Civil Courts and Jewish Divorce

The French National Assembly's decrees of 1790 and 1791 granting Jews civil status for the first time in Western History were not spontaneous events. Two Jewish divorce cases that became causes célèbres ¹ lend insight into the profound evolution of juridical attitudes in the second half of the eighteenth century which preceded these decrees. These cases provide a hitherto unexplored perspective on the integration of religious minorities by linking divorce to the construction of a national identity that was not defined by the hegemony of Catholicism. The first case began in 1754 with the seemingly innocuous request by the converted Jew Borach Levy to Church authorities to dissolve his marriage to his Jewish wife and marry a Catholic. His claim initiated one of the most notorious divorce cases in eighteenth-century France. ² Levy's lawyer, Loyseau de Mauléon, captured the significance of the case as a matter that, “…touches equally on the rights that accord between the new convert, religion, and the state.” ³ The judgment in his case not only prohibited Levy from divorcing his Jewish wife to marry a Catholic, it also prevented him from integrating into French society, reinforcing the perception that, for French society, Jews were aliens even after conversion.

The second case began in 1775 when a banker named Samuel Peixotto, a member of the Sephardic Jewish community from Bordeaux, appealed to sovereign, rather than Jewish, courts to permit him to divorce his Jewish wife. Similar to the Levy case, the Peixotto case achieved almost unprecedented notoriety and the advocacy of some of the most prestigious names in prerevolutionary France. There was however a significant difference between the two cases. The Peixotto case shifted the focus from the issue of conversion to the issue of jurisdiction of the sovereign courts over a Jewish divorce. This subtle shift eliminated the requirement of Catholicism as a criterion for French citizenship. As a result, the celebrity of the Peixotto case drew attention to the larger meaning of Jews coming before French courts, subject to the same law that governed other subjects, even on issues as intimate and culturally charged as divorce. Relying on arguments based on natural law that would be repeated by advocates for the Jews in the National Assembly, lawyers arguing the Peixotto case used the issue of jurisdiction over Jewish divorce to call for the admission of Jews to membership in French society.

Although the events of the final decades of the eighteenth century are much more complex than marital breakdown writ large, these cases reveal a link between divorce and the acceptance of Jews as members of the polity which emanated from the politicization of the social experience of marital breakdown. Challenges to the dissolubility of marriage affected the entire structure of authority. ⁴ As Sarah Maza has argued, in the aftermath of the Maupeou “revolution” lawyers often transformed private conflicts into public affairs in ways that both reflected and influenced collective attitudes. ⁵ Similarly, Giacomo Francini has argued the discussion of marriage as well as divorce belonged to a universal way of perceiving not only family relations but even social attitudes, especially if conceived through their civic representations. The family, being the basic unit of society, reflected the organization of the state. ⁶ The public and private aspects were mutually reinforcing.

The pro-divorce, or divorciares pamphleteer movement, which led this challenge was influenced by writers such as Hugo Grotius, ⁷ Samuel Pufendorf, ⁸ and philosophes such as Diderot, Voltaire, and Montesquieu. ⁹ Seeking to replace the ignorance, stupidity, and fear that went into the making of the “cake of custom,” ¹⁰ these men sought to create a new social order. These writers viewed the separation of church and state, the secularization of marriage, and the exercise of tolerance as the basis of a state from which no group would be barred. In this framework, the state's apparent right to impose a uniform religious doctrine on its citizens dissolved. ¹¹ The ensuing erosion of the church's authority created a space in the social fabric for the acceptance of religious minorities.

Until the 1770s, civil law jurists such as Pierre le Ridant, Francois Bourjon, and Robert Joseph Pothier, despite challenging the church and supporting secular control over conjugal matters, did not explicitly articulate support for divorce. ¹² Formal opposition to divorce therefore remained an obstacle to the convert from Judaism who sought to divorce a Jewish spouse to marry a Catholic and integrate into society outside of the Jewish community. This meant a convert could never really extirpate his Jewishness and attain a new identity as a Catholic.

The divorciares, while influenced by these jurists, articulated a more radical position in support of divorce. The movement in the 1770s by pamphleteers to legalize divorce emphasized material and emotional hardships of the individual trapped in a bad marriage. They focused on unhappiness and injustice to the individual rather than corporate and family responsibility as a means to strengthen the state. ¹³ Their claims were supported by public demand for some form of marital dissolution. Complaints, lawsuits, and mémoires requesting divorces or legally sanctioned separation multiplied in the last decade of the old regime. ¹⁴ The proliferation of cases before civil courts seeking solutions to marital breakdown represented an unofficial challenge to the indissolubility of marriage and the church’s authority in this regard. The royal administration provided relief by authorizing some form of separation even if it could not authorize divorce. This was a practical erosion of the authority of the church which would ultimately change Jewish civil status.

Appeals to sovereign courts challenged the authority of the Jewish community in a similar way. The Jews, despite their ambiguous legal status and the many restrictions imposed on them, traditionally exercised a large degree of control over personal status. Jews had the right to be judged by their own separate courts on issues such as marriage and divorce, a right not permitted any other group in France. ¹⁵ Questions of personal status belonged exclusively to rabbinic tribunals and were enforced by the community leadership. The implication of this autonomy on these areas was amplified because Jewish custom placed a high value on marriage and reproduction. ¹⁶ Marriage was an important social marker of status and a matter of economic and spiritual survival, giving the community resilience and stability. ¹⁷ Marriage was also critically important to the Jewish community as a bulwark against extinction which had often seemed a real possibility in the face of historical expulsions and persecution. Control over this important aspect of life allowed the rabbinic tribunals and community leadership to control membership and to guard the integrity of the community against dilution by conversion. ¹⁸ The crown's support buttressed this autonomy.

