The Borach Levi Case: Divorce and the Assimilation of the Jews in Eighteenth-Century France
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In 1754 the seemingly innocuous request to Church authorities by the converted Jew Borach Levi to dissolve his marriage to his Jewish wife and marry a Christian initiated one of the most notorious divorce cases in pre-revolutionary France. Its importance was captured in the words of Levi’s defender Loyseau de Mauléon, “this is a matter that touches equally on the rights that accord between the new convert, religion and the state.” Levi’s supporters included such members of the elite as M. le Duc de Chatillon, Mme la Marquise de Rosen and no less a personage than M. le Duc d’Orleans, while his opponents included the Archbishop of Soissons and other authorities in the Catholic Church. Levi’s case was an example of cases publicized as judicial memoires in eighteenth century France which, as Sara Maza has suggested, were published to influence emerging public opinion. The memoires generated by Levi’s case sought to elevate the status of Jews to the same level as other French subjects in the same way that they had been used to recognize Protestant marriages.
Influenced by Enlightenment ideals of egalitarianism and individualism, juridical reformers saw social exclusion of groups such as Protestants and Jews as anachronistic. However, unlike the Protestants, the Jews were distinguished by more than their religious beliefs. The particularism of Jews, which manifested itself through the autonomy of the Jewish community and their distinctive practices, was repugnant to French values. Reformers believed that the Jews could not easily integrate into French society without the elimination of their particularism, especially as it related to control over personal status. However, the loss of control over the personal status of its members eroded the autonomy of the community without providing a path for integration for those who wished to leave the community, exacerbating marginalization rather than assimilation. This paradox was directly related to the ambiguous and conflicted status traditionally held by Jewish communities in France.
While the French Old Regime in the mid-eighteenth century was a conglomerate of particular bodies, certain groups were distinguished by their beliefs or comportment to be essentially excluded from the larger French society. Jews, set apart by their religious beliefs and customs, were regarded and feared as a “nation within a nation.” They could legally practice their religion while other activities, such as entry into most professions and trades, were severely restricted. Although they did not have the same status under the law as other French subjects, Jews did have the right to be judged by their own separate courts on issues regarding their personal status including the right to divorce, a right not permitted to any other group in France.
There was an added dimension to Levi’s case beyond the nuances in Jewish status. Beginning in the sixteenth century the French state had sought to assert its authority over marriage, treating it as a judicial contract only subsequently sanctified by the church. This development accompanied the process of state building by the French monarchy by placing the business of defining and controlling marriage within the hands of Royal officials, especially those in parlements. However, in spite of secular authority over marriage, as late as the middle of the eighteenth century, marriage was still regarded by prominent jurists such as Pierre le Ridant as indissoluble. Nonetheless, the remarriage of converts during the lifetime of their non-converted spouse was frequently, if inconsistently, permitted in order to promote conversion. Yet divorce posed an acute dilemma for converts seeking to assimilate into French-Catholic society.
According to Jewish law only the man could initiate the divorce, and the wife of a converted Jew remained legally married as long as her husband did not divorce her according to the formalities of Jewish law. On the other hand, converts were discouraged from initiating divorce by the Catholic doctrine of indissolubility of marriage. A Catholic convert who initiated a divorce according to Jewish law was abiding by a tradition that, by conversion, he had rejected. The inability to divorce a recalcitrant spouse meant that conversion had not expurgated the ties to the Jewish community or eliminated one’s Jewish identity. Doomed to a life of celibacy, the convert’s ability to assimilate into Catholic society was definitively compromised.
