The Talmud (19 page)

Initially Henry thought his chances of having the marriage dissolved were good. It was only a few years since his sister, Queen Margaret of Scotland had been granted permission to divorce, as had King Louis XII of France. But as David Katz points out, Henry had left it too late. Rome had just been sacked by the Holy Roman Emperor, Charles V; the Pope was virtually a prisoner with no authority to take independent decisions, and Charles was a nephew of Catherine of Aragon, who was fighting against the divorce with all her might.
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One of the stratagems that Henry used to justify a divorce was to argue that his marriage to Catherine had been invalid from the outset. She had previously been married to Henry’s brother Arthur, but he had died young. The book of Leviticus in the Old Testament prohibits marriage to the widow of a brother. Henry had only been able to wed Catherine after obtaining a dispensation from the previous Pope, on the grounds that her previous marriage to Arthur had not been consummated. Now the future Bishop of London, John Stokesley, was advising him that the dispensation should not have been granted since the Pope had no power to overturn a divine law. Stokesley said the marriage between Catherine and Henry should never have taken place and it needed to be annulled.
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The trouble was that although Leviticus forbade a man from marrying his brother’s widow Deuteronomy demanded that, if there had been no children from her first marriage, the widow had to marry her dead husband’s brother. According to Deuteronomy, Henry had been obliged to marry Catherine. Unless he could find a way out.

John Stokesley argued that the requirement to marry a dead brother’s widow, known as levirate marriage, only applied to the Jews.
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He suggested that Henry find Jewish scholars who would bring evidence from the Talmud to support this view, and to show that in fact the Jews had abandoned this law.
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Stokesley wanted to argue the Deuteronomy injunction out of existence. Henry imported a copy of Bomberg’s printed Talmud into England for his advisers to consult and Richard Croke was despatched to Italy to find Talmudists who would help him.

In Venice, Croke engaged Francesco Giorgi to help him. Giorgi was a leading Christian Kabbalist with good contacts in the ghetto. Giorgi introduced Croke
to Elijah Halfon, a rabbi and Kabbalist, who confirmed that levirate marriage, like most of Jewish law, only applied to Jews. However, the Vatican also engaged a Talmudist, Jacob Mantino, an exile from Spain, who took the other side and confirmed the Pope’s view.

The situation wasn’t helped by a separate quarrel between Halfon and Mantino, over a messianic pretender named Solomon Molcho. Molcho was a
converso
from Portugal who believed he was the Messiah, and who had attracted a sizeable following. Mantino was an avowed opponent of Molcho, whilst Halfon was a supporter. Their conflicting opinions on the question of Henry’s divorce were influenced by their personal antagonism over Solomon Molcho.

Realizing that Halfon’s testimony would not sway the Pope, Richard Croke turned to Marco Raphael, a Jewish convert to Christianity whose principal claim to fame was that he had invented an invisible ink. Raphael enthusiastically supported Henry’s position and Croke brought him to England to testify in front of Henry. However Raphael’s evidence turned out to not be of much use since he could not confirm that Henry was free from the stricture to marry his brother’s widow. Henry turned his not inconsiderable ire on Raphael and we hear no more of him.

But at the end of the day Henry’s whole exercise of relying on the Talmud to legitimize his divorce turned out to be fruitless. As things turned out his lover, Anne Boleyn, became pregnant. Henry broke from the Catholic Church, divorced Catherine on his own authority and married Anne.

The Hebrew Republic

The seventeenth century saw the development of modern political thought. Ideas that we take for granted today, such as individual rights and freedoms, the nation state and religious tolerance all began to emerge during this period. One of the drivers for these new ideas was the revival of the Hebrew language by the Christian Hebraists and their investigation of the biblical text.