Inconsistencies in the interpretation of the law however, ultimately eroded the communities’ authority. Conversion and the remarriage of converts were issues of legal uncertainty for the Jewish community as they were for Royal authorities and the church. ¹⁹ Both the church and the Jewish community frequently contested voluntary conversion and the Jewish community tended not to recognize forced conversion. The Jewish community, the church, and local authorities were more likely to object when there was some reason to be skeptical about the potential convert’s motives such as the alleviation of his tax burden or restrictions. For the Jewish community, the very real financial hardship of having to assume a lost member’s tax burden was a particular incentive to oppose conversion. The loss of tax revenue and extra fees also played a role in jurisdictional challenges to conversion between local authorities and the church. For this reason, conversion was not necessarily a means of assimilation or a path to greater privileges or status.

Conversion impacted the structure of the Jewish community not only through the loss of the financial revenues of a member, but through its impact on his or her family and their ability to form new marital bonds within the community. The choice to convert was not always shared by all members of a family. Jewish spouses, more typically Jewish women than men, often chose not to follow their spouses into Christianity. Moreover, Jewish theologians were conflicted over whether apostasy terminated a marriage and what impact the conversion of one spouse had on the other spouse if they chose to remain in the Jewish community after the conversion of their husband or wife. According to Jewish law, only the husband can initiate a divorce and the wife of a converted Jew was considered to remain legally married as long as her husband did not divorce her. In some cases, both Jewish and Church courts regarded apostasy as terminating a marriage. ²⁰ In other cases, the Jewish courts held that a divorce was necessary to allow the nonconverted spouse to remarry. In cases where the husband was the convert he would be required to initiate a divorce in accordance with the Jewish rites he had rejected in order to free his Jewish wife to remarry. ²¹ On the other hand, converts were discouraged from initiating divorce by the Catholic doctrine of indissolubility of marriage, although Catholic converts were occasionally permitted to remarry in order to promote conversion. Nonetheless, a Catholic convert who initiated a divorce according to Jewish law was abiding by a tradition that, by conversion, he had rejected.

The Jewish community often proved unable to resolve these cases as the convert considered himself beyond the jurisdiction of the community. ²² This left the nonconverted spouse without the status that marriage conferred. This was a particularly difficult state for women who could not participate in the governance of the community and were left without formal representation or protection. This issue generally exacerbated the ambiguity of the law because, according to Jewish law, the status of women was balanced by the presumption that the law must protect the weaker party. For example, although only the husband could initiate divorce proceedings, a husband could not force a wife to accept the divorce once the process had been initiated. Despite the efforts of Jewish authorities, who treated the claims of women with great sensitivity even where it contravened Jewish law, there were numerous appeals to courts outside of the community which invited Royal or church intervention because of inconsistent rulings. ²³ This litigation became a subtle form of integration which redefined Jewish identity as subjects of the King rather than marginalized outsiders.

Jewish appeals to sovereign courts were not only of concern to the Jewish community. These cases attracted the attention of reforming jurists who were motivated to rationalize the juridical and jurisdictional dilemmas they presented. Eighteenth-century jurists, like their predecessors, were influenced by enlightenment ideals of egalitarianism and individualism. Their view of the social exclusion of groups, such as Protestants and Jews, as anachronistic was even more pronounced than their seventeenth-century counterparts. Even to those who desired reform however, the Jews were distinguished by more than their religious beliefs. Most jurists believed that the Jews’ particularism and autonomy isolated them from French society. To many reformers, the Jews' distinctive practices, such as divorce, were irreconcilable with French values thereby inhibiting Jewish integration into French society. ²⁴

The unique position of Jewish divorce, as a practice that was tolerated for the Jewish minority but was not permitted to French Catholics, gave it a role in the wider debate on the question of divorce. ²⁵ Jewish divorce was a neutral ground for the arguments on both sides of the divorce debate. To rationalize the toleration of Jewish divorce, when divorce was prohibited for French subjects, arguments for individual liberty expanded to include a consideration of the status of the Jews. Advocates for divorce asserted that if Jews were considered to be French subjects, then divorce should be condoned. Opponents of divorce believed that Jews should only be considered French subjects if they desisted from practices, such as divorce, that were repugnant to Catholic values. Those who opposed divorce therefore also opposed changes to Jewish status.

Proponents of divorce and elevating Jewish status were assisted by the reality that Jews were not as publicly isolated or segregated as has been traditionally assumed. The frequency of Jewish appeals to sovereign courts demonstrated the courts that entertained these appeals already recognized that Jews had a legal status beyond that of etrangers. The degree of frequency of these appeals to sovereign courts can be ascertained by the form of the memoranda filed in these cases. The pleadings and memoranda of Jewish litigants, especially female litigants, adopted the same format, although it was not a Jewish practice. The typical narrative formula for a wife in a divorce suit began by lamenting their misfortune in marriage and professing their innocence. The typical formula also included a catalogue of the financial hardships and abuse they had endured, and concluded by describing the recent circumstances that had finally forced them to reveal their domestic problems to outsiders in spite of their reluctance to do so. ²⁶ Selecting details and choosing words not only to convey information but also to make an impression, they claimed typical female virtues for themselves and attributed typical male vices to their husbands. ²⁷ The use of this form is significant because it was designed to illicit sympathy and justice from a royal court rather than a Jewish one.

