The interaction of Secular and
Jewish Law in Medieval Germany
James B. Spamer
Jewish Law, Nov. 10, 1982
Professor Lee
CG161
The Interaction of Secular and
Jewish Law in Medieval Germany
1.
Introduction
For roughly a two-centurv period preceding the.First
Crusade, the Jews resident in those territories which now
make up modern Germany enjoyed perhaps unprecedented
freedom,
prosperity, and peace.*
It is not strictly accurate to say
, did not V.<x.y>ethat the German Jews of this time^anv of the tribulations
attributable to their minority status, and there v/ere sporadic
2
outbreaks of anti-Semitism and violence.
At the same time,
medieval Germany was not a unified country} it was divided up
into a multitude of semi-independent states, such as Saxony,
Bavaria, and Prussia. '
V/hile these states we re loosely con-
federated into the Holy Roman Smpire, their legal systems varied
considerably in detail.
The scope of this paper does not permit
an exhaustive study of all the variations and exceptions to
the statements which follow.
Nonetheless, with this qualification
it is still generally true that the German Jews of the tenth
and eleventh centuries v/ere treated in an exceptionally
4
tolerant manner, unique in the PJurope of that age.
From the viewpoint of the second half of the twentieth
century, we tend to think of the middle ages as one long era
of
unrelieved repression and superstition, including anti-
Semitism.
We also tend to think that, if ever a country
v/as anti-Semitic, that country is Germany.
To understand
why it v/as that medieval Germany should have developed such
-1-
00162
_?9-
an enlightened tolerance of the Jews, we must examine the
historical
2.
context.
Historical
Backqround
The conversion of Ireland to Christianity had already
begun during Horn an times.''
When the pagan Anglo-Saxon
invaders arrived in southern Britain, the Irish Church found
g
itself cut off from the mainstream Soman Church.
As a result,
the Irish Church developed its own traditions, its own
practices, and its own saints.
At a time when the
pope was
7
effectively little more than the bishop of Rome,
distinguished Irish clerics began styling
(papas).^
the more
themselves "popes"
At the same time, the Roman Church took its own
course of development.
In general, the Roman Church was
more radical in modifying the customs of the
early Church,
9
and the Irish Church was more conservative.
When England
became Christian, it was converted by missionaries sent from
Rome, and its brand of Christianity therefore conformed
to
Roman doctrine.
One of the differences between the practices of the
Roman and the Irish Churches was the celebration of Easter.
The Irish Church continued, as the early Church had done,'1"*
to celebrate Easter on the second night of 12
Passover,
less of what day of the week it should be.
the Roman Church modified
regard-
In contrast,
the ecclesiastical calendar so
that Easter always fell upon a Sunday.
In the event that
the night of the Passover feast fell upon a Sunday in any
00163
given year, the celebration of Easter was to be pushed back
a week, solely "to avoid having the Christian Easter celebrated on the same day as the Jewish Passover." '
The question of how to calculate the date of Easter was
really trivial in i t s e l f . ^
larger controversy.
At stake was nothing less than the unity
of the Western Church."-'
papacy:
It was symbolic, however, of a
At stake also was the power of the
was the pope the pre-eminent leader of the church,
i^
or was he merely one equal among many?
As the Roman Church spread to the north of England, the
crisis came to a head.
In Morthumbria, the portion of England
which bordered on Ireland at that tine, the king, Oswiu,
adhered to the Irish Church.
Easter feast for his court.
In 56? C.E., Oswiu held an
His queen, however, could not
attend, since she was fasting
for Lent:
17
revised Roman calendar.
she followed the
As a result, the Synod of Whitby
convened
in
664, with churchmen
representing both
the English
Q
.
. and
. Irish
(Roman)
views. 13 Oswiu was arbiter. 1
20
Bede gives the fullest account of the debate,
albeit
pi
with an evident bias toward the English side. ~"L The Irish
spokesmen argued that John-—who, they pointed out, was the
20
o-z
"Beloved Disciple" — c e l e b r a t e d Easter as did they, "
Then
they played their trump card:
Paul, the "Apostle to the Gen-
2&
tiles,"'"" was himself a strict observer of Jewish law, despite
2Chis ideological position. " Paul cut his hair in accordance
Of,
27
with Jewish law; - " he made burnt offerings in the T e m p l e ; -
CG00164
he himself circumcised Timothy, his foster son, to whom he
wrote two epistles.'"
Wilfrid, spokesman for the English side, remained
vinced.
uncon-
He conceded that the early Christians observed Jewish
law, but countered that that was only so that they would not
give offense to potential Jewish converts. 4 "
While Paul might
have followed Jewish lav; scrupulously, Peter, the "Apostle to
pq
the Hebrews,1'*"
himself celebrated Saster in the fashion of.
7,0
the Roman Church.
In any case, the situation of the Church
in modern times (that is, the seventh century) v/as quite different
from what it was in the first century.
The early Christians
had to make the practices of the Church appealing to their
unenlightened neighbors; now, however, the entire world had the
full benefit
of the Gospel,
for the Church
co adhere to all the dictates of the Jewish law.
Finally, Wilfrid
serious charge:
and there was no longer any need
leveled -what he evidently took to be his most
if the Irish Church persisted in its practices,
then it v/as merely Judaicizincj (ludaisante) '
Christianity.
Ultimately, Oswiu declared that the English spokesmen had
7 A" The Irish clerics, however, v/ere not about
won
the debate.
to accept
the verdict
of a Northumbrian king, and they resisted
xc
the influence of the koman Church for a long time to come. Meanwhile, the English clerics started to devote their attention to missionary efforts among the continental Germanic
tribes, especially the Saxons. '
The English, that is, the
Anglo-Saxons, felt a special affinity for the continental
Saxons,
since they recognized the close blood relationship which they
7.
7
had with those who shared their own ethnic origins.
Further-
more, the dialects spoken by the English and the continental
Saxons were still largely mutually intelligible.
s
The
English,
7,9
therefore, sent out waves of missionaries to Germany.•
Mean-
while, the Irish Church, not to be outdone, sent out its own
numbers of missionaries, again to Germany. 4 ®
The race v/as on.
The same conflict which had occurred at 'Whitby v/as repeated
throughout G e r m a n y , 4 1 but, in the end, Christianity as it became
established
in the Rhinsland,
from the very beginning, was a
a?
"certain amalgamation" "" of the Hornan and "Judaicizing" Irish
Churches.
Consequently, it can be hypothesized that German clerics
were- always more sympathetic to Judaism than were the clerics
of the Roman Church (which by this time included Italy, France,
and England
).
Certainly there were a number of eminent
Gorman churchmen who converted entirely to J u d a i s m , 4 4 but there
is no corresponding record of conversions to Judaism in other
countries.
Indeed, at least one Holy Roman Emperor, Frederick II,
grandson of Barbarossa, claimed to be well-versed "in the
biblical book which is called in Hebrew,
'Bereshit,•
[Genesis
is meant], in the laws given by Moses, 4 and
in the Jewish decrees
r
which are called in Hebrew,
'Talmud.'" •
in short, the likeli-
hood is very great that German clerics v/ere far more familiar,
first-hand, with Jewish texts than v/ere the clerics of other
countries.
At the same time, the papacy was attempting to consolidate
its control over the Western Church. 4 ^
CG00166
We can safely hypothesize.
_?9-
I think, that the papacy, concerned about the emergence of
a rival Irish Church, started to attack the Jev/s as an indirect
way of attacking the "Judaicizing" Irish Church.
In any case,
the first attacks against the Jev/s v/ere promulgated by church,
A7
and not by secular, authors,"
and by authors who were neither
48
Irish nor German.
One of the oddest attacks upon Jews came from Pope Gregory I,
the Great ( C 9 0 - S 0 4 C.E.).
Comparatively speaking, Gregory
v/as not an anti-Semite; in fact, he forbade the forced
AS)
of Jews."
conversion
Nonetheless, Gregory proclaimed that no Jew could
•-0
own a Christian slave.
nally pagan,
If a Jew owned a slave who was origi-
but who later converted, then the Jew still had
to let the slave free.
"
Gregory's decree cannot have been
anything more than propaganda, and it is unlikely that it
resulted in the emancipation of a single slave.
To see why,
we must- examine Gregory's decree more closely.
First, Gregory, and subsequent Church law, allowed Jev/s
to control serfs.
The distinction between slaves and serfs
v/as a fine one; in point of fact, medieval Latin made no distinction between the twor A semantically, and used the same word,
seirvus, to denote both.
conceptual one:
'
The distinction v/as at best a
slaves v/ere personally owned, while serfs
were owned by the l a n d — i n modern, terms, the ownership of serfs
v/as a covenant which ran with the land.-
In effect, Gregory
seems to be saying that, on the one hand, if a Jew owned a
Christian slave, that was prohibited, but, on the other hand,
if the Jew owned a parcel of land which in turn owned a Christian
00167
_?9-
slave, that was acceptable, since, in the latter case, the Jew
did not "own" the Christian slave at all.
ever, seems very
This rationale,• how-
tenuous.
Conversely, Gregory might have been basing his rationale
on the dichotomy between "field hands" and "household
hands."
