Ulrich Zasius and the Baptism of Jewish Children

Author(s): Steven W. Rowan

Source: The Sixteenth Century Journal, Vol. 6, No. 2 (Oct., 1975), pp. 3-25
Published by: The Sixteenth Century Journal
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Sixteenth Century Journal
VI, 2 (October 1975)

Ulrich Zasius and

the Baptism of Jewish Children
Steven W.Rowan*
Universityof Missouri-St.Louis

IN 1508 ULRICH ZASIUS published a treatise on the baptism of

Jewish children against the will of their parents which illustrates
the complex ties between late scholasticism and the humanist view
of society. This little-known work summarizes a long scholastic
debate on a subject which involved both the right of the Jewish
people to survive in Christendom and the power of the state to
control the spiritual education of the children of all parents what-
soever.
Although Ulrich Zasius was a man of considerable importance
in several disciplines, little can be learned of him in English-lan-
guage scholarship. His long friendship with Desiderius Erasmus of
Rotterdam and his ties with the humanist-scholar Boniface
Amerbach have been noted, but beyond that he is little known.'
His close association with Erasmus, together with his brief flirta-
tion with the reform movement of Martin Luther, sufficed to place
Zasius' name on the Indices of Forbidden Books soon after the
first publication of his complete works in 1550.2 This fact, com-
bined with the small number of copies printed of his writings in
his lifetime, has tended to make him a figure known to scholars
mostly by reputation.

*This article had its origin in a paper presented to the St. Louis Area Colloquium
on Late Medieval and Early Modern Studies on October 2, 1974. I have received valuable
help on questions of detail from several people. I would particularly like to thank Prof.
em. Dr. jur. Hans Thieme of Freiburg, Dr. Julian Plante of the Monastic Manuscript
Microfilm Library of St. John's University in Collegeville, Minnesota, Dr. Robert Kolb of
the Center for Reformation Research, Dr. James A. Brundage of the University of Wis-
consin-Milwaukee, and the Rev. Dr. Lowrie Daly SJ of St. Louis University. The incunab-
ula and manuscripts cited in what follows were drawn from the Center for Reformation
Research and the Knights of Columbus Vatican Film Library, save for those from the
Stadtarchiv Freiburg im Breisgau (=StA Freiburg).
'On Zasius and Erasmus, cf. the letters in P. S. Allen et al., Opus epistolarum Des.
Erasmi Roterodami, 11 vols. (Oxford: University Press, 190647), and references in the
standard biographies of Erasmus in English, e.g. Johan Huizinga, Erasmus (New York,
1924). On Zasius and Boniface Amerbach, cf. Myron Gilmore, "Boniface Amerbach,"
Humanists and Jurists (Cambridge, Mass.: Harvard University Press, 1963), pp. 146-177.
4 The Sixteenth Century Journal

He was born Huldreich Zisi in 1461 in Constance to a not-

able but impoverished burgher family, and he registered in 1481 at
the University of Tilbingen - rather later than would normally be
expected in those times. During the latter part of his stay at
Tfibingen the chief figure on the faculty was the great Nominalist
theologian and preacher, Gabriel Biel, whose works strongly influ-
enced him. By the late 1480s, he was working in the chancery of
the Bishop of Constance at Buchhorn, and he moved on from
there to be the Town Clerk (Stadtschreiber, chief professional ad-
ministrator in a town government), first at Baden im Aargau and
then at Freiburg im Breisgau. His service at Freiburg (1494-96)
marked the decisive transition of the chancery of that community
from a medieval scribal operation to a fully articulated bureaucra-
tic urban writing office. From 1496 to 1499 he served as the
Freiburg Schoolmaster, and only after this did he return to
academic life. At the University of Freiburg he studied both canon
and Roman law, though his doctorate was only in civil law. The
baptism treatise is, in fact, unique among Zasius' works because it
draws on the full range of disciplines available to late scholastics:
formal theology, ancient philosophy, canon and Roman law, along
with all of the scholarly traditions which they produced. From the
year of his doctorate in 1501 until 1506 he taught poetry and
then introductory Roman law at the University of Freiburg; in the
latter year he received the chair of civil law, a position which he
held until his death in 1535.3
Contemporaries regarded Zasius as an inspired teacher, ranking
him with Guillaume Bude and Andrea Alciato as an innovator in
the exposition of Roman law. He was a protagonist of the mos
gallicus, an approach to the corpus of Roman law which sought to

2Zasius was listed without qualification on the Index Librorum Prohibitorum of

Paul IV in January 1559, while the Spanish Inquisitorial Indices of 1559 and 1583
banned only his commentary on the Rhetoric of Cicero. He is not in the so-called Index
of Trent of Pius IV in 1564, but his Opera omnia were banned in the Indices of Sixtus V
(1590) and Clement VIII (1596) until such time as the volumes could be corrected. See
Heinrich Reusch, Die Indices Librorum Prohibitorum des sechszehnten Jahrhunderts
(Tiibingen, 1886; reprint, Nieuwkoop: de Graaf, 1961), pp. 204, 231, 430, 520, 577.
'The basic facts on Zasius' life can be derived from Roderich von Stintzing, Ulrich
Zasius (Basel, 1857); Erik Wolf, "Ulrich Zasius," Grosse Rechtsdenker der deutschen
Geistesgeschichte (fourth edition, Tibingen: Mohr, 1963); Guido Kisch, Zasius und
Reuchlin (Constance: Jan Thorbecke, 1961); Hans Winterberg, Die Schdler von Ulrich
Zasius (Stuttgart: Kohlhammer, 1961); brief summary in Folkmar Thiele, Die Freiburger
Stadtschreiber im Mittelalter (Freiburg: Wagner, 1973), pp. 125-127.
 UlrichZasiusand the Baptism of Jewish Children S

push aside the medieval commentaries (identified as the mos

italicus) and to apply the original texts of Roman legislation direct-
ly to contemporary problems. In obvious ways the mos gallicus
was the counterpart in jurisprudence of the new approach to the
Scriptures advocated by Erasmus. In both types of scholarship the
traditional elaborations were set aside in favor of a restored text,
which was then understood in a manner which often did as much
violence to its original context as had the medieval commentators.
In expounding the new method the likelihood was stressed that all
intervening authorities had probably misunderstood or ignored the
sources which had now been revived through the use of scientific
methods. The approach had an arrogance which jibed well with
what we know of Zasius' personality: touchy, self-assured, and
solidly rooted in the milieu of contemporary civil society.4
The new law and the new Scripture were part of the humanist
culture, and their practitioners fraternized easily. Zasius was a man
of advanced classical culture who communicated easily with
humanist circles throughout Germany, particularly with the
coteries residing in the Upper Rhine towns of Strasbourg, Selestat
and Basel. As Hans Thieme has phrased it, he was a humanist who
became a lawyer to make a living. Zasius was a master of German
prose as well as of a polished Latin style, though he stridently
opposed the use of German in the sacrosanct areas of scholarship
and academic jurisprudence.5
Zasius' first published work, Three Questions on the Bap-
tism of Jewish Children, is a remarkable production. Although it
arose from a specific incident in Freiburg in the fall of 1504, it is
4Cf. Guido Kisch, "Der Einfluss des Humanismus auf die Jurisprudenz," Studien
zur humanistischen Jurisprudenz (Berlin: W. de Gruyter, 1972), pp. 17-61; Kisch,
Humanismus und Jurisprudenz. Der Kampf zwischen mos italicus und mos gallicus an der
Universitdt Basel (Basel: Helbling & Lichtenhahn, 1955), esp. pp. 11-36; Kisch, Erasmus
und die Jurisprudenz seiner Zeit (Basel: Helbling & Lichtenhahn, 1960), pp. 317-343;
Hans Julius Wolff, Roman Law. An Historical Introduction, (Norman, Oklahoma: Univer-
sity of Oklahoma Press, 1951), pp. 211ff; Hans Thieme, "Les leqons de Zasius,"
"L'oeuvre juridique de Zasius," in Pedagogues et Juristes, ed. Pierre Mesnard (Paris: Vrin,
1963), pp. 31-47.
5Thieme, "L'oeuvre juridique de Zasius," p. 40; Zasius wrote several prose works
in German as town clerk in Freiburg, notably his Geschichtbuch der Stadt (StA Freiburg,
Bi: Nr. 2) and Untreubuch (B5: IlIc, Nr. 10). He wrote the German Freiburg Code of
1520, though it was published under the name of the town council. His only acknowl-
edged publications were in Latin. For his attacks on Thomas Murner for teaching law in
German, see Guido Kisch, Die Anfdnge der juristischen Fakultat der Universitdt Basel
1459-1529 (Basel: Helbling & Lichtenhahn, 1962), pp. 88-93, 297-298.
6 The Sixteenth Century Journal