The poignant letter from Mendel Cerf, Borach Levy's Jewish wife, begging Levy not to abandon her despite her refusal to convert is an important example. It follows a similar form of narrative that typical litigants outside of the Jewish community adopted with a catalogue of the misfortune that her husband's abandonment caused in the face of her devotion to him. Most telling is the use of the formal vous form although it is written as an intimate letter from one spouse to the other. She begins her letter by begging him to reflect on his decision to convert and asks what cause she has given him for complaint: “…dites -moi, mon cher Borach, les biens de ce monde n'étant que passagères, méritenet-ils qu'à leur égard vous sacrifiez votre ame, celle de votre épouse et de vos enfans? Helas! Que-pensez-vous, vous ai-je jamais donné le moindre sujet de vous plaindre moi?…” ²⁸ She tells him that, should he return to his senses and return to her, “Je fais qu'on est pret á faire tout pour vous, venez donc je vous en conjure. Un chagrin des plus cruel me dèvore…” She promises to forgive him with all her heart and not to reproach him should he return home: “Que le procés a Paris aille comme il pourra, revenez au Pays, je vous pardonne de tout mon coeur.” ²⁹ She then begins a catalogue of events intended to place a mantle of guilt on his shoulders for abandoning not only her, but his family and community. His young nephew who is close to dying seeks news of him. She asks: “Borach, est-il possible que vous puissiez m'oublier totalement aussie bien que votre mere, qui nà plus que deux jours à vivreé…” ³⁰ She then catalogues her misfortunes: “…En quoi vous ai-je offense, Seigneur pour avoir mèritè de si horribles chatiments! Ce qui augmente mes douleurs, c’est de voir mes pere et mere sàrracher les cheveux de cetter avanture, jamais jeune femme nà eu tant de malheur que moi.” ³¹ She ends her letter with the pitiable plea: “Borach, mon cher Borach, ayez pitiè moi, ne manquez, pas de mècririe out plutot de revenir. L'èxces de douleur me fait finir ma lettre et peut-etre ma vie.” ³² Ironically, Mendel Cerf's use of this format and its purposeful appeal to a royal court rather than a Jewish one was unaffected by the principal issue in the case: her refusal to convert to Catholicism.

Levy's quest for a divorce from his Jewish wife initiated a multifaceted debate regarding the influence of the church and the religious criteria for membership in French society. Inherent within this debate was the issue of whether excluded religious groups could be included as subjects in a redefined nation. In 1751, the beginning of Levy's appeals, the influence of the Catholic Church on juridical status for all elements of French society was still pervasive. There was little support for the possibility of a secular law of divorce or ideas for integrating the Jews in the French polity. The focus of Levy's case on the issue of the convert's divorce, and therefore the ability of the convert and his Jewish spouse to remarry and reestablish themselves in their respective communities, was complicated by the lack of clarity concerning the convert's social identification and civil standing. From the converts' perspective, these factors combined to create a particular form of limbo. The inability to divorce a recalcitrant spouse and allow a convert to remarry within the church meant that conversion had not expurgated the ties to the Jewish community or eliminated one’s Jewish identity.

A convert would suffer the punishment of excommunication (herem). ³³ Excommunication had a different connotation for Jews than for Catholics. For Jews, excommunication was akin to exile. Once an individual was excommunicated from the community, no member of the community could have personal or commercial commerce with the excommunicant. This had dire practical as well as spiritual consequences for the excommunicated individual. As legal status was granted to the community, as opposed to the individual, an excommunicant whose conversion was not accepted by the church had no legal standing. A convert who could not remarry a Catholic was simultaneously doomed to a life of celibacy which compromised his ability to assimilate into Catholic society and was also without the protective connections to the Jewish community, leaving him with few options in terms of livelihood or residence. The inability of the convert to divorce according to Jewish law not only placed the convert in limbo and eliminated his ability to join Catholic society, it also undermined the power of the Jewish community to provide a divorce for wives of converts so that they could remarry within the Jewish community. This problem eroded the exclusivity of the group’s identity and the community’s power to act as a protective buffer between its members and the surrounding society. ³⁴

These issues propelled the Levy case to the center of fervent political and theological debate, as well as making Levy and his associates the focus of threats, assassination attempts, and bribery. From the time Levy moved from his original residence of Haguenau to Paris in 1751, and began the process of conversion, he was plagued by resistance and intrigue. Levy had many debtors within the Jewish community who feared that his conversion would leave them with no recourse. When his reputation as a debtor became known, it also destroyed his support from church authorities. 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. This opposition contrasted with the support of members of the political elite, who chose to support Levy and make his case an example of enlightened reform despite his reputation. Although he received the support of powerful patrons, including 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 Levy’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 M. le Duc d’Orléans did not help. ³⁵ The archbishop of Paris refused the baptism on the grounds that Levy’s reputation and character made him a poor subject for baptism and stated that he would never permit him to be baptized in Paris. This position was supported by his view that, as Levy was not domiciled in Paris, the archbishop did not have authority to baptize him in any event. ³⁶

In the face of this refusal, Levy sought the advice of three advocates of the parlement of Paris. Relying on their legal opinion, Levy made a formal request to the priest of Saint-Sulpice to fix a date for the baptism with the demand that he be given an explanation should his request be refused again. ³⁷ This bold step deepened the intrigue. The translator assisting Levy, who spoke German, was threatened and refused to continue to act as his interpreter, eventually disappearing altogether. After further consultation with his advocates, ³⁸ Levy published a memorandum that recorded the intimidation 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. ³⁹ Levy 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 August 10, 1752. On his conversion, Borach Levy took the name Jean-Joseph-François-Elie Levi. ⁴⁰ However, neither the opposition to his baptism nor the intrigue ended. The archbishop of Paris obtained a lettre de cachet dated September 29, 1752, against Pierre le Soudier who was exiled to Haguenau for having performed the baptism. ⁴¹