The inability of the convert to divorce also compromised the power of the Jewish community to determine the private life of its members. Jewish women who were married to converts could not remarry within the community without a divorce, thereby eroding the exclusivity of the group’s identity and the community’s power to protect the relationship between its members and the surrounding society. This challenge to Jewish communal autonomy exemplified the paradox of the reformers’ attempts to integrate the Jews. The reformers enlightened desire to elevate the Jews to the same status as other French subjects also required making Jews indistinct from other French subjects, particularly where Jewish practice conflicted with Catholic ideals on personal issues such as marriage and divorce. The final judgment in Levi’s case, which refused him permission to remarry during the lifetime of his Jewish wife, was eventually incorporated into the July 1784 lettres patentes (almost thirty years later). The inclusion of Levi’s case in the letters patentes was part of a series of restrictive regulations intended to break the autonomy of the Jewish community by decreeing the royal courts could rule on Jewish issues of personal status. These regulations both exerted demographic control over the Jewish population and aimed at eliminating particularism as part of an official policy of assimilation. To a small but growing number of Jews who rebelled against the discipline of the Jewish community by struggling to reach sovereign courts, this was a welcome development. However, to leaders of the Jewish community it posed a dangerous challenge.
The Borach Levi case inspired fervent political and theological debate as well as threats, assassination attempts and bribery. From the time Levi moved from his original residence of Haguenau to Paris in 1751, and began the process of conversion, he was plagued by resistance from both the members of the clergy and the Jewish community and intrigue and conspiracy by his debtors in both groups. Enlightened reformers chose to champion Levi's case despite the perception that he had an unsavory character. Levi had many debtors within the Jewish community who feared that his conversion would leave them with no recourse to collect on those debts. When his reputation as a debtor and the possibility that he may have had alternative motives to convert became known it also destroyed his support from church authorities. This opposition contrasted with the support of members of the political elite, who chose to support Levi as an example of enlightened reform despite his reputation, probably as part of a politicized challenge to the authority of the church. Although originally having the support of the archbishop of Paris, he was obliged to leave Paris when the priest charged with his instruction was bribed (ostensibly by some members of the Jewish community) to stop the process. Despite the support of powerful patrons, including the M. le duc de Chatillon and Mme la Marquise de Rosen, who had agreed to act as his godparents, all efforts to set the date for the baptism were refused. Even Levi’s attendance before the archbishop on April 6, 1752 with a certificate from the magistrate of Haguenau to prove that he had the protection of the Duc d’Orleans did not help. The archbishop of Paris refused the baptism on the grounds that Levi’s reputation and character made him a poor subject for baptism, and that he would never permit him to be baptized in Paris. This position was supported by his view that, as Levi was not domiciled in Paris, the archbishop did not have authority to baptize him in any event.
In the face of this refusal Levi sought the advice of three advocates of the parlement of Paris. Relying on their legal opinion, Levi made a formal request to a priest from Saint-Sulpice to fix a date for the baptism with the demand that he be given an explanation should his request be refused again. This bold step deepened the intrigue. The translator assisting Levi (who spoke German) was threatened and refused to continue to act as his interpreter, eventually disappearing altogether. After further consultation with his advocates, Levi published a memorandum that recorded the intimidation from members of the clergy and the Jewish community that he and his original sponsor, father Lamblat, suffered. The intent of the memorandum was to garner support among the members of parlement, the priests in the city and faubourgs of Paris, and members of the Church including the cardinal of Soubise and bishop of Strasbourg. Levi finally found a willing priest in the parish of Montmagny (close to Enghien), named Pierre le Soudier (not insignificantly a licensee of the Sorbonne), to assist. The baptism was administered in the church of Montmagny on 10 August 1752. Upon his conversion, Borach Levi took the name Jean-Joseph-Francois-Elie Levi. However, neither the opposition to his baptism nor the intrigue ended. The archbishop of Paris obtained a lettre de cachet dated 29 September 1752 against Pierre le Soudier, who was exiled to Haguenau for having performed the baptism.