Since serfs were less closely associated with their overlords
than were immediate domestic help, there would have been less
danger that a Jewish overlord could convert a serf than he could
c6
convert a "slave."'
Therefore, if Gregory's main concern was
over the proselytizing of Christians into the Jev/ish faith,
his concern and his distinction between serfs and slaves might
appear rational.
However, that distinction merely leads us into the second
quandary concerning Gregory's decree.
Jewish law itself
any Jew from owning a domestic Gentile slave:
prohibite*
the theory was
that a Jew could not eat or touch anything that had been handled
by a Gentile, and that therefore any domestic slave preparing
anything for a Jev/ish household had necessarily to be a Jew as
well.
As a result, if Gregory intended to bar merely domestic
slaves to Jews, then Gregory was only banning what Jewish law
had already banned to the Jews in the first place.
Par from
depriving the Jews of any of their secular rights, Gregory's
edict would simply have been the secular confirmation of what
Jewish law had already dictated.
But the third objection to Gregory's decree is the most
puzzling.
In an affirmation of tolerance, Gregory proclaimed
that he did not wish his decree to cause any economic
00168
hardship
_?9-
e;a
to a Jew.
Therefore, if a Jew owned a pagan slave, and that
slave converted to Christianity, the slave was not to be freed
immediately upon his conversion: instead, the slave had to wait
cq
for thirty days after his conversion, in order to be freed.*
If, during the thirty-day interim period, the Jew sold the newly
converted slave to a Christian master, then a Christian would
own the newly converted Christian slave, and that state of affairs
was entirely acceptable to the Church.
Mow, we have seen that Gregory's decree did not affect the
ownership of serfs at a l l — t h a t is, rural Jews who owned large
estates in land could comfortably keep their Christian serfs at
work.
The only possible applicability of Gregory's decree,
fore, fell on the urbanized Jews who did not own land.
there-
But
these Jev/s were precisely the ones who did not own household
slaves, at least Gentile slaves; these were the Jev/s who made
their living by trading, including trading in slaves. 6 1
these Jev/s were slave-traders, and not slave-holders;
But
they
purchased slaves outside Christian territory merely to sell
them again, to Christian masters, within Christian
territory.
By allowing Jewish masters to keep Christianised
slaves for
thirty days, Gregory v/as, in effect, allowing the Jewish
traders to go about their trade unmolested.
slave-
In fact, one modern,
and perhaps cynical, commentator has made the remark that Gregory
had no intention of stopping the slave-trade in Italy, since
it proved so prosperous to Italy and provided real economic
benefit.52
As a result, probably the only Jew who suffered any
real economic loss from Gregory's decree would have been a
slave-trader who did not have a sufficiently high enough rate
00169
of inventory
turn-over.
We have seen, therefore, that Gregory's ban against Jev/ish
masters owning Christianized
slaves did not affect Jev/ish owners
of rural estates (\\'hose Christian workers were "serfs" and not
"slaves"), or Jews who ov/ned domestic Gentile slaves
(since
Jewish lav/ prohibited that), or Jewish slave-traders (who could
have been expected, in any case, to sell their slaves within the
thirty-day limit required by the decree).
decree affect?
Who, then, did Gregory'
The answer is that it probably affected no one
at all; in any case, it is doubtful that more than a handful
6*
of slaves were able to assert their freedom under the decree. •'
Gregory must have knov/n that his decree would have had no
immediate, effect.
Indeed, Gregory's main concern appears to
have been to establish the papacy as the pre-eminent
leader of
the Western Church. 0
the
It v/as he who first attempted
C
Christianisation 6of
England, in order to expand his own control
over the Church.
As a result, we are probably safe in con-
cluding that Gregory's decree was nothing more than propaganda,
directed in the first instance against the Jews, and, in the
second instance, against the Irish Church, which the papacy
in Gregory's day still wished to eliminate as a potential
rival.
Meanwhile, the papacy had other problems to contend with,
aside from the Irish Church.
Possibly most important v/as
that the popes remained bishops of a metropolis which no
longer retained any temporal power.
Constantine had split the
Roman Empire into two halves, eastern and western.
The eastern
_?9-
half remained intact, vntil its fall to the Turks in 14c:z C.E.
The temporal power of the western half, however, had been
destroyed by the Germanic invasions.
zantium claimed
The patriarchs of By-
to be the spiritual leaders of the Church, and
gg
they were backed by the secular leaders of Byzantium.
In
contrast, the popes could only claim to be the spiritual heads
of the Church, without
any temporal power to lend support to
^ rj
their claims at all. *
In addition, rival factions of Roman
society would set up their own popes, as a result, there were
often two or more popes reigning simultaneously,
each claiming
to be the sole authority of the Church. g1o In addition, the
Germanic, tribe of the Lombards, which had settled in northern
go
Italy, was increasingly encroaching upon papal lands.
Pope Leo III ascended the papal throne in 79 * C.E.,
When
therefore,
70
he found himself surrounded by enemies.
Byzantium was not
about to lend its temporal aid to the pope, the Lombards -were
pressing against the Papal States generally, and rival Roman 71
factions were claiming that Leo was not the legitimate pope.
Pressed on all sides, Leo resorted to a bold stroke.
To
the north of Italy, the Germanic tribe of the Franks had clearly
established
itself as the main power in western Europe.
The
Franks were traditional enemies of the Lombards, and had assisted
7 •>
earlier popes in resisting the Lombards' advance into Italy.
On Christmas Say, £00 C.S., therefore, Leo crowned the king of
the Franks, Charlemagne, as Augustus, and re-established
Roman Empire of the West.
the
Charlemagne himself appears to have
been caught completely off-guard; he is said to have remarked
publicly,
that, had he known what Leo intended, he never would
00171
have entered St. Peter's Basilica.
succeeded in his goal:
_?9-
Be that as it may, Leo
he re-established the Roman Empire in
the West, to balance the Eastern Roman Empire located in Byzantium
he secured the aid of a monarch who could be relied upon to halt
the advancing Lombards; and he allied himself with a man of
sufficient power to stem the attacks against him of the faction
of rival Romans who sought the papacy.^ 4
Charlemagne's empire embraced most of what is today France
an:! German v.
Because of the idiosyncratic problems with
his dynasty's succession, however, the heirs of the imperial
power of the Holy Roman Empire came to rule only over what is
•75
now Germany.
heanwhile, the Holy Roman emperors came into
77
direct conflict with the popes;
while the popes had
that the Carolingian dynasty should be the Holy Roman
intended
Emperors,
the popes never intended that the Holy Roman Emperors should
ever exercize temporal authority over the territory of Rome
itself.
4
The struggle between the popes and the Holy Roman emperors
became the main story of the middle ages, as far as both Italy
79
and Germany were concerned.
In 1045 C.E., the Holy Roman
Emperor Henry III deposed
the three Italian popes who were then
reigning simultaneously, and set up his own candidate as a fourth
no
pope.~
In the second half of the twelfth century, the crisis
between papacy and empire came to a head.
Pope Gregory VII
excommunicated the emperor Henry IV twice, in 1077 arid in 1080.
3X
c
Excommunication v/as a serious matter for the Holy Roman Emperor,
whoso main authority to rule came from the fact thab he had been
00172
appointed by God.
V/hen Henry IV was excommunicated,
therefore,
his n o b l e s — t h e petty chiefs who ruled over the semi-autonomous
German states—asserted
him.® 2
their independence by rebelling
against
In turn, Henry IV managed to retain control of his
kingdom, and, in 1034, marched across the Alps and deposed
Gregory VII as pope.
It is not my purpose in the present study to detail the
struggles between the Holy Roman Emperor and the papacy; it
suffices merely to say that, throughout the middle ages, emperor
and pope struggled for temporal power.
The climax of that struggle
occurred when Henry IV v/as the Holy Roman Emperor.
The reader
will recall, that the papacy, in the effort to assert its control
over the Irish Church, developed a somewhat anti-Semitic
of propaganda. 0 *
line
In contrast, the German brand of Christianity
represented a blend between Roman Christianity and the Judaic
8C
Irish elements. ••
It should be no surprise, therefore, that
8S
Henry IV was the great emancipator of the Jews in Germany.
Henry and the Jews were natural allies; they both contested
the supremacy of the papacy.
Vie have already seen that Pope Gregory I had proclaimed
that no Jew could own a converted Christian slave, and that
his proclamation appears to have been largely a p r o p a g a n d i s t s
move."
In 1090 C.E., in a counter-attack, Henry IV proclaimed
that anyone responsible for converting a pagan, Jewish-owned
slave to Christianity would be compelled to return the slave
to his Jewish master, and, in addition, would be compelled <
to
» rv
pay a fine of three pounds of silver to the secular courts.' 0
CG00173
Indeed, the Margrave Gunzelin of Meissen, in Saxony,
personally
89
even sold some of his slaves to Jewish land-owners.
Gregory's
prohibition against the Jewish ownership of Christian
appears to have gone entirely unheeded
slaves
in Germany.
Even the German clerics largely disregarded the pope.
Thus,
Ruediger, op Bishop of Speyer, afforded special protection to
91
the Jews. " He explicitly afforded Jews within his jurisdiction
the right to adjudicate their own affairs:
Just as the mayor of the city serves among the
burghers, so too shall the Jewish leader adjudicate
any guarrel which might arise among them or against them.