both a work of considerable intrinsic interest and a key to regions

of intellectual and social history hitherto inadequately explored.
The facts of the case are these: a wealthy Jew who was a subject
of the Count Palatine of the Rhine had been captured during a war
between the count and the emperor. An agreement had been made
by the Jew with his captor to pay a ransom, and the Jew pledged
his son as a hostage for the fulfillment of the contract's terms. The
boy was to be returned unharmed after the ransom had been paid.
The child, who was evidently a bit over seven years of age, was
given over to the rector of the Freiburg Minster for safe keeping. At
once the boy was said to have requested baptism, and though one
may doubt that this was literally true, it placed the rector in a
difficult position. To refuse the baptism would have been in keep-
ing with the ordinary practice of the church, since the boy was
under the age of consent and hence required the agency of parents
to undergo baptism. Since the Freiburg rectorate was under the
control of the University of Freiburg, academics were involved in
the discussion from the onset, and it escalated into a general de-
bate on the law of baptism as it applied to Jews.
Both the Jewish father and the capturing soldier made frantic
efforts to gain the child's release: the father to save his son from
apostasy, and the soldier to save his ransom contract. The town
council also debated the question, and since the baptism involved
political risk on the part of the council, the extraordinary step of
polling the guilds was taken. Only after the solid support of the
guilds was assured did the council order on October 2, 1504, that
the rite be performed. The town government was apparently rely-
ing on its general responsibility for the well-being of children, thus
defining itself as a corporate "prince" in the political jargon of the
time.6

6 The treatise is De Iudaeis Quaestiones tres in Udalrici Zasii Opera omnia (Lyons,
1550), 5, 328-354; the incident is at pp. 329-330 (text henceforth De Iud.). There was a
further edition of Zasius' Opera omnia in Frankfurt am Main in 1590, and the treatise
was also inserted in his Singularia responsa (Basel, 1541) and Responsorum iuris civilis
libri ii (Lyons, 1548). For the actions of the council, see StA Freiburg, B5: XIIIa; Nr. 9,
17v (September 18, 1504), 19v (September 23), 24r (October 2). Although the account
given by Zasius makes no explicit mention of the actions of the council, the whole
argument of the treatise requires that the civil authorities act to have the child baptized.
The protocol of the council on 2 October reads, "Dem Kilchherrn dess Juden zu sagen
den er touffen solt beuilht man Im zu' thin. . ." (underlined in the original).
 UlrichZasius and the Baptism of Jewish Children 7

Rather little is known of the academic debate which led up to

the baptism, though the wealth of authorities on both sides cited
by Zasius suggests it was a very thorough one. The theses of Dr.
George Northofer, a theologian at the university, were appended to
Zasius' treatise,7 though it is unlikely Zasius agreed with all of
them. The discussion did not take place in a vacuum: Freiburg was
a community with a long tradition of special hostility to Jews. As
town clerk, Zasius had read through an archive which contained
one of the richest lodes of Jewish atrocity documents found in any
one place, reaching from the holocaust of the Jewish community
of Freiburg in 1349 on a charge of poisoning to accusations of
ritual murder in his own day. In 1424 Freiburg had obtained an
imperial charter to exclude Jews forever, and in the 1490s this
exclusion grew into a radical ban on all contact with Jews by
residents on pain of fines or even expulsion.8
The consideration of the matter was further complicated by
the fact that the town was already in an uproar over charges of
ritual murder against a group of Jews from nearby Waldkirch. The
Jews had been jailed in Freiburg, and their interrogation under
torture had produced deaths but, to the chagrin of the town coun-
cil, no confessions. The town council launched a major campaign
to force the expulsion of all Jews from the Breisgau, but it col-
lapsed due to lack of proof. Eventually the prisoners had to be
released under an imperial order, which was obeyed with very bad
grace.9
Zasius claims that he had at first doubted the legal case for
baptism, but that on further examination he changed his mind. By
the fall of 1505 a draft of the treatise was in circulation.'0 It is
conceivable that it was part of Zasius' campaign in those anxious
months to succeed Paulus de Cittadinis as professor of civil law.
7De Mud., col. 343.
8 Examples of the atrocity literature can be seen in Heinrich Schreiber, Urkunden
Buch der Stadt Freiburg im Breisgau (Freiburg, 1828-29), 1, 378-383, and 2, 520-525; on
the history of Jews in Freiburg, see Adolf Lewin, Juden in Freiburg im Breisgau (Trier,
1890), Berent Schwinekoper and Franz Laubenberger, "Geschichte und Schicksal der
Freiburger Juden," Einwohnerbuch der Stadt Freiburg (Freiburg, 1963), pp. 23-27.
9StA Freiburg, B5: XIIIa, Nr. 9, 4v (July 3, 1504) ff., and B5: XI, Nr. 7, 1, Bl.
168 (after April 10, 1504) ff; B5: XI, Nr. 7, 2, Bl. lv, July 20, 1504; Cl: Judensachen 1,
Nr. 1, July 27, 1504; the council ordered extra torture for the captive Jews when they
refused to agree to the bill of particulars: B5: XIIIa, Nr. 9, 4v.
' 'De Iud., col 353, gives a letter by Dr. Hieronymus Vurm, Patronus Causarum of
the episcopal court at Constance, dated September 18, 1505, which mentions the treatise.
8 The Sixteenth Century Journal