The second component of this famous case, Levy’s efforts to dissolve his marriage to his Jewish wife Mendel Cerf, was no less intriguing. In October 1752, Levy demanded the conversion of his wife and two children with the reasonable expectation that this would instigate a dissolution of their marriage. Advocates of the sovereign council of Alsace, where Levy 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, among many communities in Alsace, the wife's refusal to convert was regarded as a dissolution of the marriage. ⁴² Mendel did not acknowledge Levy’s request. Nonetheless, after Levy delivered his request to Mendel, he placed his two children in Catholic religious communities. They were eventually baptized on March 29, 1755, at Villeneuve-sur-Bellot with Levy’s own godmother, Madame de Mauroi, acting as godmother for his children. ⁴³ Satisfied with the result, Levy returned to Paris where he stayed for eighteen months without further concerning himself with his wife. During this period, he passed the greatest part of his time at Villeneuve-sur-Bellot in the diocese of Soissons in the home of Madame de Mauroi, his baptismal godmother. It was in Madame de Mauroi’s home that Levy 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 which was subsequently witnessed on June 1, 1755, before a notary at Villeneuve. ⁴⁴ Mendel Cerf, however, posed an unexpected obstacle to his plans.

Not having a satisfactory response from his wife to his original summons, he presented a second summons to her on May 13, 1754. ⁴⁵ This time Mendel’s response was exactly what Levy 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. Although she begged her husband not to abandon her, ⁴⁶ 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. ⁴⁷ Levy was reluctant to do this because it would run afoul of the Christian doctrine of indissolubility and compromise his standing as a convert. Not, however, anticipating any further obstacles, on May 22, 1754, the date he was to obtain a response from Mendel to his summons, he was in Paris with Nicholas Thevart obtaining the notarized consent to marry Thevart's daughter Anne.

Despite two further summons, Mendel Cerf remained constant in her Judaism. ⁴⁸ Claiming that it was established practice to allow converts to dissolve their marriages to recalcitrant spouses, on October 4, 1754, Levy wrote to the bishop of Strasbourg requesting the dissolution of his marriage. He relied on a number of decrees by the sovereign council of Alsace and consultation with three advocates of the sovereign council of Alsace dated March 18, 1754. ⁴⁹ 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. The sovereign council's ordinance dated October 23, 1754, gave him permission to make a final request to Mendel Cerf in person on November 7, 1754. Mendel did not appear in court and a default judgment was rendered against her stating that Levy was “free to enter into marriage, in the holy Catholic Church, apostolic and Roman, with a person of the same religion.” ⁵⁰ Once this judgment was obtained, Levy left Alsace and requested the priest of Villeneuve to publish the bans.

The real point of departure for the Levy case came when the priest of Villeneuve, with the backing of Archbishop Christophe de Beaumont, refused to publish the bans for Levy’s marriage to Anne Thevart. Levy filed an appeal of the decision on June 13, 1755, and a request on June 30 to the Officialité 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. ⁵¹ On August 6, 1755, the priest of Villeneuve responded to Levy by declaring his concurrence with the judgment of his superiors refusing Levy permission to marry. ⁵² Although Levy had compromised the success of his appeal by failing to notify his wife of the judgment of the Officialité of Strasbourg (rendered November 7, 1754), the crux of the decision was the challenge to Levy’s assertion of domicile at Villeneuve, an issue which was linked to Jewish status.

According to French jurisprudence, as a Jew Levy did not have any fixed domicile, did not belong to any diocese, and had lesser status than a vagabond. ⁵³ 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.” ⁵⁴ This left Levy without standing regarding the right to celebrate his marriage because “…during his residence in Haguenau in the diocese of Strasbourg there was no archbishop, no bishop, no priest, no domicile to effect a marriage celebrated according to the rights of the Catholic church. During the time he lived in Judaism he could not apply the ordinances of our king until he became a Catholic.” ⁵⁵

In the baptismal proceeding, Levy argued unsuccessfully that he had 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 Levy in the untenable position of acknowledging the bishop’s authority which also required 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. ⁵⁶ 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. ⁵⁷ 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. ⁵⁸ He would be left without legal status either as a Catholic or a Jew.

The positions taken by Levy’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 Levy permission to marry would undermine his baptism which was the basis of citizenship and which should be open to all because of the universal nature of Jesus’ sacrifice. In the words of Levy’s advocate Loyseau d’Mauléon: “Finally, it is the same maxim from which the status of persons and the public certainty of this state is forcefully derived; baptism renders us citizens and capable of all the effects of citizenship. To refuse baptism is to exclude one from the state and the privileges of citizenship.” ⁵⁹ Levy’s advocates maintained that there was no precedent for refusing a sincere request for baptism in the history of the church. ⁶⁰ The scriptures, canon law, and secular law all stipulated that if an adult who sincerely desired baptism had received sufficient instruction, he must be baptized. ⁶¹ It was not dependent on moral character or race and applied to Jews like Levy who could not even speak French. ⁶² Any concerns raised over Levi’s moral character were therefore irrelevant and there was no reason to refuse the baptism. ⁶³ Accordingly, Levy should also be permitted to remarry as a Catholic to establish his life in the Catholic community.