If he be unable to determine the issue, then the case
shall qorne before the bishop of the city or his chamberlain. Furthermore, Ruediger gave or sold (the record does not make
clear which) land upon which the Jews could build
97
their
residences.
Of particular interest, however, are two of Ruediger's
actions which necessarily must have annoyed the papacy very
much, and, furthermore, Ruediger cannot have been unaware of
the ecclesiastical-political
implications of his actions.
First, Ruediger explicitly allowed the Jews to have both
94
Christian nurses and Christian servants, " a practice long
9C
condemned by church law.'-'
/
(Once again, it is not clear
whether Ruediger's tolerance in this regard had any effective
result, or whether it was merely propagandistic.
Since
96 Jev/ish
law itself prohibited maintaining non-Jewish servants,
it
can be plausibly argued that Ruediger, by his decree, did not
really intend for Jewish masters to have Christian
CG00174
domestic
_?9-
servants, but was merely taking an ideological stand.)
Second—
and this action must really have annoyed the p a p a c y — R u e d i g e r
explicitly donated
(and the record is very clear that he
donated, rather than sold, the land involved) land for the
97
Jev/s to use as a cemetery.
Furthermore, the land which
Ruediger gave them for that purpose came out of a portion of
the land which Ruediger
98 did not personally own, but which was
owned by the church.
It is indeed difficult to conceive
what more a German ecclesiastical authority could have done
to evidence his concern for the toleration of the Jews.
Thus, in the tenth century, Germany was especially
pared to be tolerant toward the Jews.
pre-
We have seen that, in
an effort to assert their hegemony over the Irish Church, the
popes sought to suppress that Church by asserting that it v/as
too "judaicising"; accordingly, the popes developed
something
of a propaganda campaign against those who felt sympathy
for
QQ
the Jewish lav/ (including, necessarily, the Jews)."'
At the
same time, however, the brand of Christianity which v/as first
established
in Germany v/as an "amalgamation" of both the Roman
and Irish Churches, and it follows that the German Christian
clerics v/ere not as radically pre-disposed to anti-Semitic
attacks as v/ere their Italian c o l l e a g u e s . F i n a l l y ,
the
Holy Roman Smpsror, the nominal leader of Germany throughout
this period of time, v/as in a constant struggle for temporal
power against the papacy; 1 ® 1
to the extent that the popes
asserted their arguments against the Jev/s, therefore, the
00175
Holy Roman Emperors found that the Jews were a common ally
against a common enemy.
10°
"
Whatever propaganda a pope would
direct against the Jews, a Holy Ionian Emperor or a German cleric
10*
would counter with propaganda of his own.
To this extent,
the split between the Western Church, evidenced by the Synod
of Whitby, at which the Roman-English Church asserted
its
hegemony but at which the Irish Church equally asserted
its
right to adhere to some of the dictates of Jev/ish law, bore
fruit in Germany, with the consequent result that medieval
Germany v/as far more prepared, for a variety of reasons, than
its continental neighbors, to give a unique status to the J e w s . 1 ® 4
*•
Subsequent Developmen fc
It should by now be realized that it v/as no coincidence
that those Holy Roman Emperors who v/ere most opposed to the
papacy v/ere also those who most protected the Jews.
Thus,
in 1090, Henry IV ratified Bishop Ruediger*s decree throughout the empire, "Ci]n the name of the holy and undivided
Trinity."
twist.
10^
In his own proclamation, Henry IV added
It will be recalled
another
that Pope Gregory the Great had
ruled that any Christian slave belonging to a Jew must be
t nc
emancipated.
°
Henry, meanwhile, proclaimed that anyone
nuiltv of "divert[inn]" non-Christian slaves from the service
<•>" their Jev/ish masters,
by "baptising them under the pretext
10"7
of Christian faith,"
' should be held responsible, not only
for the conversion of the slave, but for the conversion of
the Jew's property as well.
The proselytiser had to return
the slave to his Jev/ish master, and, in addition, had to pay
G0176
_?9-
1 08
a fine of three pounds of silver as well."
In the meantime, however, Henry IV was having other
problems in the control of the empire.
His father, Henry III,
in a state of complete exasperation, had forcibly deposed all
three of the popes reigning in his day, and had placed a fourth
109
candidate, of his own choice, upon the throne of St. Peter.
The ultimate result v/as that the next pope, Nicholas II, declared
that, henceforth, no secular ruler or rival political
faction
was to have any say in the election of the pope; instead, from
1059 on, the pope was to be elected solely by the cardinals of
the Roman Church. 1 "®
As a result of this reform, the popes
managed to consolidate their power, independently of the wishes
of the Holy Roman Emperor.
The struggle led to a climax,
finally, in 1077, when Pope Gregory VII formally excommunicated
Henry
IV.111
Henry repented, recanted
his repentance, and was excommuni11 ^
cated again, in 1080.
"
The second time, however, Gregory VII
made the import 01" his second excommunication clear.
All along,
the papacy had depended upon the secular and military strength
of the Holy Roman Empire to support its position in Italy, but,
in return, the Holy Roman Emperor had ruled only "by the grace
of God," and the contemporary
pope v/as the one v/ho declared
tit;
v/hat God's grace v/as.
In 1080, therefore, Gregory VII not
only excommunicated Henry, but also deposed him and declared
his reign null and void.
The deposition was the signal which
Henry's sub-nobles v/ere waiting for:
the independent
states
under the Holy Roman Emperor had always striven for their com-
00177
_?9-
plete autonomy, and, when the pope had given them his sanction,
they promptly rebelled.
From 1077 on, therefore, Henry faced
a number of rebels, as well as a number of pretenders to the
Holy Roman Smpire:
of F r a n c o n i a , a n d
Rudolf of Swabia, Herman of Salm, Conrad
ultimately, even his own s o n — t h e
future
c
ll Honry V.
Nonetheless, in his own lifetime, Henry IV prevailed
all his rivals.
over
In an effort to consolidate his hold over
the empire, in 110* Henry IV required his recalcitrant
to sv/ear to the Land-peace of Mains."
nobles
Among other things (and
of chief interest here),
117 Henry required his nobles to swear
to protect the Jev/s.
'
The Land-peace may or may not have been
terribly effective, 1 1 ^ but it accomplished one important
result.
Previously, the Jews in Germany i\rere tolerated at the whim of
major secular rulers, either potentates, bishops, or the Holy
Roman Smperor himself.
In any case, their legal status was
dependent upon the whims of the ruler affording them 1
protection:
]9
they v/ere given privileges and charters, but no more.
"
In
modern terms, the Jews, no matter how favorable their circumstances might have been, v/ere always subject to a rule of men,
rather than to a rule of lav/.
all this:
The Land-peace of Mains changed
by incorporating the protection of the Jews into
his general groundwork plan for the consolidation of the empire,
Henry effectively made the protection of the Jev/s part of the
constitution of the empire:
now a matter of law. "
in short, their protection v/as
The status of the Jev/s v/as no longer
subiect to the whims of individual potenates; at this point,
00178
the Jews of medieval Germany reached their zenith.
Nonetheless, this favorable status was not to last long.
To the extent that the status of the Jews depended upon the
constitution, so to speak, of the Holy Roman Empire, their status
depended upon the strength of the Holy Roman Emperor, and not
121
all subsequent emperors v/ere as strong as Henry IV.
In
addition, the popes were ever vigilant to strengthen their ov/n
position, and, when the Saracens overcame the Holy Land, the
popes v/ere quick to mobilize the Western Church, the popes
quickly rallied all of Western Christendom under one banner.
In 1095, while Henry IV was still trying desperately to consolidate his empire, Pope Urban II, a successor to Gregory VII,
convened the Council of Clermont, at which he launched
the
First Crusade. 122
By this time, the last remnants of the church
1
in Celtic Britain had given up any claim against the papacy,
and Urban 1 s effort, therefore, resulted in a general unity of
Western Christendom.
1
Nonetheless, the Holy Roman Emperors staunchly defended
the
12,:
Jews under their protection.
In addition to everything else,
the Jews v/ere instrumental to the empire's expansion toward
the
east, an .imperialistic desire which the empire maintained from
Charlemagne to Hitler.
For all sorts of reasons, Jews were
the traders between the Holy Roman Empire and Moslem-controlled
Spain, across the Pyrhenees; between the empire and Venice,
across the Alps; between the empire and the still pagan Germanic
tribes in modern-day Scandinavia; between the empire and the
Byzantine Empire to the east, which consistently asserted
127 its
claim as the only legitimate heir to the Roman Empire;
between
_?9-
the empire and the Moslem kingdoms gradually encroaching upon
it; and, finally, between the empire and the Moslem kingdoms of
the eastern Mediterranean—between
the empire and the rulers of
1
the original homeland of the Jews, Israel.
The Holy Roman
Emperors, from Charlemagne on, appear to have been well
aware
that their hold upon the empire depended in large measure upon
their ability
\p 9 to give economic prosperity to the inhabitants of
the empire " — e v e r y bit as much as modern American Presidents
seem to realise, however vaguely, that their tenure in office
depends critically upon their ability to deliver economic wellbeing to the public.