The second component of this famous case, Levi’s efforts to dissolve his marriage to his Jewish wife Mendel Cerf, was no less intriguing. In October of 1752, Levi demanded the conversion of his wife and two daughters with the reasonable expectation that this would instigate dissolution of their marriage. Advocates of the sovereign council of Alsace (where Levi resided before his baptism and where Mendel Cerf continued to reside) had advised him that his baptism would be endangered if he continued to cohabit with a wife, who refused to follow him into Christianity. As well, in Alsace it was customary for Alsatian authorities to recognize a wife’s refusal to convert as a legitimate basis to dissolve a marriage. Mendel did not acknowledge Levi’s request. Nonetheless, after Levi delivered his request to Mendel, he placed his two children in Catholic religious communities. They were eventually baptized on 29 March 1755 at Villeneuve-sur-Bellot with Levi’s own godmother, Mme de Mauroi, acting as godmother for his children. Satisfied with the result, Levi returned to Paris where he stayed for eighteen months without concerning himself with his wife further. During this period he passed the greatest part of his time at Villeneuve-sur-Bellot in the diocese of Soissons in the home of Mme de Mauroi, his baptismal godmother. It was in Mme de Mauroi’s home that Levi met a Christian domestic named Anne Thevart, the daughter of Nicolas Thevart, and decided to marry her. He obtained Anne Thevart’s consent to their marriage that was subsequently witnessed on 1 June 1755 before a notary at Villeneuve. However, Mendel Cerf posed an unexpected obstacle to his plans.
Not having a satisfactory response from his wife to his original summons, Levi presented a second summons to Mendel Cerf on 13 May 1754. This time Mendel’s response was exactly what Levi desired and expected. In spite of the baptism of her children, she refused to swerve from her religion. She responded that she had been born in Judaism and she would remain resolute in her faith until she died. She wrote a poignant reply to Levi where she begged her husband not to abandon her. She also asked him to send her papers for divorce according to Jewish law, should he choose not to return, so she could remarry a Jew. This Levi was reluctant to do because it would run afoul of the Christian doctrine of indissolubility and compromise his standing as a convert. However, not anticipating any further obstacles, on 22 May 1754, the date he was to obtain a response from Mendel to his summons, he was in Paris with Nicholas Thevart to obtain the notarized consent to marry Thevart's daughter, Anne.
Despite two further summons, Mendel Cerf remained constant in her Judaism. Levi relied on a number of decrees by the sovereign council of Alsace and on a consultation of three advocates of the sovereign council of Alsace dated 18 March 1754. Claiming that it was established practice to allow converts to dissolve their marriages to recalcitrant spouses, on 4 October 1754 Levi wrote to the Bishop of Strasbourg to request the dissolution of his marriage. He also submitted a request to the Bishop of Uranopole and the Official General of Strasbourg to permit him to marry in the Catholic Church.
An official ordinance dated 23 October 1754 gave him permission to make a final request to Mendel Cerf in person on 7 November 1754. Mendel did not appear in court and a default judgment was rendered against her stating that Levi was “free to enter into marriage, in the Holy Catholic Church, Apostolic and Roman, with a person of the same religion.” Once this judgment was obtained, Levi left Alsace and requested that a priest of Villeneuve publish the bans.
The real point of departure for the Levi case came when the priest of Villeneuve, with the backing of Archbishop Christophe de Beaumont, refused to publish the bans for Levi’s marriage to Anne Thevart. Levi filed an appeal of the decision on 13 June 1755 and a request on 30 June 1755 to the Officialité (ecclesiastic tribunal) of Soissons to permit him to marry. He also gathered the support of his godmother Madame De Mauroi and others who corresponded with the Bishop of Uranopole to assist and to obtain a dispensation from Rome if needed. On 6 August 1755 a priest of Villeneuve responded to Levi by declaring his concurrence with the judgment of his superiors, refusing Levi permission to marry. Although Levi had compromised the success of his appeal by failing to notify his wife of the judgment of the Officialité of Strasbourg (rendered 7 November 1754), the crux of the decision was the challenge to Levi’s assertion of domicile at Villeneuve, an issue linked to his Jewish status.