Levy’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. ⁶⁴ This required the appropriate delineation of authority. In this regard, they claimed that while the parlement did not have the authority to make exceptions regarding dogma, ⁶⁵ 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. ⁶⁶ The King, as the protector of canon law, guarded against the danger of inconsistency and offence to divine law which resulted from the sanctioning of rituals based on secular opinion and practice. ⁶⁷ Moreover, the Crown’s role was to protect the precepts of the scriptures and the canons of the church. ⁶⁸ 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.” ⁶⁹

The bishop’s court of Soissons pronounced on and denied Levy's appeals on February 5, 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 parlement. ⁷⁰ 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 dissolution of the Jewish marriage to permit remarriage to a Catholic. Appeals to the civil authorities such as the local parlement or community councils were equally inconsistent. ⁷¹

In argument on the appeal Levy’s advocates asserted that not all marriages were “sacro-sainte.” ⁷² They claimed that marriage between two Catholics undertaken within the church was entirely distinct from marriage between infidels or from mixed marriages. Although marriages between infidels, or between a Catholic and an infidel, were legitimate bonds as “an ordinary contract,” ⁷³ they were not of the same sacramental nature as Christian marriage and the principle of indissolubility was not applicable to them. Non-Catholic marriage should not be considered “…like a type of mystical union of the sort that was absolutely forbidden to touch.” ⁷⁴ Therefore, while Jewish marriages could be recognized as 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, they argued that the church recognized that a marriage that preceded conversion was not concluded in the church. It could be dissolved according to the rites in which it was formed and Jewish divorce should be recognized. ⁷⁵

The question remained, however, that Levy 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 to which he had converted. ⁷⁶ He was seeking a new identity as a Christian. To resolve this dilemma, Levy’s defenders asserted that the church had always permitted exceptions to the rule of indissolubility, even for Christian marriages and, that if the hope of converting a nonbelieving spouse proved futile, then remarriage should be permitted so as not to “place the faith of the convert in danger.” ⁷⁷

This argument provided a practical solution for converts by treating them as having established entirely new identities by becoming Catholics. The creation of this new identity rescinded all former obligations, as it did in Jewish doctrine. 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, Levy’s defenders saw conversion and total assimilation as preferable to elevating the Jews’ civil status in France. De Mauléon expressed the concern that in the cities where Jews had acquired more privileges conversions were rarer. ⁷⁸ He also 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. ⁷⁹

In contrast, Levy’s detractors totally rejected the idea of tolerating customs which did not conform to catholic practice, and did not 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. ⁸⁰ This prevented women from the possibility of having more than one husband, a practice that was “…an abuse, a corruption and depraved.” ⁸¹ 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, Levy’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. ⁸² Baptism “purified sins but did not sever marriages,” ⁸³ nor did it change one’s social identity from a Jewish alien to French citizen. ⁸⁴

On January 2, 1758, the parlement of Paris ruled against Levy’s request, stating definitively that it was “…forbidden for Loyseau's client to remarry during the lifetime of his first spouse.” ⁸⁵ This ruling created an obstacle to the assimilation it was intended to promote by preventing converts from remarrying during the life of their recalcitrant spouses. Inclusion of this rule in the letters patentes of 1784 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, doomed to exist on the legal fringes of society, and enforced the exclusion of Jews who had converted from Catholic society regardless of religious allegiance. It also made it impossible to dissolve the barriers which had kept the Jews as a separate entity from the rest of French society.

In 1775, over twenty years after Borach Levy's appeal was denied, a Jewish Bordelais banker named Samuel Peixotto brought his request for a divorce from his wife, Sarah Mendes D’Acosta, before the Châtelet of Paris. Like the Levy case, the Peixotto case attained almost unprecedented notoriety and attracted the advocacy of some of the most prestigious lawyers in prerevolutionary France. Guy-Jean-Baptiste Target, Louis-Simon Martineau and Pierre-Louis Lacretelle all contributed to this famous litigation. The Parisian gazettes and journals, the Bordelais and foreign press were all fascinated by the case. ⁸⁶ Superficially, the Levy case and the Peixotto case shared a number of similarities. A remarkable transformation in attitudes, however, had occurred toward both divorce and Jewish status in the two decades since the Levy case. At the time of the Levy case in 1754, although Jews had begun to appeal to French courts on personal status issues such as marriage and divorce, their status was ambiguous and they were considered as étrangers at best. There was no acknowledgment that the Jews had civil or juridical standing. As Levy's case had demonstrated, even converts who had ostensibly left the Jewish community did not have clear standing before sovereign courts on issues related to personal status. Appeals on these issues seemed futile in light of the pervasive influence of the Catholic Church which doomed to failure any effort to reconcile Catholic doctrine with some aspects of Jewish law such as divorce. By the 1770s, however, assertions that Jews should be accorded some form of civil status had become a public debate.

As a non-Christian divorce, the Peixotto affair permitted neutral reflection with little risk for either side in the debate over divorce. ⁸⁷ The divorciares, whose principle activity coincided with the Peixotto case, were pamphleteers who challenged the prohibition against divorce. By advocating for a practice that had distinguished the Jews, the pro-divorce movement made the reason for ostracizing the Jews less compelling and made their possible acceptance more practical. Moreover, this movement, by eroding the church’s influence over divorce and seeking to centralize juridical authority, also eroded Jewish autonomy.