That Jews were eager traders along the
eastern frontiers of the empire, and that the emperors were
continually seeking to expand eastwards, gives only even more
reason for the emperors to have protected their Jewish
subjects.
The most striking example of trading between a Holy Roman
Emperor and the Moslem East probably comes v/ithin the reign of
Charlemagne himself, the first
1*1 Holy Roman Emperor.
antipathy for the Saracens,
Despite his
Charlemagne appears to have
realised that he had to accommodate them.
Accordingly,
he
entered into negotiations with Harun al-Rashid, the contemporary
ruler of southern Libya (a ruler so popular that he himself became identified with a Moslem "Golden Age," so much so that his
caliphate is the setting of many of the tales of The Arabian
Mights).
Harun al-Rashid made a gift
17P to Charlemagne, an
elephant, by the name of Abul Abas.
"
What is important to
our purposes here is that the only successful
intermediary
between Charlemagne and Harun al-Rashid was a Jew, by the name
00180
17
_?9-
17,7
of "Isaac the Jew."
Nonetheless, with the fury of the Crusades, and later the
Black Death, sweeping Europe, an increasingly
irrational
population became increasingly anti-Semitic.
' In the
I "JSC
13*0s, for the first tine in Germany,
the "blood accusation"
a r o s e — t h e charge that Jews ritualistically slaughtered
young
1*6
Christian boys.
Much to his credit, the then Holy Roman
Emperor, Frederick II, refused to believe the charge, and
issued a proclamation to the general public that no one else
should give it credence. 117 To insure the protection of the
1 7P
Jews, Frederick
?.lso made them his own personal serfs." "
While
this move might have been necessary at the time, it also resulted in the J'.u-/sf subjection, once again, to a rule of a
man, rather than to a rule of law.
'
Henceforth, Jewish statvs
was dependent upon the personal strength and ability of whatever emperor happened to be reigning.
the requisite strength of character:
Frederick himself had
attacked by a now unified
Roman Church, he v/rote a letter to Pope Gregory IX, in which
he asserted that he, and he alone, had jurisdiction over the
X AO
Jews.
"
He further denied that the Church had ever had any
jurisdiction over them.
Yet the damage was done.
ties persisted
^
While some German Jewish communi-
many were destroyed by the local
populations,
and many more, appalled
at the increasingly hostile environment,
141
moved eastward.
Even so, during the relatively golden age
in Germany, the Jews had built up a considerable
culture.1^4
That, they took with them, along \*ith the Torah, the Talmud,
00181
_?9-
the jurisprudence that they had developed in Germany, and
even the German dialect that they had acquired in G e r m a n y —
1
the dialect that was to become Yiddish. •
4.
Examples of the Interaction of German and Jewish Lav;
It now remains to examine just how vital Jewish law was
for the German Jewish communities.
The greatest medieval
German Talmudic scholar, Habbenu ["Our teacher 11 ] Gershom
ben Judah, the "Light of the E x i l e , " 1 4 5 stipulated
that
147
the decrees of Jewish courts v/ere binding upon all Jews,
an<}, at his urging, the heads of all the Jewish communities
in both France and Germany unanimously
149 agreed that all Jev/s
v/ere subject to the Jewish courts.
About a century and
a half later, circa ll r O, Rabbi Jacob ben i'-'eir Tam decreed,
at the Synod of Troves, that any Jew who sued another Jew in
a secular court would be excommunicated, unless both parties
1 AQ
had previously consented to be bound by the secular court." "
The secular authorities generally respected the autonomy
of the Jewish courts. -
We have already seen that Ruediger,
Bishop of Speyer, gave the Jews the right to adjudicate among
themselves, with the secular and canonical courts reserving
1 CI
merely the right, as it were, of appellate
jurisdiction..
In 1090, Henry IV ratified what Ruediger had done, and decreed
that Jev/s should be fudged bv other Jews, "and by none other,"
subject to review by the secular or ecclesiastical
in the event that a party wished to appeal.^ 7 '
00182
authority
These statements are subject to one important qualification:
a Jew accused of violating the criminal law was subject to the
ISA
jurisdiction of the secular courts. •
The theoretical
rationale
was that, since German law originally accommodated Jev/ish law
by means of the privileges and personal charters, -- and since
a Jew who violated the criminal law thereby violated the "king's
(or emperor's) peace," the Jew who allegedly violated the criminal
law could no longer claim the benefit of the special protection
of the personal privilege afforded him by the king or emperor. More pragmatically, it might well be speculated that no government can afford to have two systems of criminal justice:
civil
lav/ is essentially private lav/, but criminal lav/ involves crimes
against the state.
Each criminal defendant must have the assurance
that he will be treated equally with every other criminal defendant, if the criminal lav/ is to carry the full weight of
moral force in the minds of those subject to it.
civil law, the Jewish courts v/ere completely
However, in
autonomous.
Even in a criminal case, however, the Jew could appeal to
a different procedure.
Christian Germans were subject to all
kinds of barbaric ordeals and torture, in an effort to extract
the truth from them. ^
The Jewish
l c 8 defendant, however, could
not be subjected to such ordeals: -
nor could he be persuaded
to talk by
means of hot irons, boiling water, ice v/ater, or
1 CO
lashings. - '
The one ordeal to which the Jew v/as subject v/as
the oath of compurgation, 1 ^® a reasonable enough exception,
161
since Jev/ish law itself allowed the oath as a procedure.
(To interject a personal note:
for my part, if I had been a
CG00183
medieval Christian German, accused of a crime, and, if I were
told that the truth would come out by my holding hot irons, to
16?
see how the blisters broke out several days later,
I would
have considered such a procedure a very strong incentive to convert to Judaism immediately.
' )
Furthermore, the oath that a Jew was required to swear in
a secular court was especially written for Jews:
while the Jew
v/as required to swear by God and the patriarchs, he 164
was not
required to swear by the Trinity or in Jesus' name.
There
are indications that local secular authorities, perhaps
irked
by what they perceived as favoritism to the Jews, required
attendant procedures which they knew would be distasteful to
a Jew:
thus, in many places, the Jew was required to make his
oath v/hile standing upon the teats of a recently
slaughtered,
16c
nursing sow.'
even so, it cannot be denied that medieval
German criminal courts v/ere somewhat solicitous of Jewish law,
and that, while a Jew taking an oath before a criminal court
might have bee-? subjected to prc.edures designed to humiliate
and degrade him, the general rule was that no procedure without
an analogue in Jewish lav/ could be applied against a Jew.
Even more striking, however, is that the secular authorities
sometimes extended the jurisdiction of the Jewish courts to
Christian litigants.
The general rule appears to have been
the same as modern rules for determining
jurisdiction:
the
plaintiff had to pursue the defendant, and the appropriate
court was determined by the defendant's religion.
Thus, a
Jev/ish plaintiff had to sue a Christian plaintiff in a secular
CG00184
-.74-
court, according to secular lav;, but a Christian plaintiff had
to sue a Jewish plaintiff in a Jewish court, according to Jev/ish
lav/.
166
Even relatively late, this feature of secular lav/ is
still maintained
in the Charter for the Jews in Basel
(1*36):
Were ouch, dass jemande der obgenannten juden deheinem
jsmer utschit ansusprechende hette, der sol das recht von
inen nemen, in ir judenschul, als es von alter harkomen ist.
[If it should also be, that anyone making a charge
should have proceeded against anyone of the aforementioned
Jews, he shall take the lav/ from them, in their court (lit.
"Jewish-School"), as it has been handed down from olden
days, j-'-67
From the reference to received tradition ("als es von alter
harkomen ist"), we may safely assume that the requirement
that
a Christian plaintiff sue a Jev/ish defendant in a Jev/ish court
and according to Jev/ish lav/ v/as so v/idespread in medieval Germany
as to become accepted without question.
Naturally, German secular law developed certain
regulations
concerning Jev/ish lav/, in an effort to avoid the unpredictabilit;
which would result from too many German plaintiffs suing in
Jewish courts.
This body of lav/, the so-called Jud en recht,
v/as never codified, but appears scattered throughout
163
1
various
3 69
medieval legal treatises."
The Jev/s in medieval Germany v/ere
traders per excellence, and perhaps the most striking example
of how the Judenrecht operated can be seen from an example of
the nediov-1 law merchant.
Consider the hypothetical in which 3, a thief, steals goods
from A, the victim.
B then turns around and sells the goods
to C, v/ho is a bona fide purchaser, who gives fair value for
the goods, and who does not suspect that he is actually buying
stolen goods.
It is a principle v/ell established
eois5
in modern
American lav/ that A, the original victim, cannot recover from
C, the bona fide purchaser for value; instead, A's only recourse
170
is against B (if A can find him).
The policy reasons for
the American protection of the bona fide purchaser are quite
clear:
if any purchaser of any goods had to concern himself
with whether the goods v/ere stolen and whether he might
therefore
ultimately be compelled to return the goods, purchasers in
geheral would be greatly inhibited from buying any goods, and
general commerce would be greatly chilled.
This chilling
effect,
171
in turn, would greatly retard the economy in general.
Therefore, the interests of a bona fide purchaser, taking for
value, are to be protected at all costs:
to the extent that A,
the injured party, had suffered loss, he had suffered it because
of the actions of B, and not because of the actions of C.
fore, A's recourse is solely against 3.