Zasius had close ties to the town government of Freiburg, due to

his long service as clerk, schoolmaster and legal advisor, and he was
always popular with his students, but the faculty of the university
contained many enemies. As a result, until 1506 he was in the
uncomfortable position of a rather old junior instructor trying to
buck the opposition of colleagues to win a permanent place on the
staff. Not until 1508 did he see fit to publish a small edition of
the book in Strasbourg. It did have an impressive send-off in the
form of a warm forward by the humanist Jacob Wimpheling, who
mentioned the support of the famed preacher Geiler von Kaisers-
berg, together with endorsements by several academics and admin-
istrators. Typically, Zasius appears to have aimed his presentation
at a small if select audience of fellow scholars.
Because of the specific facts of the case, the treatise dealt
with three distinct points of accepted practice which had been
consciously infringed: 1) the child had been baptized against the
express will of his father, 2) the child had supposedly made a
profession of faith on his own despite the fact that he was under
the age of puberty, and 3) the explicit terms of a ransom agree-
ment had been violated. Although I will deal here only with the
first question, which was thought the most controversial at the
time, the other two questions were also to have profound implica-
tions. The tactic of extending religious emancipation from infidel
parents to any child over seven was later to be a tool of the
government of Louis XIV against the Huguenots,1 1 and Zasius was
to become embroiled in the next decade in a dispute with his
former student, John Eck, over the proposition that a private
agreement with a public enemy in time of war was not binding.' 2
It will be seen here that the first part of the treatise is both a
summary of a long scholastic debate on whether Jews had intrinsic
rights, and a dramatic example of the humanist critique of
medieval social compromises.
Baptism is the necessary and irreversible rite of entry into the
community of the Christian faith. As such, it has both a spiritual
and a judicial dimension: it is both a necessary part of the process

l 'Cf. Maurice Ashley, Louis XIV and the Greatness of France (New York: Free
Press, 1965), p. 91.
2Apologetica defensio contra Ioannem Eckium ... Quo loco fides non esset hosti
servanda of 1519, in Zasius, Opera omnia vol. 5 (Lyons, 1550), cols. 354-379.
 UlrichZasius and the Baptism of Jewish Children 9

of salvation and it makes one a member of the church with all its
binding duties. In the early church the rite of baptism was under-
gone by adults after extensive catechetical and ritual preparation.
An adult had to desire baptism and be capable of pledging himself
to believe the creed and to act in every other way as a Christian.
The practice of child baptism, which was introduced in the era
when the church was moving from being a persecuted sect to an
all-embracing religion of state, meant that the previous require-
ments had to be altered. The parents were thought to operate in
the stead of the children in the promises and pledges, and until the
time of confirmation their faith sufficed for the child. Along with
the spiritual fortification of the individual, baptism qualified one
to be a full member of the secular society of Christendom. Once
validly baptized, under whatever conditions, one was compelled to
be a member of the Christian community until death or departure
from Christendom. To do otherwise would hold the rite up to
blasphemy and contempt.'3
By the time of the fourth council of Toledo in 633, the
canon law on the religious autonomy of Jews had reached its
classic form. Jews were not to be forced to the faith unless they
were already somehow subject to the church through valid bap-
tism.'" Adults had to consent freely to their own baptism for the
rite to be valid, but this could be interpreted in such a way as to
permit any sort of coercion short of overpowering physical force at
the font. Since the baptism of persons below the age of puberty
normally required the agency of parents, the baptism of Jewish
children was effectively banned. In the twelfth century there was
an alteration in the doctrine of baptism which permitted the off-
spring of heretics to be baptized "in the faith of the church,"
without parental agency, but the decree of Toledo IV continued to
be quoted. The canons of Toledo IV were used no fewer than
forty times by Master Gratian in the Decretum, compiled about
1140.1' As the subsequent treatment will show, the debate pro-
ceeded on the basis of a limited number of texts, particularly
1 3Stanley Chodorow, Christian Political Theory and Church Politics in the Mid-
Twelfth Century: The Ecclesiology of Gratian's Decretum (Berkeley: U. of California
Press, 1972), p. 86.
4Toledo IV (633), in J. D. Mansi, Sacrorum conciliorum nova et amplissima
collectio (1758-1798), vol. 10, cols, 611-650, esp. cols. 633-635, 648.
l ' E. Friedberg, Corpus iuris canonici, vol. 1 (Leipzig, 1879), xxi-xxii.
10 The Sixteenth Century Journal

commenting on four texts of the corpus of canon law.' 6

Zasius wrote his treatise to explore various aspects of a con-
crete legal case, but this case involved much broader areas than did
the consultations of Roman law in which he was most at home. He
organized his material into the classic framework of scholastic argu-
ment, the question (quaestio), although the language and much of
the material used were novel for scholastic works. The breezy con-
tempt for established doctors of the church, the hostility to cus-
tom, the readiness to poke fun at the language of the papal
chancery - all these indicate the altered context of scholastic argu-
ment in the first decade of the sixteenth century.
He commenced his discussion of the thesis that Jewish chil-
dren could indeed be baptized, parents unwilling, by marshalling
the arguments used by St. Thomas Aquinas and others in nine
major points against forced baptism, to which he added a tenth of
his own from Roman law. They may be summarized:
1) If Jews could be robbed of their children, this would be a mark of
the most extreme servitude, but though Jews were slaves of the
Christian princes, they were not slaves in antiquity since they could
contract valid marriagesand hold property in their own right.
2) The tie between a father and his child is sanctioned by naturallaw.
God has even made the honoring of the parents part of the Decalogue,
hence inviolable.
3) The prince does not have a greaterpower over the children than the
parents since the parents are said to live in their children.
4) Such an act as forced baptism has never been mentioned by the
Fathers, and if it had been licit some mention surely would have been
made. Some authority such as Silvester or Ambrose would have sug-
gested it to Constantineor Theodosius.
5) The praetor, as agent of the state, has no power to take over the
role of parents in the act of baptism since the operation of free will is
required in the ceremony, and this free will has to be exercised either
by the person baptized or his parents.
6) If children were forcefully baptized and then returned to their
parents, the children would either be pervertedaway from the Christian
faith through a Jewish upbringingor they would be killed.
" The texts in canon law were: Qui syncera in the Decretum, Dist. 45, c. 3
(Friedberg, vol. 1, 160-161), from a letter of Gregory 1 (590-604); Iudaeorum, also in the
Decretum, C. 28, Q. 1, c. 11 (Friedberg, vol. 1, 1087), from Toledo IV (633), canon 60;
Sicut Iudaei from the Decretals of Gregory IX, 5.6.9 (Friedberg, vol. 2, 774), attributed
to Clement III (1187-1191) and Innocent III (1198-1216), but actually from Alexander
III (1159-1181); Cedit quidem from the Clementine Decretals, 5.2.un. (Friedberg, vol. 2,
1180-1181), decree of Clement V at the Council of Vienne (1311-12).
 UlrichZasius and the Baptism of Jewish Children11

7) Childrenare the property of the parents, just as are cattle or other

brute beasts. To take the children away would be theft and against
naturaljustice.
8) The law pronounced at Toledo IV which says that Jews are not to
be forced to the faith means all Jews, whatevertheir age.
9) In Isaiah as well as in the synoptic gospels it is said that the Seed of
Israel (semen Israel) should not die out. To baptize all Jewish children
would end the Jewish people in a generation.17
10) The strongest of natural ties recognized in Roman law is paternal
piety (paterna pietas), and forced baptism would certainly violate this
tie.
This battery of arguments was collected by Zasius from a
formidable group of authorities. The first of these, St. Thomas
Aquinas OP (died 1274), is damned by Zasius with facetious
praise: he calls his followers a "heresy," which he proceeds to
explain away as the ancient name for a "following" after the
shocking word has been said.' 8 Zasius appears to have used only
one of the two possible sets of arguments found in the Summa
theologica. 19 Others who were cited by Zasius included the
authors of the ordinary gloss to the Decretum, John Zemeke,
known as Teutonicus (died 1245/6) and Bartholomew of Brescia
(died 1258);2o Richard of Middleton OFM (died 1300);2 1
Durandus of St.-Pourqain OP (died 1332);2 2 Peter of la Palu OP
(died 1342);2 3 John Calderini (died 1365);2 4 Francis Cardinal