According to French jurisprudence, as a Jew Levi did not have any fixed domicile, did not belong to any diocese, and had lesser status than a vagabond. In the words of the jurist Denisart, “It is certain that a Jew has no rightful domicile, he has no status in the realm. Moreover, all the members of his nation are wanderers. He is not a citizen of anywhere. When he resides in France he is a stranger in every city.” This left Levi without standing regarding the right to celebrate his marriage because:
In the baptismal proceeding Levi argued unsuccessfully that he had an established domicile in Paris regardless of his status as a Jew, and that the diocese of Paris had authority and was under an obligation to baptize him, particularly because of the eight month delay in granting the baptism during which time he had resided in Paris. Ironically, this argument left Levi in the untenable position that to acknowledge the bishop’s authority would also require him to acknowledge the bishop’s refusal to allow him to remarry. This would prevent him from severing his ties to his Jewish wife, thereby binding him to the Jewish community, compromising his baptism, and placing him in a worse position than lapsed converts, who were shunned by both the Church and the Jewish community. Levi's situation was in a precarious limbo because his conversion had severed his connection to the Jewish community. His family had abandoned him and his coreligionists were forbidden to have any commerce with him, leaving him with no way to recover considerable sums due to him. He could not return to the Jewish community without risk to his life. Similarly, although he had powerful Catholic patrons, if he appeared to lapse in his Catholicism their protection would be lifted and the doors of the Catholic community to which he sought entry so urgently would close against him.
The position taken by Levi’s advocates in the ensuing legal challenges to the Officialité of Soissons, and subsequently by the parlement of Paris, were remarkable for their exposition of enlightened thought. They claimed that refusing Levi permission to marry would undermine his baptism, which was the basis of citizenship that should be open to all because of the universal nature of Jesus’s sacrifice. In the words of Levi’s advocate Loyseau d’Mauléon:
Levi’s opponents argued that consistency in the law was critical to governance. The law must be “without any complaint or division,” a claim that ultimately challenged the toleration of particularism. This required the appropriate delineation of authority. In this regard, Levi’s opponents claimed that while the parlement of Paris did not have the authority to make exceptions regarding dogma, it could judge facts and enforce established doctrines. The Church’s role was to use persuasion and determine issues of dogma and resolve conflicting opinions on canon law. The King, as the protector of canon law, guarded against the danger of inconsistency and offence to divine law that resulted from the sanctioning of rituals based on secular opinion and practice. Moreover, the Crown’s role was to protect the precepts of the scriptures and the canons of the Church. The authority of the King in these matters could not be contested by either the Church or the parlement, and those who challenged this authority must be “reprimanded by the rigor of the sovereign.”
The Bishop’s Court of Soissons pronounced and denied Levi's appeals on 5 February 1756. Levi appealed this decision to the parlement of Paris, and in November 1757 the case was heard before an audience of the Grand Chamber of the parlement of Paris. The parlement was confronted by a plethora of inconsistent practices regarding the remarriage of converts. In some cases, ecclesiastic tribunals, hoping to encourage conversion, particularly in Alsace, considered marriages contracted before baptism as null. In other cases, they refused to recognize the dissolution of Jewish marriage to permit remarriage to a Catholic. Appeals to the civil authorities such as the local parlement or community councils were equally inconsistent. This confusing legal landscape reflected the opposing trends in regard to assimilation of the Jews.
On the one hand, Levi’s advocates asserted that not all marriages were “sacrosanct.” They claimed that marriage between two Catholics undertaken within the Church was entirely distinct from marriages between infidels or from mixed marriages. Although marriages between infidels, or between a Catholic and an infidel, were legitimate bonds as “an ordinary contract,” they were not of the same sacramental nature of Christian marriage and the principle of indissolubility was not applicable to them. Non-Catholic marriages should not be considered “like a type of mystical union of the sort that was absolutely forbidden to touch.” Therefore, while Jewish marriages could be recognized as having valid bonds, they were not made in the same light as the marriage of Jesus with his Church, and thus the principle of indissolubility should not apply to them. Moreover, Levi’s advocates argued that the Church recognized that a marriage that preceded conversion and was not concluded in the Church could be dissolved according to the rites in which it was formed. This argument was, therefore, a plea for recognition of Jewish divorce. However, Levi was not seeking to dissolve his marriage to Mendel Cerf according to the law “that was given in the synagogue” as a Jew, but according to the maxims of the Church into which he had converted. He was seeking a new identity as a Christian. To resolve this dilemma, Levi’s defenders relied on the codes of Theodosius and Justinian, which asserted that the Church had always permitted exceptions to the rule of indissolubility, even for Christian marriages, the most significant of which was adultery. Moreover, Levi’s defenders also asserted that if the hope of converting a non-believing spouse proved futile, then remarriage should be permitted so as not to, “place the faith of the convert in danger.” De Mauléon relied on authorities such as St. Augustine and St. Thomas in the ecclesiastical law to support his position.