There-
C, as a bona fide
purchaser for value, is entitled to keep the goods, v/ithoUt any
liability to A.
Mow, the- Jewish lav/ merchant was already highly
sophisticated
in the middle ages: this sophistication] 7"v/as only to be expected,
since the Jev/s v/ere primarily traders. ' "
Therefore, Jewish
lew held, just like modern American lav/, that the victim of a
theft could have no recourse against the present possessor of
the stolen goods, provided
that the present possessor had
acquired the goods in all good faith, and had paid full value
for them."i 77, German secular law, however, v/as quite different:
according to it, the victim of a theft could re-acquire his
stolen goods, no matter what.
CG00186
17A
"
In short, Jewish law allowed
ti-
the victim of a theft to recover only against the thief himself,
while German secular law allowed the theft victim to recover
against anyone, no matter how innocent, v/ho happened to be in
possession of the stolen property at the time.
It is this difference which is critical to understanding
how the medieval Judenrecht operated.
The condensation of
German law in the Schwabens piege 1 (that is, the lav/ as practised
in Sv/abia), makes the point clear:
If a Jew sells something to a Christian or makes
another transaction with him:
he shall be the Christian's
warrantor according to Christian lav; [that is, if the original
owner proceeds against the present Christian owner, on the
grounds that the present Christian ov/ner owned what he did
merely because of an original theft], unless the Jew makes
a stipulation according to his own law [that is, uiiless
the Jew made it clear, upon selling the goods to the present
Christian ov/ner, that Jewish law applied, so that the present
Christian owner could defend successfully against the original
owner, without regard to whether the goods v/ere originally
stolen].1
In short, a Jew selling goods to a Christian had one of
two options.
On the one hand, the Jew could simply sell the
goods to the Christian, with the understanding thatj if the goods
were originally stolen and if the original owner brought suit
against the present Christian owner, the Jev/ish merchant, as
intermediary, would indemnify the present Christian ov/ner completely.
Alternative! v., the Jew could sell the goods to the
Christian, with the stipulation that Jev/ish law was to apply.
In such a case, if the original Christian owner brought suit
against the present Christian ov/ner, the present owner would have
no recourse against the Jev/ish merchant, and he would bear the
entire loss.
Accordingly, a Jewish merchant could sell his goods in one
of two ways:
(1) he coulcl indicate that the goods we re being
sold according to Jewish law, so that his buyer would
understand
that any liability attaching to the possession of stolen goods
could not be indemnified by the Jew; or (2) he could remain
silent, and sell the goods according to secular law, and according
ly guarantee that the purchaser did have recourse against him,
so that he would indemnify the purchaser in the event that
176
the original owner instituted a law suit against the purchaser.
We can imagine that Jewish merchants took whatever option was
best for them:
if a Jewish merchant sold according to Jewish
law, the potential liability of the purchaser was increased,
without the possibility of indemnity from the merchant.
On the
other hand, if a Jewish merchant sold according to secular lav;
(that is, without mentioning the stipulation that the goods
177 were
being sold according to the understanding of Jewish law
),
the Christian purchaser had the assurance that he was buying
with the full guarantee of the Jewish merchant, and that, in the
event that the original owner should suo him for conversion of
goods, the Jewish merchant would completely indemnify him.
In effect, therefore, a Jewish merchant's announcement
that
he was selling according to his own law must
178 have operated
somewhat like a disclaimer of warranties,
allowing a purchaser
willing to take the risk to buy at a lower price.
We can
speculate that there v/ere plenty of Christian buyers willing
to buy according to Jewish lav/.
R.
Conclusion
For a variety of reasons, embracing historical,
ideo-
- ^sslogical, and economic issues, medieval Jews situated
in the
modern territory of Germany enjoyed considerable prosperity
and autonomy.
Moreover, the secular authorities accorded
the Jewish system of lav/ great respect.
Jewish courts to exercise
Apart from
allowing
jurisdiction over Jev/s, German lav/
even incorporated elements of Jewish lav/ in at least tv/o
respects!
(1) it exempted Jewish criminal defendants from
every ordeal except for the oath of compurgation; and (2) it
allowed a Jewish merchant the option of selling according
to its own rules or according to the rules set forth by Jewish
law.
Xn retrospect, it can be argued that German law accommodated Jewish lav/ in these tv/o matters because Jewish lav/
was clearly more advanced and sophisticated
than German law.
Certainly no modern leg^l scholar would argue that we should
return to th-3 ordeal by fire as a method of solving disputes;
similarly, any commercial law scholar would argue today that
a bona fide purchaser, talcing for value, must be protected,
in order to stimulate the general economy.
At the very least,
l no
Frederick XI' s proclamation against tho blood
accusation"'"'
demonstrates that he took a direct and active interest in
familiarizing himself with Jewish law.
It is not at all un-
reasonable to suppose that intelligent and sensitive German
authorities compared their system of lav/ with the Jewish
system, and, when
they found that the Jewish legal system
v/as better in some respects, attempted to find x/ays of incorporating it.
_?9-
The tragedy v/as that the German population in general
appears not to have accepted such reforms.
When the Holy
l r>o
Roman Emperors exempted Jev/s from the various ordeals,"'
for example, local court authorities could have taken the
opportunity to have exempted Christian defendants from
the ordeals, by utilising a kind of equal-protection
ment.
In fact, they did not.
argu-
Instead, they maintained
the
ordeals for Christian defendants, and, apparently in an effort
to show their distaste for tho emperors' toleration,
resorted
IS"!
to the petty vengeance of humiliating a Jew taking his oath.
In the end, intolerance won out.
nonetheless, there was a time when the cross-fertilisation
of secular German and Jev/ish cultures resulted in mutual profit
to both.
The eastern European Jews, the Ashkena2is,
benefited from their sojourn in G e r m a n y . - 0 "
certainly
In the end, however,
Germany did not profit at all from the Jev/ish communities:
Germany missed
its chance.
The ordeals persisted, the inci-
dents of anti-Semitism arose, witchcraft hysteria
increased,
and, in general, Germany succumbed to all the excesses of
medieval superstition as it approached its climax tov/ard the
end of the middle ages. "
Medieval Germany, apparently,
was not ready to become a pluralistic society.
simply
Nonetheless,
a study of the interaction between Christian and Jew in medieval
Germany reveals the potential mutual benefit to disparate
groups willing to learn from each other.
00190
- ' 0 -
f'otes
See generally W.^ Keller. Diaspora (1965) at 1*1-174 and
0
,"01-247; Blumenkrans, Germany, 34--1096 [Chapter VII of
World
Historv
of
—.——•_— the Jewish
_- — — •—••Peonl® 2d Series,7 ed. C. Roth,•
at 152-174*1 (1966) n ass Am; and C. Potok.
Wanderings
1 ssSasst
ca* *•«—
ataa • esa TPav/cett
2.
E.q., a pogrom destroyed the entire Jewish population of
Mains in 1095; Blupenkranz, supr? note 1, at 164.
7
•
See generally M^Keen.* "'he | Pel lean History of Medieval
Surooe (19-63).
ET•
4.
Contrast the treatment- accorded the Jews in nearly every
other western European country, from which they were all
forcibly expelled (the name of the reigning authority is
given in parentheses):
France (Philip Augustus) in 113?;
Brittany (Duke John) in 12*9; 'uvjou (Count Charles II) in
1229; England (Edward I) in 1290; and Spain (Ferdinand and
Isabella) in 1492; translations of the expulsion edict
texts
are available in R. C'n as an, Church, State, and Jew in the
Middle Ages (1930)" at '-'09-227""
r
'
6.
H.- Chadwick, The Celts (1970) at 200.
Cf. A. Lewis, Emerging Medieval Europe (1967) at *'.0~*1
("£i?n such areas as Anglo-Saxon Britain, . . . paganism
was the rule; only Ireland, beyond Rome's old frontiers,
accepted Christianity").
7.
Id. at S r —37.
3.
Cf. Chadwick, supra note c-t at 206 (Irish missionaries
to Iceland identified as papas); the word papa now means in
X,
exclusively "pope," P. Dinneen, Irish-English
Dictionary
C:®|'), sub voce.
9.-.^iffihadwick, supra note
c
, at 199-212.
rtfit':" Id.
11.
This premise was assumed by both sides of the debate at
Whitby; see notes 14-*4 and accompanying text; see also
H. Shepherd, The Oxford American Prayer .Book Commentary (19c 0)
at Tii-lvii.
12.
Chadwick, supra note
r
, at 207-09.
Sheoherd, supra note 11, commentary to p. lii.
Chady/ick, supra note r-., at 193 ("This [the Easter controversy] was, of course, only a superficial cause of trouble.
The real cause lay deeper, and in the old struggle between
the ancient conservatism of the Celtic Church and the newer
cus toms of Home.").
I".
Id. at 199.
16. free note 7 supra and accompanying
1Bod**.
text.
Opera Historica, ed. C. Plummer (1395), H I ,
25.
[This book is actually two volumes bound as one, but with each
volume starting the pagination at 1.
Vol. 1 is Bede's original
Latin text, and vol. 2 consists of Plummer's notes.