'7 Isaiah 10 and the whole latter half of Isaiah ("Deutero-Isaiah") can be taken as
dealing with the fate of the Semen Israel, especially 45:26 and 48:17-19. The "genera-
tion" passages which had traditionally been applied to the Jews were Matthew 24:34,
Mark 13:30 and Luke 21:32.
"8De fud., col. 332.
1 9Zasius repeatedly cites Summa theologica, 2-2, q. 10, a. 12, but he seems not to
have used 3, q. 68, a. 10, which differs in its stress.
2 0Cf. Decretum Gratiani ... una cum glossis (Venice, 1591), vol. 2, p. 1446.
21 Richardus de Media Villa, cited by Zasius as IV. Sent., dist. 6, art. 3, q. 3. The

treatment of the matter is actually found at IV. Sent., dist. 6, art. 3, q. 2 in Richardus
de Media Villa super quarto sententiarum (Venice: Bonetus Locatellus, 1499), 36r. Cf.
EtienneGilson, History of ChristianPhilosophy in the MiddleAges (New York: Random
House, 1955), pp. 695-696.
22Durandus of St.-Pourgain was known to Zasius only through a citation by
Gabriel Biel in IV. Sent., dist. 4, q. 2, dub. 5, in Epithoma pariter et collectorium circa
quattuor sententiarum libros, ed. Wendelin Steinbach (TUbingen, 1501).
2 3Peter, like Durandus, was known to Zasius only through a citation in Biel as in
n. 22. Cf. Dictionnairedu Droit canonique,(=DDC)6, 1481-1484.
24Giovanni Calderini (died 1365) wrote a Consilia, which was continued by his
son Gaspare (died 1399). The citations can be found in Cod. Vat. lat. 2539, f. 245v and
Cod. Vat. lat. 2651, f. 321 r-v.
12 The Sixteenth Century Journal

Zabarella, known as Cardinalis (died 1417);25 John Gerson (died

1429);2 6 Nicholas de Tudeschis OSB, archbishop of Palermo,
known as Panormitanus (died 1445);2 7 St. Antonino OP, arch-
bishop of Florence (died 1459);2 8 John of Anagni (died 1457);2 9
Felinus Sandaeus (died 1503); and John Antonius of S.
Gregorio, known as Praepositus or Alexandrinus (died 1509)," 1
besides some unnamed colleagues of Zasius at Freiburg.
In the face of these staggering array of authorities, Zasius
sallied with his own arguments, derived from a very different tradi-
tion:
1)The dissolutionof a marriageis permittedif one memberis an
infidel, and the bond of marriageis said in Scriptureto be greaterthan
that of the paternalpower. Hence the paternalpower can be dissolved if
it is an impediment to the faith.
2) All must work for the salvation of others. It was objected that a
Christian could not intervene to stop the execution of a condemned
criminal, but Zasius countered that the only sin of a child is that of
original sin - unlike the convict, who has transgressedthe positive law.
3) The universalfatherhood of God, which overridesthat of the earthly
father, is not operativeonly through the mediation of the earthly father.
4) A prince has an over-ridingresponsibility to care for the well-being
of his people, and that includes children.
5) The Roman law establishesthat one may deny one's own father and
mother on grounds of personal injury or the destruction of bequest
which is being held in trust for the child. By denying baptism to a child,

2 5 Zasius placed Zabarella among the Thomists for his commentary on Sicut Iudaei

(Cod. Vat. lat. 2258, f. 91v-92r), but he argued that Zabarella inclined to his own views
in a comment on Iudaeorum. Zasius appears to me to be speaking of Zabarella's com-
mentary on Cedit quidem (Cod. Vat. lat. 2259, f. 299r).
26 reference is to Regulae morales (c. 111 de baptismo), thought by some not
to be a genuine work of Jean le Charlier de Gerson, but traditionally included in his
works: Joannis Gersonii. . . opera omnia, ed. M. L. Ellies du Pin (Antwerp, 1706), vol. 5,
cols. 98-99.
2 7Commentary on Sicut Iudaei (Cod. Vat. lat. 2558, f. 92r); cf. DDC 6,
1195-1215.
2 8 Zasius gives the wrong citation in his discussion of St. Antonino's Summa
theologica, pars 2, tit. 12, c. 4: SanctiAntonini archiepiscopiFlorentiniordinispraedica-
torum Summa theologica. .. (Verona, 1740; reprint Graz, 1959), 2, cols. 1149-1151.
290n Joannes de Anania, see DDC, 6, 88-89. His commentary on Sicut Iudaei
would be in his Commentarius super V libros Decretalium (Lyons, 1553>.
30Zasius refers to Felinus in a commentary on Sicut Iudaei, which must be from
his Concordantia juris civilis et canonici, which has never been published. See DDC 5,
827-828.
31On Joannes Antonius de Sancto Gregorio cf. DDC 6, 91. His commentary on
Qui syncera is found in his Commentariasuper decretorum volumina, printed thrice
before 1505.
 UlrichZasius and the Baptism of Jewish Children13

the Jewish father robs him of Christ's most blessed testament, eternal
life. A praetor can intervene on behalf of the prince when a child is
abused or his property damagedby a parent who is malevolent or mad.
By willfully cutting themselves off from the wholeness which is the
Church, Jews are by definition bad (turpis) since Gregory I defined as
turpis any part which does not harmonizewith the whole.
6) Jews are surely slaves, attested in canon law, due to their crime of
deicide, and in the law of the state, due to the conquest of Jerusalem
by Titus in 70 A.D. It is always a good work to liberate slaves, but this
comes for Jews only through conversion,especially as children.
7) A child forced to sin by a parent can be emancipated, and this is
doubly true in the question of salvation.
8) Jewish fathers certainly had no more power in their children than
Christianfathers did in theirs, and yet a Christianchild can be baptized
without the assent of his father if the parent had neglected to have the
rite performed.
9) God must receive back his own, and to deny him souls is to defraud
him. Thus princes have the power to prevent this act of fraud.
10) The duty to help one's neighborextends also to Jews, and assistance
to the true faith is the greatest possible act of brotherly love.
11) The community rests upon a unity of faith, as the civil law declares,
and this unity is the foundation of justice.
12) To deny a child baptism is to condemn him to certain perdition,
and a father who denies that is no father but rather a willful defier of
God's will.
The scholars lined up by Zasius on his own side were fewer
than the opposing Thomists. They included Stephen Bonnier of
Provence (died 1298);32 John Duns Scotus OFM (died 1308);3
Guy of Baysio, known as Archdiaconus (died 1313);3 4 Peter

32 Stephanus Bonerius or Provincialis wrote Quaestiones which were used by John

Andreae in his commentaries on the Decretals and by John of Imola and Zabarella in
their commentaries on the Clementines. There was a dispute between J. F. von Schulte
and Paul Fournier whether there were two canonists of this name, but Fournier's position
that there was only one has prevailed. See DDC 5, 486-7.
33The text is from the Opus Oxoniense, and is found in the Wadding-Vives edition
of the Opera omnia (Paris, 1891-95), vol. 16, 487497: IV. Sent., d. 4, q. 9. All previous
editions of Scotus will be rendered obsolete by the new Vatican edition, which began
appearingin 1950. See Bibliotheque de la Revue d'histoire ecclksiastique,fasc. 1: Les
Commentairesde Jean Duns Scot sur les quatre livresdes Sentences (Louvain,1927) and
ltienne Gilson, Jean Duns Scot. Introductiona ses positions fondamentales(Paris:Vrin,
1952).
3 4The text is his commentary on Qui syncera, found in Cod. Pal. lat. 626, f. 28v,
Cod. Pal. lat. 625, l. 29r-v. See Gabriel Le Bras et al., LAge classique, 1140-1378.
Sources et theorie du droit, vol. 7 of Histoire du Droit et des Institutionsde l'eglise en
Occident (Paris: Sirey, 1965), pp. 326-7.
14 The Sixteenth Century Journal