Unlike the Levy case which had treated the Jews as incapable of assimilation and isolated from the rest of French society, arguments in the Peixotto case advocated for the jurisdiction of sovereign courts over issues pertaining to Jewish law, even on matters of personal status. This presaged the possibility that Jews should be treated as French subjects under French law. This debate changed the approach toward the Jews from one of bare toleration of a marginal group generally excluded from French society, to inclusion in the nation. ⁸⁸

Initially, the publicity around the Peixotto case portrayed the Jews and the custom of divorce as barbaric. Examples include the work of the irreverent novelist Pidanzat de Mairobert, who dedicated a whole chapter to Peixotto in Volume IX of the Espion Anglois, Correspondence secrète entre Milord All eye et Milord All ear, originally published anonymously in 1777 under the title L'observateur anglois. In this chapter, de Mairobert took license with the person of Peixotto through an exposé on the divorce which was printed verbatim in the city pamphlets. ⁸⁹ Despite the negative publicity, the Peixotto case rapidly became central to the development of the divorciaire movement, linking the juridical status of the Jews to the issue of divorce.

Despite its complex judicial history, the facts of the Peixotto case are straightforward. Samuel Peixotto was the son of a banker from a wealthy family of the Portuguese nation in Bordeaux. The family’s business frequently took him to London and Amsterdam. In London, he was introduced to Sarah Mendes d’Acosta, the sister and daughter of bankers well known throughout Europe. The two families rapidly agreed to what appeared to be an advantageous match. On March 3, 1762, Samuel, represented by an agent of his parents, married Sara Mendes d’Acosta. The respective age of the spouses would be mutually contested by the lawyers for both parties: for Samuel, between the age of seventeen and twenty-one years, ⁹⁰ and for Sarah, between twenty-six and thirty-four years. ⁹¹ Whatever the exact ages it seemed that a great difference in age separated the bride and groom and that Samuel may not have attained his majority of twenty-one years, a fact that would become significant in the litigation. The marriage was celebrated in the Portuguese synagogue in London, after which the couple left for Bordeaux where they began to live. After five unhappy years, and despite three children, they separated. Samuel moved to Paris and Sarah lived with her mother-in-law in Bordeaux. In 1775, Samuel took the unusual step of bypassing the rabbinical court by requesting an annulment of the marriage before the Châtelet of Paris. Thus began a long judicial battle that never found a solution and ended only in 1783 with Sarah’s death. ⁹²

The litigation was divided into three phases. The first was concerned with the demand for the annulment. Peixotto invoked French law to prove the invalidity of his marriage and proclaimed himself a French subject required to comply with French law. Samuel argued that, according to the law of the realm, the union formalized in London should be considered as null for four reasons. First, the law prohibited marriages by minors, and the seduction of a minor would invalidate the marriage. As a minor of less than twenty-one years Samuel was unable to marry according to French law. The disparity in age with his spouse presumed seduction. Second, Samuel had failed to obtain maternal consent. Third, the failure to observe the forms to publicize the marriage as required by an edict of 1697 to priests and all ministers of the sacrament regarding nuptial benedictions was also required. Fourth, the absence of the authorization of the French King for a marriage of one of his subjects. Samuel, who claimed to be a subject of the French king despite being Jewish, had not obtained the king's consent. ⁹³

On December 30, 1775, the Châtelet found in favor of Samuel by default. Sarah refused to accept the decision and appealed to the parlement of Bordeaux, which upheld the decision of the Châtelet of Paris. ⁹⁴ Sarah subsequently appealed to the parlement of Paris, alleging that the Chatelet of Paris lacked jurisdiction because the couple lived in Bordeaux, not Paris. She also claimed that Jewish law supported her contention that the marriage was valid. It was at this stage that a number of famous advocates became involved in the proceeding. Louis-Simon Martineau and the prosecutor Joseph-Francois Foullon appeared for Peixotto, Duvergier (and later Guy-Jean-Baptiste Target) for Sarah, and Pierre–Louis Lacretelle for their children. Seguier, as advocate general for the parlement of Paris, would also comment as he had almost twenty years before in the Levy case.

After Sarah's appeal to the parlement of Paris, Samuel changed his strategy. In an abrupt about-face, he invoked Jewish law in order to request a divorce as opposed to an annulment, thereby initiating the third phase of the litigation. He argued that the prohibition on divorce could not apply to a marriage which was valid according to Jewish law. He asserted:

… we are Jews, my wife and I, our marriage was solemnized under the mandate of the Jewish religion and the Jewish laws, according to rules for marriage and these are the laws under which my marriage is regulated. If my marriage radically contravenes the laws of the kingdom, but is valid according to Jewish law the applicable law will be the law of the marriage itself…It would be absurd if the law of indissolubility which is the law of the kingdom imprinted its character on a marriage it did not recognize. ⁹⁵

Samuel hoped to take advantage of the relative ease of repudiation available to husbands in Jewish law. His counsel asserted that the parlement had the jurisdiction to rule on the consequences of Jewish law. His lawyers also asserted that, as the formalities of Jewish divorce had been complied with, the parlement had jurisdiction to pronounce on the civil effect of the divorce which included matters such as restitution of the dowry and the prohibition against the former spouse’s continued use of the family name.