To avoid
confusion, I will cite to Bede as author of the main text, and
will gi-*e the citation in the customary way, to Bede's own
books and chapters.
I will cite to P1ummer as author of the
notes, and will give the page number in the usual
13.
I*.
00192
format.]
„ 7 2-
19.
Id.
20.
Id.
21*
E.g. , 3ede actually puts the arguments about St. Paul into
the mouth or: the English spokesman, evidently to suggest that he
v/as generally more knowledgeable about scripture or that he v/as
sufficiently clever to anticipate arguments and make concessions.
Plummer states that "Ct]here can be no doubt that . . . Bede
states the arguments of the two parties in his own way, and in
his own words," in a note at 190.
22.
Bede, supra note 1 7 , III, 2'*:
The Irish appeal to the
example of the Apostle "who was considered worthy of reclining
upon the breast of the Lord" fqui super pectus Domini recumbers
dlonus fuitl; the reference is to John 1*:2* Chere and elsewhere
citation is to King James].
There is no Biblical authority for
maintaining that the historical John celebrated Easter in any
given way; it v/as merely an old tradition.
Shepherd,
supra
note 11, Commentary to p. lii.
2-.
Bede, supra note 17, III, 2 C .
24.
So styled in Shepherd, supra note 11, Commentary tp p. 229.
2".
Cf. Acts 29:17; 1 Cor.
Acts 18:18.
r
:7.
The interpretation of this verse is
obscure, however, and much more so the point which the Irish
clerics v/ere trying to make, PIumner, supra note 17 at 191.
2?
*
25.
Acts
21:26.
Cf. Acts 16:*.
CG00193
23a.
29.
Beds, supra note 17, III, 2".
As he .is traditionally styled in the Episcopal Church;
cf. S. Dorff and A. ^Rosett, A Living Tree (1980) at 26*
("Apostle to the Jews").
*0.
I could find no clear scriptural basis for this assertion.
Bede. supra note 17, III, 2 C .
ycaai " * ' J * • '
'
*2.
Bede, at any rate, considered the charge very serious,
and stressed the need for the Church to remove Judaic
supra note 17 at 190.
tendencie:
Once again, it is not clear
hov/ much of the speech which Bede puts into Wilfred*s mouth
is actually Wilfred 1 s or Bede's.
The only other nearly con-
temporary account we have is given by Eddius Stephanus, Life
of Wilfrid, translated in Lives of_the Saints [Penguin
J. Webb, trans.1
(19S~).
Books,
According to Eddius Stephanus, Chap.
10, Wilfred did little more than appeal to the authority of
the Council of Nicaea.
Bede, supra note 17, III,
?4.
Id.
31?.
See CJnadwick, supra note
2-..
at 207-10.
In parts of Celtic
Britain, Easter v/as observed in the Celtic tradition until as
late as the tenth century, i_d. at 209.
Lewis.? supra note 6, at 61-S.':.
7
7.
Id. at 32.
Prom my own experience, anyone familiar with Anglo-Saxon
can pick up an Old Saxon text and read it with ease.
CG00194
"Lewis>
supra note
40.
Id.
41.
Irf. at 62.
42.
Id.
at 61-62.
Chadwick, supra note
44.
E,a.,
at 186-99.
a priest from the court of Louis the Pious, named
Bodo, and. an archbishop named Andreas, Potok, supra note 1,
at *96.
4*.
Proclamation of Frederick II (12*6), in Chazan, supra
note 4, at 12':-.
See notes l c -16, supra, and accompanying text.
47
*
P.frazan, supra note 4, at 10 ("[t]he rulers of western
Christendom, hardly restricted by considerations of tradition
and accepted practice, were relatively free to follow the
dictates of utility [in giving toleration to the Jews]. . . .
The clergy was zealous in carrying its message [of anti-Semitic
propaganda] to the secular courts, and this tenacity was rewarded.
The rulers were, willingly or unwillingly, forced to
implement much of Church doctrine").
48.
Id,. at 19-*1 (reproducing, in translation, every early
Church decree affecting the Jews; the authors and compilers,
as one might by now suspect, were all Italian).
Gratian's Decretum, Part I, Distinctio LIV, Canon III,
citing Gregory's letter to Pascasius, Bishop of Naples (reproduced, in translation, in Chazan, supra note 4, at 20).
CG00195
r
-*0.
Gratian' s Decretum, Part I, Distinctio LIV, Canon XIII,
citing Gregory's letter to Libertinus (reproduced, in translation, in C
51.
a an, supra note 4, at. 21).
Presumably, the only "pagans," i.e., non-Christian,
at the time with which this paper is primarily concerned
slaves
(the
tenth and eleventh centuries) would have been other Jews or
Roslems, since most of Europe had been already converted to
Christianity.
During Gregory the Great's time (ca. 600),
however, much of western Europe, notably England and German,
remained pagan.
The tradition goes that Gregory saw Angle
slaves, brought from England, on the slave-block;
impressed
by their fair features, blue eyes and light hair, he asked
from what race they came.
He was told that they were "Angles,"
whereupon he punned on the name:
"No, not Angles, but angels."
He v/as inflamed with a sudden desire to save so beautiful
a race from the eternal perdition of paganism, and promptly
sent the first missionaries to Britain.
It should be noted that the ultimate source of this tradition comes, once again, from Bede, Bede. supra note 17, II, 1.
It has already been remarked that Bede v/as not altogether
impartial in his presentation of the English race, note 21, supra.
(On a more personal note, I should add that Gregory's pun on
Angle/angel v/as one of the first stories I learned, in Sunday
School:
I am an Episcopalian, and the Episcopal Church is
an offshoot of the Church of England.
Henry v i n ,
Ever since the days of
the Church of England took great pride in a story
relating how an Italian pope recognised the innate superiority
of the English, so that the Roman Church could only
legitimatize
itself by immediately proselytising the English.)
Be all that as it may, the point is that, when Gregory
wrote his original letters, Gregory had in rnind pagan slaves
who v/ere pagan even in the modern sense of the term, i.e. ,
adherents to a religion which has not survived at all to the
present day.
When Gratian compiled his Deereturn, the picture
-2.6-
had changed completely:
"pagan" now meant not the adherent
of an archaic religion by now completely wiped out, but the
adherent of one of the tv/o great western religions
Christianity) , namely, Jev/s or Moslems.
(excepting
Gregory had made an
effort to convert "heathens," that is, people neither Jewish,
Christian, nor Moslem, to the Church.
Gratian understood
him
to mean that any non-Christian should be induced, by any means,
to convert to Christianity.
Gregory v/as a man of his time and place, but his writings
nonetheless indicate something of a tolerance that appears
lacking in his followers, such as Gratian.
I suggest that what
had happened was that the meaning of the word "pagan" had
shifted completely from Gregory's day to Gratian's day.
As
a result, Gratian was able to follow the letter of Gregory's
lav/, but not the spirit.
r
-2.
Gratian' s Deere turn, Part I, Distinctio LIV, Canon XV,
citing Gregory's letter to Fortunatus, Bishop of Naples
(reproduced, in translation, in Chazan, supra note 4, at 22).
177
•
Raymond of Penaforte's Decretales, Title VI, Chap. II,
citing Gregory's letter to the Bishop of Lucca
(reproduced,
in translation, in Chazan, supra note 4, at 28-29).
c
4.
,rr
-.
O'xford Snqlish Dictionary, sub voce serf.
Gregory's own language intim
ated as much:
"However,
since they [the serfs] have belonged to the Jev/s for a long
time and have cultivated their lands, owing dues according to
the condition of the case, they may remain and cultivate their
farms, offering the customary payments to those people."
Chazan, supra notes
c?
- and 4, at 29.
Gregory realized
emancipating Jewish-owned slaves but not Jewish-owned
that
serfs
v/as an anomaly ("[b]y the strict meaning of the laws, those
who are on the Jews' estates should also be free," id.).
Nonetheless, he refused to go so far.
—17—
For a concise discussion of how serfs ran with the land,
see Ke.en, supra note 1, at ^l-^P.
^6.
A later pope, Innocent III (reigned 1198-1216),
expressly
prohibited Jews to have Christian nurses or servants, Raymond
of Penaforte's Decretales, Title VI, Chap. XIII, citing
Innocent's
letter to the Archbishop of Sens and the Bishop of Paris
(reproduced, in translation, in Chazan, supra note 4, at *2-1i).
The fear which Innocent expresses is quite clearly that of a
too great intimacy between a Jex^is'n domestic servant and a
Christian master:
what should happen to their children?
r 7.
'
Pot ok, supra note 1, at *96.
r
8.
Gratian's Deereturn, Part I, Distinctio LIV, Canon XV,
Id.
citing Gregory's letter to Fortunatus, Bishop of Naples
(reproduced, in translation, in Chazan, supra note 4, at 22):
"Indeed it is necessary that you protect carefully those who
happen to lose their slaves, lest they perhaps consider that
their well-being has been improperly harmed."
-9.
Id
60.
Id_. ("then they Hi. e. , the slaves converting to Christianity]
shall receive their price from a Christian buyer").
cation is quite clear:
The impli-
a Christian who pays for. the slave during
the relevant time period gets to own the slave, who has then
received his "price" and therefore cannot complain.