Aureoli OFM (died 1322);3 5 John Andreae (died 1348);3 6

Landolph Caracciolo (died 1351);37 John Nicoletti of Imola (died
1436);3 8 Alphonse Lopez de Spina OFM (died 1491);3 9 Angelo
Carlatti of Clavisio (died circa 1495);40 Gabriel Biel (died
1495);4 1 and Zasius' colleague George Northofer (died 1509).42
Of these, Scotus and Biel were clearly the most important. The
most telling arguments of Scotus against the traditional idea of the
rights of Jews were preserved and amplified by the "harvester"
Biel.4 '3 Having made these points, Zasius then disposed of the
original objections:
1) Jews are slaves, and they are allowed to hold their goods only due
to the piety of Christians:hence it is not true property (proprietas)but
slave-goods (peculium). In Germany slaves and semi-free persons have
limited property-rights,and canon law permits them marriage,so the use
of these tests does not disproveslavery.
2) A parent has the right to educate a child, but not if that education
is pernicious. It is better to separate a father and his son than to allow
the son to die.
3) To baptize a child is not to force him to the faith since a child has
no capacity for free consent anyway. Hence to baptize a child is not to
compel him.
4) The church faces an ever-changingworld, with new problems, and
the church has every right to alter its medicines for new ills. Also, the
" Aureolus was known to Zasius only through Angelo of Clavisio, n. 40 below,
and the reference is obviously to Peter Aureoli OFM. See Gilson, History of Christian
Philosophy, pp. 477, 777.
3Commentary on Sicut Iudaei in Ioannis Andreae L C. Bononiensis ... Com-
mentaria, ed. Petrus Vendrameenus (Venice: Franciscus Franciscium, 1581; reprint 1963),
4, 41-2.
3 7Landulphus was known to Zasius only through Angelo of Clavisio n. 40 below.
He was an author of a commentary on the Sentences and a follower of Scotus. See
Gilson,History of ChristianPhilosophy,p. 468.
38His commentary on the canon Cedit quidem, Cod. Vat. lat. 2279, f. 189v. Cf.
DDC 6, 107-110.
39 wrote a Fortalitiumfidei or Fortalitiumcontra Iudaeos, Sarracenoset alios
christianae fidei inimicos (without place, 1487), and Zasius speaks of him simply as
"auctor Fortalitii fidei," with the place reference "in ii. lib. de consideratione xij. puncto
iiij." See C. G. JMcher,Allgemeines Gelehrten-Lexikon (Leipzig. 1750), 4, 739.
40Angelus Carletus (Carletti, Carlatti) of Clavisio was the author of a Summa
angelica de casibus conscientiae (Venice, 1492), and Zasius cites "in ver. baptismus. iiij.
q. xj." See JMcher, 1, 1676.
41 Biel, spoken of by Zasius as "Solennis [sic] Doctor," dealt with the matter in the
citation in n. 22 above. See Heiko Augustinus Oberman, The Harvest of Medieval
Theology. GabrielBiel and Late MedievalNominalism(Cambridge,Mass.:Harvard,1963).
4 2See De Iud., cols. 343, 350-352. He was murdered in 1509 while still serving as
a regent professor of theology at Freiburg.
43See n. 41 above.
 UlrichZasius and the Baptism of Jewish Children15

transfer of children is licit in Christianmistreatment cases, so why not

Jewish?
5) The act of representingthe child in the baptism rite need not be
performed by the parents, as writings of both Augustine and GregoryI
attest.
6) The argument that Jewish childrenwould be killed by the parents is
answeredby assertingthat the prince must take care to prevent it. But
if it does occur, it is not a matter of great concern since the child then
dies a martyr of the faith and is destined for heavenly bliss, a goal vastly
preferableto the damnation which was his before, and bodily death is a
small price for salvation.
7) Children are not irrationalin the same way as brute beasts. To say
so is to be led astray by what is simply a legal fiction. Childrencannot
be seen as property, but as a trust.
8) Since compulsion cannot be exercised on those who have no reason
of their own, the equation between children and adults collapses, and
the ban of Toledo IV on forced baptism does not apply.
9) The Seed of Israel will not perish even if all the Jews are converted
since Christ came not to destroy the Jews but to save them. The "seed
of nature" (semen naturae) will persist even after they adopt the true
faith. When Jesus said, "This generationwill not pass away," he did not
mean the Jews but ratherthe congregationof the faith.44
10) The paternal power protected by Roman law falls in the face of the
superiorlaw of God.
Midway in his treatment of affirmative arguments, Zasius in-
serted an "Excursus of Invective against the Jews" (Nota parergon
invectivum contra Iudaeos) in which he let go with his feelings
about Jews and their continued residence in Christendom. Al-
though it is extrinsic to the structure of his argument, it provides
insight into the justification for the legal edifice he had erected
with such labor. Jews, Zasius declared, did not live in Christendom
by right: they were there by Christian grace, which was conditional
on their good conduct, including the payment of taxes and peace-
ful humble labor. A pope had once contrasted the hostile Saracens
with the peaceful Jews.4 5 Zasius replied by saying:

44Zasius noted that the gloss of Nicholas of Lyra (died 1340) gives "congregatio
fidelium" for the "generatio," though the ordinary gloss held it to mean the Jewish
people. See glosses Matthew 24:34 in Biblia cum glossa (Basel: Langendorf and Froben,
1498), vol. 6.
4'De Iud., col. 336. The text is found in the canon Dispar, D.,C. 23 Q. 8 c.11
(Friedberg, vol. 1, 955), from Alexander II (1061-1073), found in Jean-Paul Migne,
Patrologia latina, 146, 1386-1387. See Edward Synan, The Popes and the Jews in the
Middle Ages (New York: Macmillan, 1965), pp. 69, 218-219 in the paperback edition.
16 The Sixteenth Century Journal

But today we see that everythinghas been turnedinto its op-

posite, and the Jewsaremost ungratefulto Christians,whomthey curse
daily with publiccursesand publicexecrations,they despoilwith their
usuries,they deny their serviledues, they derideour most immaculate
faith and proceedto defile it with the blackestblasphemiesagainstour
Savior, even in public. And, what is cruelest of all, they lust for
Christianblood, whichthose most cruelbloodsuckersseek by day and
night, and whichhas once againoccurredin our own day in thesevery
lands (of which we cannot speak without the throbbingof our
hearts).. .46

Zasius argued here as well that there would be no need to fear the
death of the Seed of Israel. Even if it were cleared from Christen-
dom, enough would survive among the infidel Muslims to fulfill the
divine mandates. Here at least Zasius is gentler than Scotus, who
held that the preservation of the Seed on a single distant island
would be enough.
Although Zasius refers to hundreds of texts in his treatise,
many are simply linguistic notes, such as documentation for gra-
tuitous attacks on the barbarities of the wording of papal
decretals.4' The core of what remains after this humanist veneer
has been stripped away consists of a few texts of canon law with
their commentaries, a few articles from theological summae, com-
mentaries on Lombard's Sentences, and the Corpus Juris Civilis of
Justinian, particularly the Digest. Scripture plays a very small role
in the argument, except where passages had been cited by
Thomas.48
The listing of opposing authorities reflects an arduous search
of the available literature. Although he knew several of his sources
only through their citation in other works, the hundreds of sources
drawn on reflect broad and intense reading in the whole range of
scholastic as well as classic literature. Francis Suarez (died 1617),
who had the advantage of an added century of printed editions,
could only cite two treatments of the subject predating Zasius

4"De Iud., col. 336.