Some Christian thinkers began to see the Bible’s account of how the ancient Israelite nation was governed as a blueprint for the administration of their own nations. They believed that the Old Testament presented the ideal political constitution, one designed by God for the Children of Israel.
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Some, notably Jean Bodin in France, saw the Israelite monarchy under King David and his descendants as the paradigm; for them the Hebrew Bible advocated the rule of kings.
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They backed up their claims with a passage from Deuteronomy:

When you come to the land the Lord your God gives you and have taken possession of it and settled there, and you say, ‘Let us set a king over us like all the nations around us’, you may appoint a king whom the Lord your God chooses.
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It is an ambivalent passage which permits, but by no means demands, that the Israelites appoint a king over themselves. Not all Hebraists read it in the same way. They didn’t all believe that the Hebrew Bible advocated monarchy. Some looked elsewhere in the Bible for evidence of the ideal government. They found plenty of options; aristocracy, theocracy, even democracy. As Kalman Neuman puts it, Political Hebraists did not share a political vision, but they did create a common language of discourse. In time this discourse would influence the great political thinkers of the seventeenth century, including Hobbes and Spinoza.
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Although they delved deeply into the biblical text most Hebraists had neither the knowledge of Jewish law nor sufficient command of Hebrew to investigate the Talmud, nor even the many commentaries that had by now spun off from it. But some began to feel that the Hebrew Bible alone could not lead them to a full understanding of what they regarded as the idealized, divinely sanctioned form of national government. And so, from amongst the Hebraists arose a small group with the skills and erudition to look beyond the Bible itself. They had a few tools to help them do this, including an Aramaic lexicon that Johannes Buxtorf, perhaps the most erudite of all Hebraists, was engaged in producing in Basel.
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They based their investigations on the prophet Samuel’s warning to the Israelites when they decided to ask God for a king ‘to judge us, like all the nations’.
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Samuel adjures them:

This will be rule of the king who will reign over you: He will take your sons for himself and place them in his chariots and as his horsemen, and they will run in front of his chariots. Some he will appoint to be commanders of thousands and commanders of fifties, and to plough his ground and reap his harvest, and to make his weapons of war and equipment for his chariots. He will take your daughters to be perfumers and cooks and bakers. He will take the best of your fields and vineyards and olive groves and give them to his servants.  He will tithe your seeds and your vineyards and give it to his officials and servants. He will take your menservants and maidservants and the best of your young men and your donkeys and he will put them to his work. He will tithe your flocks, and
you will be his slaves.
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This passage seemed to prove that the Israelites had been wrong in asking for a king. Monarchy was not the way to go. Republicanism seemed to be a much better option.

Wilhelm Shickard, Professor of Hebrew at the University of Tubingen, marshalled the Talmudic and rabbinic sources on the passages from Deuteronomy and Samuel in his legal treatise,
The Hebrew King’s Law
. His sources were used in a bitter dispute between Claude de Saumaise, or Salmasius, and John Milton, author of
Paradise Lost
. Salmasius had written an impassioned defence of the monarchy after the execution of England’s Charles I. Milton, a staunch republican who equated monarchy with idolatry
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had written a fierce riposte. Neither man, it appears, could read the Talmud
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but Shickard had set out the sources clearly enough for Milton to accuse Salmasius of plagiarizing Shickard
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and misrepresenting him.
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The Hebrew Republic, based on Talmudic sources marks the beginning of modern republican, political theory.

New Israel

The Dutch Republic had recently freed itself from Spanish rule. The newly independent nation bought into a founding myth that proclaimed them, like the biblical Israelites, as having been redeemed from slavery. They even called themselves the New Israel. It seems like a harmless name but it was responsible for a deep split in Netherlands Protestantism during the early part of the seventeenth century.

For the orthodox Calvinists, the victory of New Israel over Catholic Spain had been a vindication of their true faith. They believed they were now obliged to enforce that faith by regulating religious belief. Their opponents argued that by defeating Spain, New Israel had scored a victory over tyranny. As such, it was their duty to establish a free, tolerant society in which people could follow their conscience in religious matters.
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Hugo Grotius, one of the pioneers of modern international law and a former child prodigy who had gone to university at the age of eleven, cited the example of the Hebrew republic to support the tolerant view. In a nutshell, he argued that the ancient Hebrew republic was the ideal society because it had been ordained by God. In this society all law, both religious and civil, had been placed into the hands of a single, law-making body, the Sanhedrin. This implied that both religious and civil law have an identical purpose, to regulate society. Since matters of personal conscience and religious belief have no bearing on the smooth running of society, the Sanhedrin, and by implication the Dutch law makers, have no jurisdiction over personal belief. Conscience and faith, argued Grotius, lie outside the law.