61.
Blumenkranz, supra note 1, at 169 (citing the Tax Ordinance
of Raffelstetten
S2.
•
[Bavaria'! , 906).
See generally Chazan, supra note 4, at
iiL* Lincoln's Emancipation Proclamation, issued in 185^.
It freed all slaves held by States in rebellion; it did not
free slaves held within the border states.
Since 186? marked
the high-water mark of the Confederacy, with the Battle of
Gettysburg, and since the federal government did not then
control any rebellious territory, the immediate effect of the
Emancipation Proclamation v/as not to free a single slave:
it
v/as issued merely as a p r o p a g a n d i s t s tool, to mobilize the
North..
64.
See Lewis, supra note 6, at 61-62, 6^-57.
ii'
see also note
C
1 supra.
56.
Lewis, supra note 6, at 66.
67.
Id
68.
Cf. note 80 infra, and accompanying text (Henry III deposes
three contending popes simultaneously).
69.
See generally Paul the Deacon, History of the Lombards
[ed. and trans, by W. Foil Ike] (1974), esp. editor's note at
70.
G. P r e v i te-Orton, 1 The Shorter Cambridge Medieval History
(19667, at *14-1~.
71
•
72.
See notes 56-67 and 69-70 supra, and accompanying
See generally Paul the Deacon, supra note 69, at 289-314.
C. Previte-Orton, supra note 70, at
74.
text.
See note 64 supra, and accompanying text.
See oenerally Keen, supra note
~
'
" -L. "*"*' '
Charlemagne established
his capital at the city of Aachen (Aix-la-chapelle).
This city
v/as in the Alsace-Lorraine region, and continually battled for
between France and Germany.
Currently, Aachen is part of West
Germany, just inside the border, and Charlemagne's citadel,
chapel rwhence the French name, Aix-la-chapelle], and tomb
can still be seen by tourists.
76.
Id.
Charlemagne split his empire up between his three
sons, with the eldest becoming the titular Holy Roman Emperor.
These sons, in turn, split up their kingdoms among their own
sons, with Charlemagne's eldest son bea.ueathing the imperial
title to his eldest son.
What with the premature deaths of
some of Charlemagne's heirs and the imperialistic designs of
the remaining heirs against the others, when the dust
finally
settled, the heirs of Charlemagne's grandson Charles the Bald
found themselves kings of France, asserting their claims
against the empire, and the heirs of Charlemagne's grandson
Lev/is the German found themselves still in the line of the
titular Holy Roman Emperors.
While Charlemagne himself ruled
over most of modern France and Germany, therefore, the history
of his succession resulted in the heirs to his imperial title
ruling over only what is modern Germany.
Charlemagne is still considered, by German historians, to
have established the First German Reich.
The Holy Roman Empire
lasted from Charlemagne's coronation by Pope Leo III in £00 C.E.
until Napoleon asserted his claim to empire and caused
the
dissolution of the Holy Roman Empire in 1306, at the Congress
of Vienna.
As a result, the First Reich lasted just barely
over a thousand years, from 300 until 1806.
The Second Reich
was established by Bismarck's consolidation of the Germanicspeaking peoples under one nation, in 1370; it lasted only until
1913, when the Allies dissolved it.
In 19 7 *, a petty German
bureaucrat, hailing from Linz, Austria, attempted to establish
the Third Ueich.
So great v/as the prestige of Charlemagne's
CG00200
-40-
Holy Roman Empire, that this bureaucrat boasted that his own
Reich would equally last a thousand years.
In fact, it did not:
in 1945, the rest of the modern world, by the efficacy of its
moral persuasion, persuaded Germany to give up its pretensions
to yet another Reich.
The bureaucrat who had attempted to
claim for himself the mantle of Charlemagne wound up committing
suicide in a bunker in Berlin, on April
7
0 , 194r-.
His Reich,
the third, lasted only twelve years.
The modern world can take at least some consolation,
there-
fore, from the fact that German Reichs at least show a tendency
to lasting for less and less periods of time.
77.
1See
Keen, supra note
j» 1
78.
Id. at 101 ("[o]nce this [tne assertion of the papal rule
against the Byzantine Empire] had been accomplished, however,
they [the popes] found that they had taken leave of a distant
master, only to find another [i.e., the Holy Roman Emperor]
nearby").
79.
Sfte generally Keen, supra note
80.
Id. at ?-•.
The three popes deposed by Henry III were set
up by the Lombards, the aristocratic families of Rome (the
remnants of the Roman Senate), and the pov/erful Church
respectively.
31.
C. Previte-Orton, supra note 70, at 487-492.
G2.
Id. at 492-97.
e.2.
IQ. at 494.
84*
See especially notes
and accompanying
text.
leaders,
-49-
8E.
See note 42 and accompanying text.
86.
Henry IV is known for two things:
(1) his struggles against
the papacy, culminating in his standing barefoot in the snow,
at Canossa, to seek Gregory's temporary forgiveness, in 1077,
see note 81 supra; and (2) his emancipation of the Jews at the
Land-peace of Mains, see note 117 infra.
That Henry became
famous for these two aspects of his reign cannot be mere coincidence.
notes 49-62, and accompanying
text.
80.
Proclamation of Henry IV (1090), § 7, in Chasan, supra
Sf '
note 4, at SI.
09.
Blumenkrans, supra note 1, at 169.
90.
I give the standardised spelling of his name.
In German,
it was Rudicer; Chazan simply omits the umlaut and spells it
r.udiger.
91.
Chazan, supra, note 4, at l"7-|=9; see also G. Kisch, The
Jews in Medieva1 Germany, 2d ed. (1970), at 118 [hereinafter
Kisch].
92.
Proclamation or Rudiger (1084), § 6, in Chazan,
note 4, at ~3 (emphasis added).
9*.
Id., § 4.
94.
, § Q.
9r-.
See note •"6 supra.
55
Potpk, supra note 1, at 196.
•
00202
supra
-40-
97.
See note 4? supra, and accompanying text.
Ruediger
could take the action that he did, as a German cleric;
presumably, Italian clerics would have been considerably
more reluctant to donate such a gift.
That Ruediger donated
the land is clear from his wording in his proclamation,
supra
note 92, § 4, in which he states forthrightly that he "[has]
. . . given" the Jews the land.
98.
JCd. , "land of the Church burial ground."
99.
See notes * 2 - a n d
84 supra, and accompanying text.
100.
See note 47- supra, and accompanying
101.
See note 77 supra.
102.
Cf. note 86 supra (Henry IV's political struggles to
text.
assert his power against the papacy and to emancipate the
Jews cannot have been entirely coincidental).
10*.
S.g., the decrees of the popes that Jews could not
own Christian slaves or employ Christian nurses or servants,
versus the decrees of Ruediger and Henry IV contra; see notes
60 and 38-89 supra, and accompanying text, and notes 94-9*
supra, and accompanying
text.
104.
See notes 47 and 48, supra.
10*.
Proclamation of Henry IV (1090), introduction, in Chazan,
supra note 4, at 60.
106.
See notes 94-9- and 10" supra, and accompanying
107.
Id.
text.
-4*-
108.
Proclamation of Henry IV (1090), § 7, in Chazan, supra
note 4, at 61.
109.
See note 80 supra, and accompanying
110.
Keen, supra note ?, at 7C-.
s
——
111.
See note 35 supra.
1
1
C .
11*.
Prevlte-Qrton, supra note 70, at 492.
Keen ; supra note
114.
text.
at 78-30.
Prev-ite-Orton, 2 The Shorter Cambridge Medieval, History
(1966), Appendix * at 112=" [denoted as""Rivals to Henry IV"],
and C. Previte-Orton,
1 The Shorter Cambridge Medieval History
(1966) F.t 497.
ll17*
C. Previte-Orton, supra note 70, at 497.
116.
Kisch at 140.
117.
Id.
118.
For the view that the Land-peace was essentially
ineffec-
tive, see H. Fisher, 1 The Medieval. Empire (1893) [reprint,
AMS Press, ~1959'J , at 20^-047
119.
Kisch at l?1;.
Prior to the Land-peace, the status of
the Jews v/as dependent upon the law of "privilege"
priyileqium, lit. 'private lav/*].
[Lat.
Tho Holy Roman Emperor
extended privileges to select individuals or groups; while
the Jev/s v/ere not the only ones to get the privileges, the
privileges remained the only legal protection for the Jews.
Id.
The privileges apparently functioned in much the same
00204
-40-
way as early English charters did for embryonic corporations.
120.
Kisch at 119 et sea.
121.
See generally Keen, supra note
122.
Id. at 82-81.
121.
See note
124.
See generally Keen, supra note 1.
12 r *
a
supra.
chronicle from the days of Henry VI (1196), re-
produced, in translation, in Chasan, supra note 4, at 161-65.
Count Otto of Burgundy, brother to Henry VI, had ordered that
no Jews should be harmed as a result of the hysteria caused
by the Crusades.
Nevertheless, a pogrom occurred at Speyer,
the same city in which Ruediger had given such protection to
the Jews.
In a rage at the pogrom, Otto besieged the city;
he lifted the siege only at the advent of his brother the
emperor.
Henry VI exacted heavy fines from the populace
because of their guilt in the pogrom.