"E.g. De Iud., col, 332 n. r: Nam puritatem linguae latinae in pontificii iuris tex.
quaerere non debemus.
48Other than the passages on the Seed of Israel and the "generation" which will
not pass away (cf. notes 17 and 44 above), use is made of Matthew 19:3-9; 1. Cor-
inthians 7:12-16; Ezechiel 33:6, but most of the citations are more in the nature of
decoration than of substantive contributions.
 UlrichZasius and the Baptism of Jewish Children17

which had not been included in the treatise: these were the com-
mentaries on the Sentences by Marsilius of Inghen (died 1396)
and John Capreolus OP (died 1444).49
The discussion which Zasius summarized had already been an
important question in scholastic debate at least since the mid-
twelfth century. By the time Zasius wrote, he was able to look
back on a literature of considerable size. The chief supporters of
the notion that Jewish fathers had full rights of control over the
baptism of their children were Dominicans, and the major critics
were Franciscans and lay professors in the Nominalist tradition.
This division was, however, not strict: Richard of Middleton, for
example, was a Franciscan who favored the Thomistic arguments.
The earliest text in the debate was the ordinary gloss of the
Decretum on the canon Iudaeorum.50 This put forth the simple
proposition that children of Jews were no more to be forced to
baptism than were their parents since soon there would be no Jews
at all. In such a case, there would be no way for the remnant of
Israel to be saved in the last days of the world. On the other hand,
if children were by chance baptized, they would of course have to
be raised apart from their parents in monasteries or in the homes
of Christian women, lest they be corrupted by the faith of their
parents. This rather naive and vague summary reflects the state of
the discussion in the early thirteenth century.
By the time of the work of St. Thomas Aquinas on the
Summa theologica the terms of the discussion had been greatly
clarified. It had become a question of the natural-law right of
parenthood, and the extent to which these rights could be abridged
by Christian public authority. Jews were thought to be slaves
(servi) of the Christian princes, but Thomas thought that this servi-
tude was distinct from that of ordinary slaves who could be
bought and sold: they were subject to a civil servitude which made
them non-citizens, but they were in full possession of such rights
as they received from divine or natural law. But the chief argument
49Cf. Franciscus Suirez SJ, Commentariaac Disputationes in tertiam partem
D. Thomaede Sacramentisin genere, Operaomnia 20 (Paris,1866), 428-446.
?0 In the discussion which follows, the citations of authorities used by Zasius given
in notes 19-42 above apply. Two theses have appeared recently on the subject of Jewish
status in the canons: Francis Richard Czerwinski, The Teachings of Twelfth-Century and
Thirteenth-Century Canonists about the Jews (Ph. D. thesis, Cornell University, 1972);
WalterJay Pakter,De His Qui Foris Sunt: The Teachingsof the MedievalCanonand Civil
Lawyers Concerning the Jews (Ph. D. thesis, Johns Hopkins University, 1974).
18 The Sixteenth Century Journal

of Thomas is that giving injury was to be avoided, and that forced

baptism of children and deprivation of parental rights was indeed
an injury. Thomas then proceeded to make a case against the pro-
posed practice on the grounds that it was not the custom of the
church. If such actions had been licit, someone of authority would
have pressed it on Christian princes in earlier times: Pope Silvester
would have recommended it to Constantine, or Ambrose to Theo-
dosius.
The formulations of Thomas dominated all subsequent discus-
sion, both positive and negative. An opening, however, had been
made for attack by placing so much stress on the custom of the
church as a criterion for determining whether an injury had taken
place or not. Those who would reconstruct the legal order afresh
would naturally seize on this point.
The Questions of Stephen Bonnier were quoted by John
Andreae in the context of Sicut Iudaei, and by John of Imola and
Francis Zabarella in the context of Cedit quidem. Stephen argued
that Jewish servitude was grounded in the condemnation of Ham
in Genesis 9, where it is declared that he and his progeny should
serve his brothers. This was taken by Stephen to apply both to the
Jews and the Saracens. If this had been taken literally, then the
Arabs and the Jews would have been seen not as Semites but
Hamites, an eccentric anthropology. The children of the Jews were
thought by Stephen to be capable of being bought and sold, and
once out of the parental household they could then be baptized,
since the Institutes of Justinian had recognized no true paternal
power for slaves. It is significant that Zasius tacitly dropped the
Ham argument, though he had encountered it in three texts he is
known to have read. Perhaps its lack of support in tradition, or its
racist tinge, bothered a man who strongly asserted the curative
powers of baptism for all Jewish debilities.
Richard of Middleton generally followed the lead of Thomas,
but his very defense showed the vulnerability of the argument
from the custom of the church. Richard conceded that the argu-
ment on the basis of slavery was convincing, save only that it was
not the custom of the Church: if the custom were such, it would
be proper to raise such children as wards of the church, thus
dedicating them to a higher lord.
The strongest counter to the Thomistic position, and one
 UlrichZasius and the Baptism of Jewish Children19
which was cited along with Thomas for centuries, was made by
John Duns Scotus in his Oxford Commentary on the Sentences.
Here slavery was not mentioned, save metaphorically as a means of
showing that the lowest member of a hierarchy was bound to obey
his master's superior. Scotus argued simply that the right of God
overrode all subordinate rights, and hence that all Christian princes
were obligated to baptize children who were in danger of being
educated against the proper cult of God, and that they were then
to see that they were raised to the rightful worship. The prince
was advised to move quickly lest the children be harmed before
the deed was done. But Scotus did not stop there: he went on to
advocate the baptism of all Jews, adults as well as children, and to
advocate the use of the coercive powers of the state ("with warn-
ings and terrors") to force the converts to observe the Christian
cult. Scotus held that it was less harm to make them half-
Christians than to permit them to observe their law with impunity.
Their children, even if only in the third or fourth generation,
would eventually come to be truly faithful. The objection to this
policy on the grounds that the Jews were to be preserved for the
last days were countered by Scotus with the argument that only a
few would actually convert even at the end of time. This was thus
no grounds for preserving so many Jews in all parts of the world.
It would be sufficient to quarantine a few on a distant island for
the prophecy to be fulfilled. Certainly Toledo IV, the source for
the anti-force argument, had praised the zeal of a pious Visigothic
king who had forced Jews into Christianity.- 1 The elimination of
the Jews of Europe was thus mandated by Scotus without a men-
tion of the doctrine of slavery: any special status resulting from
servitude was subsumed by an oversight which included all persons,
Christians and infidels.
John Andreae, one of the chief canonists of the fourteenth
century, countered the Thomistic position - represented for him
by Henry of Suza, cardinal-bishop of Ostia, called Hostiensis (died
1271) - by using the slavery argument in combination with the
texts in the Institutes of Justinian on the paternal power. Later
canonists tended to pursue this question largely in terms of the
slavery issue, and the doctrine of the preservation of a Jewish

"1Toledo IV, canon 65, Mansi, vol. 10, col. 635.