Up to this point he was doing little more than restating the arguments of the sixteenth-century Swiss theologian Thomas Erastus. But Grotius then moved on to cite the Talmud. He showed that that under certain circumstances the Sanhedrin had the power to suspend religious law and to punish those who ‘commit a crime in sacred matters’
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The civil court therefore had absolute jurisdiction even over religious matters. There were no grounds for a separate religious authority beyond the government of the state. The Talmud proved, to Grotius’s satisfaction, that religious tolerance was axiomatic.
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Petrus Cunaeus was a friend and colleague of Hugo Grotius. A professor of Law at Leiden University and amongst the most influential writers on the Hebrew Republic, Cunaeus pioneered a new perspective on land ownership. The Bible had decreed that the Land of Israel was to be divided equitably amongst the twelve Hebrew tribes, and that territory could not be sold in perpetuity. Cunaeus quoted Maimonides and the ‘requirements of Talmudic law’
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to show that his theories of land ownership would lead to a harmonious and equitable society.
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Political Hebraists, whose Protestantism was firmly wedded to the belief that the Jews had to be converted, made full use of the Talmud, but they did not flatter or lionize it. They recognized the ability of the ancient Talmudists to interpret the biblical text but in their eyes this was because of their command of the ancient Hebrew language, not due to any merit possessed by the Talmud itself. They used it to develop their political ideas but Cunaeus rejected ‘its trifles’, by which he meant the allegorical and non-legal material which supports Jewish tradition. Indeed, he considers the Karaites, who considered the principles of the Talmud to be worthless, and who focused only on the biblical text, to be ‘more intelligent’ than the Talmudists.
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Likewise, Hugo Grotius only supported the rights of Jews to settle in Holland because he believed that the Dutch Reformed Church was the most likely to be able to convert them.
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England’s Protestant Chief Rabbi

The Hebraists in England were less disdainful towards the Jews than their European colleagues. They could afford to be, officially there had been no Jews in England since Edward I expelled them in 1290. They wouldn’t be formally readmitted until midway through the seventeenth century, when Menasseh ben Israel, the leading rabbi in Amsterdam and a correspondent of Hugo Grotius
and Petrus Cunaeus,
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began to lobby Cromwell for their return.
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It was the absence of any Jewish scholarly presence in Shakespeare’s sceptred isle that made the achievements of John Selden, described by Milton as ‘the chief of learned men’ and by Grotius as ‘the glory of the English nation’,
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so remarkable.

John Selden was a lawyer by profession. In his mid-thirties he had caused a rumpus within the Church by arguing in his book
The Historie of Tithes
that priests did not have a divine right to receive tithes from their parishioners. This had been a burning political issue for some years. Selden’s book showed that there was no direct historical connection between the tithes that the Old Testament demanded for the Hebrew priests, and the voluntary system of tithing which had found its way into the Church in the early medieval period. His work threatened to deprive the clergy of a significant proportion of their income.

Selden was elected to Parliament in 1624. Five years later he found himself on the wrong side of a dispute between the king’s supporters and their opponents. He insulted the king’s chief spokesman in Parliament, took the side of John Rolle, an MP who was refusing to pay customs duties and commanded the Speaker of the House to put the matter to a vote, on pain of being removed from office. He was hauled before the Privy Council for his pains, and cast into the Tower of London.
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It was from the Tower that he wrote the letter to his friend, the antiquarian scholar Sir Robert Cotton, which, according to Jason Rosenblatt, would change the course of his life and deepen his scholarship. Selden, whose enforced idleness left him with ‘much time here before me’, asked Robert Cotton to borrow for him a copy of the Talmud from the Westminster Abbey Library.
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