126.
For the continual attempts of the Carolingian Empire
to expand eastward, see general!" Carolin.oian Chronicles
[including The Royal Franklsh Annals and Nitha~rd's Histories,
trans. B. Schola] (1972).
The original impetus was to convert
the pagan Saxon tribes to the east of the empire, but long after
their conversion, the empire continually pushed eastward.
See C. i?revits-Orton, supra note 70, at 4 n 9 .
Even Hitler
still maintained that .Germany had a right, somewhat like the
American concept of "Manifest Destiny," to the "Drang nach Osten."
I'-7*
See generally Lewis, supra note 6, esp. at 96, 122,
-7
14 7, l 0~~-2.
~4C-
123.
Id.
129.
Id.
1*0.
.Id.
1*1.
Charlemagne's ancestors, notably his grandfather Charles
See also. Blumenkranz, jsui^ra note 1, at 169-70.
Martel, had fought hard against the Saracens invading from
Moslem Spain.
Charlemagne's own campaigns against the Saracens
form the backdrop of the medieval poem, The Song of Roland.
122.
The Royal Prankish Annals, in Carolingian Chronicles,
j-"" *
_
i
.
supra note 125, sub annis 300-801.
127.
jcd. sub anno 301.
1 7 4.
I7-,
See generally Potqk, sujJra note 1.
sjuora note 4, at 12*. The "blood
accusation"
had been raised natch earlier, by Apioo, during the Roman Empire,
Keller, supra note 1, at *9.
However, this appears to be the
^irst time that the slander v/as raised within the confines of
what is now modern Germany.
1*5.
Ch_aj3an, supra note 4, at 12*.
1*7.
Proclamation of Frederick II (12^6), in Chazan, supra
note 4, at 12*~26.
It was in the context of this proclamation
that Frederick asserted his familiarity with Jewish law, see
note 4'" supra, and accompanying text.
l
ISA
The Jev/s v/ere now made into "serfs
=
— —sell
— • at 1 4 * — 4 .
of the royal chamber," servi camerae nqstrae [medieval Latin
1*3.
spelling normalized].
See also Pgfcok, su£ra note 1, at 41 c .
CG00206
-40-
1-9.
Kisch at 14*-4 C .
140.
Kisch at 144 and 423, n.47.
141.
Ic!.
The original reads:
Judeos autem etsi tam in imperio quam in regno
nobis communi jure immediate subjaceant, a nulla tamen
ecclesia illcs abstulimus, que super eis jus speciale
pretenderet, quod communi juri nostro merito preferretur.
[Moreover, they [i.e., secular authorities] should
subject the Jews, even so, just as much to our empire as
in a kingdom
[i.e., as in any of the petty German
states],
according to our common law; v/e have removed them, even so,
from [the .jurisdiction of] no church, because [the common
lav/] exerted over them a special law [i.e. , the law of
privilege, see note 119 supra], which v/as preferred by the
common lav/, according to our own merit.]
Id. (my translation).
142.
See note 1 supra.
14?.
See notes 1 and 2 supra.
144.
rd.
The schools along the Rhine developed real advances
in Ashkenazic culture; see note 146 infra.
1A^. See generally Leo ftpsten, Hopray for Yiddish.
146.
Keller, supra note 1, at 172.
Heor ha-Gola, id.
(1982).
The Hebrew version is
Rabbenu Gershom represented the acme of
Ashkenazic culture, id. at 171-7*; see also Potok, supra
note 1, at -99-400.
(It should be pointed out that Maimonides,
a great medieval Jewish scholar, was not in competition with
Rabbenu Gershom, since the former was Sephardic, and the latter
was Ashkenazic, and the tv/o Jev/ish communities remained
distinct.)
-40-
147.
Potok, supra note 1, at 401.
Kisch, at 172, states
1
that Rabbenu Gershom s Takkanah decreed a ban against any
Jew who even declared an intention to take another Jew to
a secular court.
Undoubtedly, Rabbenu Gershom based his
prohibition on Talmudic law; the Talmud forbade placing
disputes before secular courts, Gittin 88b, as quoted by
5. Dorff and A. Rosett, A Living Tree (1980), at 106.
It
is also perhaps not unreasonable to speculate that the Jewish
authorities looked askance at the secular courts, for fear
of the discrimination, which the secular courts might be
expected to exercise against Jewish parties.
143.
Potok, supra, note 1, at 401.
I49*
Kj^sch at 172,
It should be noted that Rabbi Jacob's
decree did not apply to those Jews brought before secular
courts because they were accused of violating the secular
criminal lav/, id. at 441 n.*.
l r 0.
Christian authorities opposed the autonomy of the Jewish
courts "only sporadically," Kisch at 441 n.1-»
1-1.
See note 92 supra,- and accompanying text (emphasis added).
1 r 2.
Proclamation of Her.ry IV (1090). § 1", in Chazan, supra
note 4, at 62.
l c 4.
See note If?6 infra.
Kisch, however, remarks that the
i'oissener ".echtsbuc.h, a compilation of Saxon law, is unique
in requiring Christian jurisdiction for a criminal offense,
when the criminal victim was a Jew, Kisch at 186 (citing
Fieissener Pechtsbuch III, 17, 40).
The implication which
Kisch makes is clearly that other Holy Roman Empire jurisdictions allowed Jewish courts to decide criminal cases, at
least when both victim and defendant were Jewish.
However,
his implication is contradicted by what he says elsewhere:
see note l r S infra.
1
:T
.
l c 5«
See note 119 suora.
Kisch at 13 r .
Even so, a Jewish defendant could be
brought before the secular courts only "ab er vn hanthaftiger
tad beoriffin wirt" ['only if he is seised, red-handedly, in
the act'.], id. (my translation).
lc7.
Cf. Proclamation of Henry IV (1090), i 11, in Chaaan,
supra note 4, at. -52 (by exempting Jews from the ordeals, the
clear implication is that Christians were subject to the ordeals).
See also Kisch at 26 r -268, generally.
1 - 8.
Id_.
1 9.
Id.
iSO.
Kisch at 275-77.
161.
S. Dorff and A. Rosett, A Living Tree (1980) at 310-11;
see also Kisch at 27S ( !l [t]he taking of an oath by a Jew v/as
performed always in accordance with the rules of Jewish
152.
law").
Such an ordeal actually appears to be more folklore
than attested in documentary records, but there is some evidence
that such ordeals v/ere actually used:
see F. Lot, The End of
the Ancient World and the Beginnings of the Middle Ages [Harper
Torcnbooks paperback reprint] (1961) at 398-99.
153.
A modern analogue:
a Jewish friend once advised me to
announce that I v/as an observant Jew, if ever I should be
admitted to a hospital.
straightforward:
His reasoning v/as simple, and quite
if I accepted the food generally prepared
by the hospital cafeteria for all its patients, the food would
be pretty bad.
On the other hand, if I insisted upon kosher
-49-
food, the diet would have to be especially prepared for me,
and X would at least enjoy the advantages of an especially
cooked meal.
The point is that there are times when it is advantageous
to be Jev/ish, especially when the surrounding culture is not
so advanced in some respects as is Jewish culture.
164.
Kisch, at 273-79, gives an example of the Jewish oath.
ST '"*"' 1
16 r .
Kisch at 281-8*, citing in particular the S achsenspiage1
(the law co--'a book o° Saxony).
166.
.Kisch at 17*; see generally,, also, D. Shohet, The Jewish
Court In 1 the
Middle Ages (19?1).
1
-I.1
=
=
167.
Quoted b\ Kisch at 44?. n.8; translation mine.
Klscjh at 7.
id.
Judenrecht is a v/ord found only in German,
While it literally m«ans "Jev/ish law," what it actually
me<?.ns is the corpus of German secular law accommodating Jewish
lav/; it emphatically does not mean "Jev/ish law" in the sense
of Jev/ish jurisprudence as it developed independently of the
secular lav/, id.
169.
Id.
See also Kisch at -O-^l:
the documents providing
us our information about German medieval law are primarily
private compilations and treatises, reflecting customary law,
already established
1*?0.
(somewhat like modern
hornbooks).
See, e.g., UCC 9-*07(2), affording the same protection
to a modern bona fide purchaser.
171.
_Id., official comment (2).
172.
See note 127 supra, and Potok, supra note 1 at *97.
00210
-40-
Kisch at 21*-l c .
174.
Id.
175«
17S
»
^l'; (emphasis added).
ucc
2-*16(*•) (a) (a seller can sell with the stipu-
lation that the goods are sold "as is," so that the buyer is
put on warning that he has no recourse against the seller;
otherwise, implied warranties
apply).
177.
See note 17 c supra, and accompanying text.
178.
See note 176 supra.
179.
See notes 4* and 137 supra, and accompanying text.
180.
See notes 1*7-61 supra, and accompanying text.
181.
See note 16* supra, and accompanying text.
182.
S_ee notes 144 and 146 infra.
For the application of
the word Ashkenazi to the medieval German Jewish communities,
see Potok, supra note 1, at *94.
Ashkenaz is a Biblical
word, descriptive of an unknov/n land; no one knows when it
first became applied to the German settlements, id.
18*.
See generally Potok, supra note 1.