20 The Sixteenth Century Journal

remnant was tested in terms of the question of whether it pro-

tected all Jews. Canonists avoided the argument for mass forced
baptism given by Scotus, and the matter at hand became whether
the ban of Toledo IV on forced baptism applied to adults only or
to all Jews generally, including children. Zabarella, and Panormit-
anus after him, drew Thomas into the canonistic discussion at this
point, arguing that the ban on force dealt with Jews without dis-
tinction. Gerson noted tersely that the baptism of Jewish children
was not the custom of the church, but that they were true
baptisms if performed, and that such children had best not be
returned to their parents. St. Antonino simply explicated Thomas
with little original elaboration.
The most detailed counter-blast to the majority of the
Thomists was the commentary on the Sentences by the chief
Nominalist of the later fifteenth century, Gabriel Biel. Biel held
that the question of compulsory baptism for children and that of
compulsory baptism for adults could be handled together. Biel or-
chestrated commentaries on Sentences IV by Durandus of St.-Pour-
qain, Peter of la Palu and Richard of Middleton and set them off
against Scotus. He gave special stress to the Thomistic argument on
the restrictive nature of the custom of the church, and he quoted
at length of Richard's quibble on the matter. Power was seen by
Scotus and Biel as vested in a hierarchical sequence of authorities,
with the curator overshadowed by the proconsul, the proconsul by
the emperor, and the emperor by God. Those ruled by the lower
member on the hierarchy had a greater obligation to obey an auth-
ority higher than their immediate superior, and God's will dissolved
all other obligations. The tutelage over children possessed by the
prince which gave him the right to step in and prevent bodily harm
by a parent applied with even greater urgency to the prevention of
the death of the soul. The baptism of such children was taken to
be valid since the faith of the church sufficed for them: all that
was needed was water, the proper ceremony, the intent of the
minister, and the faith of the church. The argument that the bap-
tism of children against the will of the parents applied only to the
children of Christians, since they were ipso facto subjects of the
church, was rejected on the grounds that all men were subject to
the church since all were called to baptism. Infidel parents cer-
tainly did not have greater rights than negligent Christian parents
 UlrichZasius and the Baptism of Jewish Children21

did, who were bound to bring their children forward for the rite.
Biel then proceeded to agree with the conclusions of Scotus
on the forced baptism of Jews generally, adding Augustine's famous
commentary on the parable of the banquet in Luke 14:23, "Go
out to the highways and hedges, and compel people to come in,
that my house may be filled." The church thus far had avoided a
general compulsion of infidels lest the peace of the church be
disturbed and uproar result. The argument of Thomas that Silvester
or Ambrose would have counseled such action had it been licit is
thus portrayed as mistaking the temporary tactics of a religious
minority for the permanent policy of a successful church militant:
.... For in the days of Silvesterthere were few Christians.And in
the days of the blessedAmbrosetherewere many Arianheretics.For
these reasonsgeneralcompulsionscould not be carriedout. All things
must be carriedout in accordancewith their own right time and
mode.52
Zasius used Biel's argument on the weakness of custom for
restraining the freedom of the church, but he never explicitly en-
dorsed his doctrine of general forced baptism. The treatise, in fact,
stressed at each possible point the validity of the ban of Toledo IV
although it denied its application to children.5" The inclusion of
the debating points made by Northofer, which do endorse the
whole Scotist program, is explainable chiefly in terms of Freiburg
university politics: in 1508 Northofer was the leading theologian
there, and his approval was important for getting the pamphlet a
hearing. Certainly Northofer's subscript to the treatise spells out
the fact that he did not think that Zasius had gone far enough
beyond the specific problem of the 1504 incident.54 Zasius' con-
cept of free consent for baptism, treated in his second question,
was a very vestigial one which left room for all sorts of indirect
pressure on a wavering potential convert.5" Still, he was not suf-
ficiently convinced of the validity of a case for general compulsion
52Citation in n. 22 above: ... quia tempore siluestri pauci fuerunt christiani. Et
tempore beati ambrosij plures heretici arriani: propter quod tunc congrue fieri non
poterant generales compulsiones. Omnia enim suo tempore et modo actitanda sunt.
5 3 See esp. De Iud., col. 342, a refutation of negative argument 8.
4De Iud., cols. 343, 350-352. Salo Wittmayer Baron, A Social and Religious
History of the Jews 9 (second edition, New York: Columbia University Press, 1965),
16-17, 248 n. 16 argues that Zasius supported general compulsion to baptism on what I
take to be a superficial reading of the text; cf. also ibid., 13 (second edition, New York,
1969), 197-198.
5'De Iud., col. 345, where "nudus consensus" of the child over seven is all that is
required for baptism.
22 The Sixteenth Century Journal
to approve it as a part of his argument: if he had, it would have
made several of his distinctions on the special status of childhood
unnecessary.
Guido Kisch is the only recent scholar who has dealt seriously
with Zasius' treatise, and he appears to have fallen into the fallacy
he himself once defined as the "lachrymose tradition" of Jewish
history.56 When he comes to grips with Zasius, Kisch stresses the
lurid details of the "Excursus" already quoted, and he holds that
Zasius' chief argument for forced baptism was the slavery of the
Jewish people.5 7 I feel that Kisch is wrong in his analysis. The
"Excursus" is exactly what it is called: an outburst which is only a
rhetorical flourish on a carefully-constructed brief. It might tell us
why Zasius wrote his work but not how it holds together as a legal
argument. Further, the slavery argument is only a minor part of
two major propositions which are used to deny the Thomistic posi-
tion, and it is one of the least telling parts.
The argument from slavery rests on a special condition of the
Jewish people arising from past historical-legal events, either as a
punishment for the killing of Christ or as a result of the conquest
of Jerusalem by the Romans in 70 AD. Zasius knew of the argu-
ment that Jews were in the servitude of Ham, and he ignored it.
But Aquinas had conceded that Jews were slaves of a sort, though
he held that it was a civil slavery which did not touch the exercise
of natural-law rights. The question did not turn on slavery, then,
but on whether parental powers in general could be overridden by
the prince. If his power of compelling baptism of children was
absolute, then the servitude of Jews made no difference in this
matter. They were on the same footing as all the other residents of
Christendom.
The two major propositions derive from general positive for-
mulations about the nature of Christian society which, if accepted,
undermine the basic assumptions upon which the toleration of
Jews in Christendom rested. The first of these arguments holds
that no defense from the custom of the church could be used to
restrain the exercise of power within a Christian society (the argu-
ment against custom).5 8 Zasius denied there was a valid custom at
" This was a major theme in Dr. Kisch's
great study, The Jews in Medieval Ger-
many (Chicago: University of Chicago Press, 1949).
57Cf. Kisch, Erasmus' Stellung zu Juden und Judentum (Tibingen: Mohr 1969),
pp. 30-31.
"De Iud., cols, 339-340.
 UlrichZasius and the Baptism of Jewish Children23

all, but he proceeded to meet the argument that the custom of the
church could bar the baptism of Jewish children by holding that
Christ had vested his own authority in the church itself. Even the
apostles could not have foreseen all things, any more than the
jurisconsult Paulus could have determined every question of the
civil law. The church continued as the repository of authority until
the completion of time. Some of the acts of the church were valid
only for a specific age, just as a medicine is only suitable for a
specific disease. Although Zasius denied that a clear contrary cus-
tom existed on the baptism, he also refused to admit that such a
custom would prevent the exercise of a proper power, particularly
where it touched salvation.59
The second major argument of Zasius held that the Christian
state exercised tutelage over every child, and that the Christian
prince was responsible not only for the prevention of mistreatment
and waste of substance of minor children, but also for their ade-
quate education in the faith. This vision of the Christian commu-
nity inspired Zasius in his codification of the laws of Freiburg in
1520: he saw the foundation of the town to be the family, and
the educational process to be the primary duty of the resident,
overseen by the Christian state authorities.60 Another reflection of

