretum e delle collezioni di decretali nella nuova sede dei consilia. Dal secolo XIV al XVIII i giuristi continuarono a dibattere sulla validità delle conversioni degli Ebrei in una società che diveniva sempre più ostile agli Ebrei. Il trattamento brutale degli Ebrei portoghesi fra il tardo secolo XV e gli inizi del secolo succesivo pose problemi giuridici che costrinsero i giuristi a fare ricorso alla tradizione medievale per discutere dello status degli Ebrei nella Penisola iberica. Key words: Jews, Coerced Conversions to Christianity, Gratian, Guido da Baysio, Consilia, King Manuel I of Portugal, Matthaeus de Afflictis, Paulus Petrus Parisius, Pope Benedict XIV, Pope Pius IX, Edgardo Levi Mortara. Parole chiave: Ebrei, conversioni coatte al Cristianesimo, Graziano, Guido da Baisio, consilia, Re Manuele I del Portogallo, Matteo d’Afflitto, Paolo Pietro Parisi, Papa Benedetto XIV, Papa Pio IX, Edgardo Levi Mortara. 44