On April 9, 1778, the advocate general Seguier delivered the judgment for the Grand Chamber of the parlement of Paris: Samuel could pursue his suit for a divorce. The two parties then found themselves back before the Châtelet with Samuel seeking to obtain a divorce and Sarah seeking to introduce a demand for a separation while keeping the marriage intact. After the exchange of pleadings and with the very active participation of Target on Sarah’s behalf, the Châtelet decided on May 10, 1779, that the two parties must appear in person before two rabbis of the Portuguese Jewish nation “who would draw up the acts that they were believed to require according to the customs of the Portuguese Jews.” ⁹⁶ After this they were to obtain a “certicat de coutume” on which the Châtelet would reserve judgment. ⁹⁷

The legal proceeding was remarkable for its contortions. In the first phase, Samuel claimed to rely on the law of the French state to annul his marriage which had been conducted according to Jewish rites. Sarah also invoked French law to defend the validity of the marriage. Subsequently, the couple totally reversed their positions. Samuel invoked Jewish law, which he had previously repudiated, to obtain a divorce while Sarah relied on the French law to preserve the matrimonial bond and to grant a separation. The divorce was brought before the parlement of Paris which, by its order of April 9, 1778, granted Peixotto a stay in his demand for the annulment and granted his right to pursue his demand for a divorce. The two parties again found themselves in front of the Chatelet. Samuel requested the execution of divorce from Sarah. Sarah, on her side, introduced a claim for a separation of bed and board. Concerned that the proceedings were not going to his advantage, and in the belief that conversion would annul his marriage, Samuel left France and went to Spain where he was baptized by the bishop of Siguenza in 1781. ⁹⁸ Even Sarah’s death in 1783 did not definitively end the affair. Samuel attempted to make a claim against Sarah’s estate by opposing the crown’s droit d’aubaine as Sarah had remained his wife despite all his efforts to the contrary.

A review of the legal arguments in the Peixotto case reveals that there had been a critical change in the jurist's attitudes since the Levy case. What began as a legal battle regarding the validity of a marriage and the right of the husband to dissolve it generated a much broader debate regarding Jewish civil status. The arguments fell into three general categories. The first category, presented by the advocate Duvergier, ⁹⁹ was the most traditional in its opposition to Jewish law and its place in the French system. Reminiscent of the Levy case, Duvergier regarded conversion as the only way to integrate the Jews. He, like Seguier, asserted that the Jews were an indigestible foreign element with barbaric customs which should not be permitted when they conflicted with the law of the land. ¹⁰⁰ The issue of divorce was a particular example of a Jewish practice which did not conform to existing French law. ¹⁰¹ While Duvergier was satisfied that the conditions Samuel presented were necessary for a valid marriage according to French law, he was not satisfied that Samuel, as a Jew, should be considered a French subject. Accordingly, Duvergier asserted that the marriage would not have been declared null according to French law because Samuel was not a French subject. Rather, like all Jews the world over, he was stateless. ¹⁰² Given the Jews’ status as foreigners, Duvergier argued that it was “absurd to render a Christian court, especially the parlement of France, a minister of the Jews.” ¹⁰³ He claimed that instead of addressing his request to Christian tribunals, such as the Châtelet or the parlement, Peixotto should address his request to “the rabbis and the elders of the community of Jews from Bordeaux.” ¹⁰⁴ Duvergier reinforced this argument with the absurdity that would result if “a Christian court admits a divorce in a case where the Jewish Sanhedrin will not admit it.” ¹⁰⁵ He argued that the Châtelet and the parlement should declare themselves incompetent to decide the issue. To Duvergier, the recognition of a Jewish divorce by a sovereign court would undermine the Catholic doctrine (on which the authority of the court was based). It would also tacitly acknowledge that the Jews were something more than étranger, a position that was untenable in a legal system which defined membership through the hegemony of Catholicism.

Duvergier’s argument went even further than refusing to recognize the Jewish custom of divorce. He also claimed that the customs such as divorce not only lacked legitimacy under sovereign law, it could not be tolerated at all because of the universal hegemony of the Catholic doctrine of the indissolubility of marriage. He asserted that Jewish customs such as divorce must be prohibited in France because the Jews of France no longer lived under the “ciel de feu” that promoted the sexual incontinence of which divorce was a manifestation: “It is clear that under a sky of fire, blood is burning, continence harder and indulgence of the legislator necessary. But the Jews who live among us, who are born under the same sky as we are do not need the laxity in the application of the law that commands us to remain with our companions…” ¹⁰⁶ This description of the practice of divorce resembles Aristotelian ideas of gender and the heated blood and constellation of humors which were thought to make women irrational beings. This characterization therefore identifies the Jews, like women, as irrational and barbaric, to be considered inherently unsuitable to participate in the polity, a universal other.

The second category of argument, asserted by Louis-Simon Martineau and Joseph-Francois Foullon in defense of Samuel Peixotto, asserted the toleration of Jewish practices which conflicted with French law by defining the Jews as foreigners, outside of French society. To Martineau and Foullon, the lettres patent which permitted the Jews to reside in France granted them the right to their specific practices no matter how odious because they were not French. ¹⁰⁷ Martineau asserted that: “The Jews are among us as travelers, we must protect these foreigners during their sojourn.” ¹⁰⁸ He assigned the Jews to the category of foreign residents or étranger that, while less than French subjects, were more than marginal vagabonds. He claimed there should be no interference with the practices of the Jews because “they are not members of the political society of the milieu in which they live.” ¹⁰⁹ As étrangers they had a clear right to maintain their own laws:

They are not members of the political society in the midst of which they live. Jews who live among us are not our citizens, France is not their homeland, as they live in a place of exile, as strangers, as members of this Republic that once had its center in Jerusalem, and is now nowhere. They have the freedom to validly marry according to their laws and customs in this kingdom or outside the kingdom. ¹¹⁰