This argument provided a practical solution for converts by treating them as having established entirely new identities by becoming Catholics. Just as in Jewish doctrine, the creation of this new identity rescinded all former obligations. The dissolubility of Jewish marriage was secondary to the idea of the convert’s essential rebirth as a Catholic and his ability to integrate into French society. A convert should be permitted to change his social identity and to eliminate any ties he had with the Jewish community. Ultimately, Levi’s defenders saw conversion and total assimilation as preferable to elevating the civil status of Jews in France. One of Levi’s defenders, De Mauléon, expressed the concern that in the cities where Jews had acquired more privileges conversions were rarer. On a practical level, De Mauléon argued that the application of the principle of indissolubility to converts would disturb the baptized Jews of Metz and Strasbourg who had married Catholics after their baptism. De Mauléon cited examples in Verdun, Metz, Strasbourg and Toul attesting to the practice of permitting remarriage of Jewish converts. In Metz both the Jewish community and the Bishop regarded the refusal of a summons by the wife of a converted Jew as a repudiation of the marriage that would permit Jewish wives to remarry. The most famous of these cases is the case of Salomon Lambert, a Jew, who remarried without divorcing his first wife after she refused his summons to convert. Ironically, there were also similar cases in Soissons.
In contrast, Levi’s detractors totally rejected the idea of tolerating customs that did not conform to Catholic practice, and neither did they accept that conversion meant a new fully assimilated identity. In support of their position they argued that all marriages were indissoluble regardless of race or faith. There were no exceptions to the rule, even for adultery. This prevented women from the possibility of having more than one husband, a practice that was “an abuse, a corruption and depraved.” It also prevented two formerly married converts from remarrying and establishing two new, but invalid, unions. Moreover, it prevented the frivolous use of baptism to dissolve marriages for two spouses who had grown tired of each other. In their view, Levi’s marriage remained valid at the moment of his baptism. His conversion neither freed him from a marriage contracted by Jewish law while he was a Jew, nor allowed him to rely on Jewish law to divorce. Baptism “purified sins but did not sever marriages,” and neither did it change one’s social identity from a Jewish alien to a French citizen.
On 2 January 1758 the parlement of Paris ruled against Levi’s request, stating definitively that it was “forbidden for Loyseau’s client to remarry during the lifetime of his first spouse.” The judgment had apparently failed to accomplish the goals of the advocates who defended Levi. However, it recognized the legitimacy of Jewish marriages and extended the protection of French law to Jewish wives. Implicitly, Jewish practices were recognized by French law when they did not conflict with French practices. Conversely, French courts would not legitimize practices that differed from the principles of French law, limiting the toleration of distinctive customs. Ironically, this process created an obstacle to the assimilation it was intended to promote by preventing Jewish converts to Catholicism from remarrying during the life of their recalcitrant spouses. Inclusion of this rule in the letters patentes of 1784, together with other regulations over Jewish personal status, weakened Jewish autonomy by reducing the ability of Jews to control the remarriage of the community’s members without providing an alternative. This left those who wished to leave the community rudderless. Paradoxically, while pursuing reforms intended to assimilate the Jews it had the opposite effect by enforcing exclusion of Jews who had converted from Catholic society regardless of religious allegiance. It created a category of converted Jews who could only exist on the legal fringes of society and whose social and legal identity was always in limbo. It also made it impossible to dissolve the barriers that had kept the Jews as a separate entity from the rest of French society. The problem of assimilation into French society would prove an enduring one. In the words of historian Michael Marrus, “The Jews of France were highly assimilated into French life and at the same time their assimilation was never complete and was a continuing problem.” By linking the reform of Jewish status to the indissolubility of marriage, Levi’s case had bridged the space between the private sphere of individual life and the public sphere in the reform and reordering of society. Yet, the same link also made it impossible for the Jew to shed his particularistism to become part of the public sphere. While Borach Levi was consigned to oblivion after the judgment of the parlement of Paris, the record of his legal battle would have enduring implications as much for what it did not resolve as for what it did.