9Of course the practice of the church did eventually recognize cases where Jewish
children could be baptized, parents unwilling, for this very reason: that salvation is a
primary consideration when eventual perversion of the child can be avoided. Thus the
solution of the dispute by Benedict XIV (1747) recognized that children in peril of
death, or abandoned by their parents, or in the legal custody of Christians, could be
baptized, though otherwise he supported Thomas, cf. Dictionnaire de theologie
catholique, 2, 282-283, 341-351 and DDC 2, 138-143. The current law on the matter is
canon 750 of Codex Iuris Canonici (Rome: Vatican, 1917), p. 216; interpretation in
John A. Abbo, Jerome D. Hannan, The Sacred Canons (St. Louis: Herder, 1960), 1,
7534; Canon Law Digest, 1(1934), 337; 2(1943), 181-2; 3(1954), 301; 5(1963),
406407.
60Hansjurgen Knoche, Ulrich Zasius und das FreiburgerStadtrecht (Karlsruhe:
Muller, 1957), has restored the title of Zasius as the virtually exclusive author of the
Freiburg Code of 1520. The Preface of the Code describes the process by which the Code
was approved and promulgated, and then turns its attention to the basic duties of the
residents: Vermanen wir zufvorderst alle unser burger, Inwoner und hindersessen diser
Statt, das sy mit irn ee halten und hussgesind ein gotsfdrchtig ersam wesen ffiren, vorab
ire kind zA zucht und tugent uffplantzen von dem lichtvertigen zutrincken gotsslestern
und andern iuppikeiten, nach irem hochsten vermuitigen abwenden, daran dann stattlichem
wesen aller trost hangt, dartzu ir narung, und zytlich gut, erlich und wol anlegend, damit
sy Got dem allmechtigen gefellig, und dem gemeinen nutz geschickt, und erschliesslich
erfunden werden. (Ulrich Zasius, NiuwenStattrechten und Statuten der loblichen Statt
Fryburg [Basel, 1520]). Zasius also deals with the educational duties of parents in
Tractate 3, title 3, Paragraph "Wie die Vatter die kind erziehen soll." The father is bound
24 The Sixteenth Century Journal

this vision in the Freiburg Code was the new law of adoption.
Zasius touted adoption as a desirable pious practice little used
before, and he made every effort to encourage its wider use by
good Christian families. This probably arose both from the 1504
incident and from Zasius' long interest in the proper care of
children.6 1
The argument from tutelage denied explicitly that there was
any right in natural law to raise children in any faith other than
the true one. Both the argument from tutelage and the argument
against custom arose from a perception of the Christian commu-
nity which had its ancestry in the Christian states conceived by the
Nominalist scholastics and given shape by Gabriel Biel, and some-
thing very similar was described and propagandized by the
Christian humanists of the late fifteenth and early sixteenth cen-
turies. Once accepted, the notion of the revivified Christian com-
munity had room only for an interim toleration of religious
minorities. The new Christian community would evangelize the
Jews, and the result would be their unification into the faith or
their flight. The notion of interim toleration appears to have been
supported by men such as Erasmus and Luther,62 as against those
who held with Scotus and Northofer that the whole Jewish people
should be baptized at once and kept in the church "by warnings
and terrors."
Zasius' treatise is particularly interesting because it appeared
on the eve of the Reuchlin conflict. This is not the place to expli-
cate that long and involved controversy, but it must be recalled
that the Reuchlinist party included many who would have agreed
with Zasius, even with Northofer, on the general status of Jews.
The Dominicans of Cologne, guardians of the "natural law" doc-
trines of St. Thomas, sponsored the attack on the Talmud and on
the Jewish presence in Germany which was fronted by the convert
Pfefferkorn. Recent investigation has shown that the conflict was

to feed and educate his child to proper worship and to knowledge as far as his own resources
reach, particularly if the child has his own property, "byss er sy zA got oder der welt
versehen hat . . ." (Niwen Stattrechten, f. 59v).
6 ' Nawen Stattrechten, tractate 3, title 7: f. 78v.

62Cf. Leon Poliakov, History of Anti-Semitism, 1 (New York: Vanguard, 1965),

215-226; Reinhold Lewin, Luthers Stellung zu den Juden (Berlin: Trowitzsch & Sohn,
191 1).
 UlrichZasius and the Baptism of Jewish Children25

not a battle between humanism and scholasticism, and further

study will probably show that anti-Semitism (or anti-Judaism) was
not a distinguishing factor between the two sides either. Both
parties went out of their way to express their distaste for Jews,
and a fondness for Jewish learning did not entail a love of the
Jewish community. The conflict was seen by many as a personal
attack on Reuchlin, and this personal element pulled in several
humanists who were very cool to Jews, notably Erasmus. Zasius
appears in the Letters of Obscure Men not as a Reuchlinist (some-
thing he never was), but as a weapon-wielding anti-Dominican.63

Zasius has been shown to have collected a large mass of texts

on both sides of the question of Jewish baptism and to have dealt
with them freshly and independently. Although much of his argu-
ment had been prepared for him by Scotus and Biel, he did not
follow them to the point of advocating general forced baptism. He
appears to have felt that true forced baptism was illicit. Further,
he avoided such arguments as did not fit into his vision of a new
Christian society, such as the argument from Ham's servitude. In
bringing to bear the full range of argument from philosophy,
theology, canon law, Roman law and logical methodology, Zasius
here functions as truly as Biel as a "harvester." In fact, he moves
the process of harvest one step further by transposing the often
dense prose of Biel into the humanist dialect. The fact that the
fruits he gathered are not to everyone's taste should compel us to
take another long look at the social vision of the humanist cliques.
To see anti-Jewish views as simply an ugly incidental blot on an
otherwise tolerant world view, as Kisch argues in the case of
Erasmus,64 is to misunderstand the kind of world the Nominalists
and humanists were trying to build: the Seed of Israel had no
place in it. Anti-Judaism was intrinsic to their Christian society.
6
3Most recently James Overfield, "A New Look at the Reuchlin Affair," Studies
in Medieval and Renaissance History, 8 (1971), 165-207; see also Salo Baron, Social and
Religious History of the Jews, 13, 182-191. The text in the Letters of Obscure Men on
Zasius is found in Aloys Bbmer, Epistolae obscurorum virorum, 2 (Heidelberg: R. Weiss-
bach, 1924), 108: Et ivi ad Friburgiarr quaerens misericordiam;/ Sed ibi multi nobiles,
armati et horribilesd Reuchlin defenderunt et mihi mortem minaverunt,/ Nec non unus
vetulus, qui vocatur Zasius,/ Ille antiquus iurista, quaesivit, an sum Scotista./ Respodi:
'Doctor sanctus est mihi auctor summus:/ . . .'
64Erasmus' Stellung, pp. 38-39; cf. also Salo Baron, Social and Religious History
of the Jews, 13, 198: "It was owing more to the moderation of rulers than to the
teaching of jurists that the Jewish people escaped the catastrophic mass conversion of its
children."