For example, the case of the Marquesa d’Anglure and Target’s drafting of the Edict of 1787 in Geoffrey Adams, The Huguenots and French Opinion 1685-1787: The Enlightenment Debate on Toleration (Waterloo, Ontario: Wilfred Laurier University Press,1991), 287-90.
Sarah Hanley, “Family and State in Early Modern France: The marriage pact” in Connecting Spheres: Women in the Western World, 1500 to the Present, eds. Marilyn Boxer and Jean Quataert, (Oxford: Oxford University Press, 1987), 54-57; James Traer, Marriage and the Family in Eighteenth-Century France (Ithaca: Cornell University Press, 1980), 31-46; Maza, 265.
Plaidoyér pour M. l’Evesque de Soissons pair de France, intimé, contre Joseph-Jean-François Elie Levy, ci-devant Borach Levy, juif de nation, appellant comme d’abus (Paris: Imprimerie Pierre-Alexandre Le Prieur, 1758), 94.
Lettre de Mendel Cerf à Borach Levy, Actes et Pieces servant de Mémoire à consulter (pour le Juif Borach Levy, demandant à etre baptisé sous le nom de Joseph-Jean-François Levy [Levi], contre le curé de Saint-Sulplice (Paris: Imprimerie de Paulus-du-Mesnil, 1752), 16-17.
Ibid. This has been recognized by the civil powers starting with the ordinance of Francis I in 1539 and by the ordinance of Henry III in 1579, Louis XIII in 1629, Louis XIV in 1667, and by the declaration of the King in 1736.
Zosa Szajkowski, “Marriages, Mixed Marriages and Conversions among the French Jews during the Revolution of 1789” in The Jews and the French Revolutions of 1789, 1830, 1848 (New York: Ktav Publishing House, 1970), 827.
Ibid. Edel was originally the wife of Aron Levi, a Jew originally from Zillisheim in Alsace. She became involved with a Jew named Wolf Bacher originally from Prague. Edel and Wolf were both baptized in Strasbourg on 25 November 1747. On 28 February Edel addressed a summons to her husband to come and rejoin her in their conjugal life by converting to Christianity. Despite making this offer to her husband, Edel married Wolf Bacher on 14 August 1748 in the parish of Saint-Pierre-le-Jeune at Strasbourg. On 29 March 1749, an order of the sovereign council of Alsace declared that the marriage was valid and condemned Aron Levi to repay Edel her dowry. Other examples include: the case of an unnamed baptized Jew at Haguenau who, after his baptism in 1731, married a Christian when his Jewish wife refused to convert; the case of Edel Bernheim and Wolf Bacher of Colmar who married each other following conversion after leaving their Jewish spouses in 1749; and the case of Bernard Hirtz, also remarried in Strasbourg. Szajkowski, “Marriages, Mixed Marriages and Conversions,” 827.
The decree in Soissons, published in 1753, stated that, “que les mariages des infidèles sont légitimes; qu’un infidèle qui convertit peut et doit même demeurer avec sa femme qui persévère dans l’infidélité et qui consent d’habiter avec lui, et de même la femme avec son mari; mais si l’infidèle se sépare, le fidèle a droit de se séparer aussi... On permet même à un fidèle, ainsi abandonné par la partie infidèle de se remarier à un autre.” De Mauléon, ed., Plaidoyer, 71, 10, 73.