He called for a halt to the persecution of the Jews who were the object of “envy, greed, false politics, covered with the mantle of religion” ¹¹¹ and for their protection from the harsher consequences of a marginal status such as being subject to the crown’s exercise of the droit d’aubaine which permitted the crown to seize the goods of deceased foreigners and prevented the transfer of property by inheritance. ¹¹² He also asserted that their status as étrangers included the right to autonomy. French judges could not rule on Jewish law and Jewish rabbis could not rule on French law. Ironically, this did not prevent Martineau, a non-Jew, from analyzing the issue of Samuel’s divorce in the context of Jewish law. ¹¹³

Foullon also saw the Jews as étrangers who should be permitted to practice their distinctive customs no matter how repugnant they were. He believed that although divorce was “…la loi des juifs,” ¹¹⁴ it should still be respected. He stated that French judges should “…not accuse him (the Jew) of injustice under a different law than yours.” ¹¹⁵ The Jew should “live according to his customs, he must be judged according to the same customs.” ¹¹⁶ In contrast to Martineau’s assertion, Foullon argued that French judges could make rulings on matters of Jewish law, according to the principles of Jewish law. ¹¹⁷ In support of his position, Foullon argued that the Jews had been granted the right by the lettres patentes of Henri II (1550) and Louis XVI (1777) to turn to Royal tribunals for the enforcement of their law. ¹¹⁸

The third category of argument advanced the bold argument “Il est Juif, mais il est Francais.” ¹¹⁹ Target and Lacretelle argued that the Jews should be entitled to retain their customs, provided sovereign courts had authority over all matters including issues which would require the interpretation of Jewish law. They asserted that the lettres patentes which permitted the Jews to reside in France gave them the full protection of sovereign law: “they (the Jews) live according to their customs, without being troubled by the authorities because of their manner of living.” ¹²⁰ Rationalizing French jurisprudence, Target found that, because the Jews had always been permitted to practice divorce, Jewish divorces were subject to sovereign authority. ¹²¹ Influenced by theories of natural law, he not only argued that divorce should be accepted for Jews, ¹²² but that divorce should be permitted to all French subjects. ¹²³ The Jews' religion did not separate them from being subject to the same government as other French subjects requiring them to abide by the law of the realm. ¹²⁴ In making this argument, Target distinguished the Jews from the situation of the protestants who had been prohibited from obtaining divorces before the revocation of the Edict of Nantes. Target also claimed that the consideration of divorce should no longer be a matter of doctrine, but rather should be considered on the individual merits of each case.

Lacretelle, acting on behalf of the children of the marriage, echoed Target’s approach to divorce as an aspect of natural law and pressed for a centralization of juridical authority which would include jurisdiction over the Jews in matters of divorce. ¹²⁵ Nonetheless, the claim for divorce in the Peixotto case was a divorce that was “the most arbitrary of persecutions” ¹²⁶ which scandalized the conscience of even the Jewish community. As a result, Lacretelle argued, there was a genuine question as to whether or not the divorce could be granted. On the specific merits of the case, he applied French law to Samuel's claim to invalidate the marriage. He asserted that the marriage was valid according to French law although it had been formed according to Jewish rites in a foreign country. These arguments were effective in defeating Samuel’s pursuit for an annulment according to French law.

Four years after Sarah's death, Louis XVI told his minister Malesherbes, “Monsieur de Malesherbes, vous vous etes fait Protestant; moi maintenant je vous fais Juif; occupez-vous d'eux.” ¹²⁷ In compliance with the King's order, Malesherbes undertook a massive and systematic study of the Jewish question. His study became a bellwether for the reform of Jewish status which had been accelerating over the last half of the eighteenth century and, in the opinion of some historians, was a critical precursor to the revolutionary emancipation decrees. ¹²⁸ Although he knew about the Borach Levy case and the incorporation of its judgment in the lettres patentes of 1784 on the Jews' status, Malesherbes took particular interest in the Peixotto case. He gave specific attention to the dilemma of whether the Jews could be judged by French courts. Like Lacretelle and Target, Malesherbes recognized the connection between the treatment of Jewish divorce and citizenship raised in the Peixotto case. ¹²⁹

Although Malesherbes’s research was never formally incorporated into the recommendations of a commission, it foreshadowed the arguments of deputies in the National Assembly who advocated for active citizenship for the Jews. The recurring epithet used by those who opposed granting the Jews active citizenship was that the Jews were considered a “nation within a nation.” ¹³⁰ In response, Count Stanislas-Marie-Adélaide de Clermont-Tonnerre famously asserted, “We must refuse everything to the Jews as a nation and accord everything to Jews as individuals…We must withdraw recognition from their judges; they should have our judges. We must refuse legal protection to the maintenance of the so-called laws of their Judaic organization…” ¹³¹ This assertion unequivocally reflected the claims of Target and Lacretelle in the Peixotto case. The pervasive influence of the church that had blocked Borach Levy's ability to remarry and integrate into French society was gone, as was the insistence that the Jews were foreigners whose practices were reprehensible and to whom the law of the land was inapplicable. The barriers that separated the Jews from the rest of French society had dissolved to end the limbo that had afflicted Levy. This was all the more remarkable, given that the rule in Levy's case had been incorporated into lettres patentes in 1784, only five years before the National Assembly’s debates on the Jews.

Although the advocacy of Clermont-Tonnerre and other advocates was not immediately successful, the Jews were ultimately granted active citizenship. Deprived of what they assumed they had already enjoyed, when the initial vote to grant active citizenship failed the privileged and assimilated Jews of Bordeaux launched a lobbying effort. On January 28, 1790, the assembly granted active citizenship to the Sephardic community. On acquiring this formal status, the Sephardic community disbanded its communal organization as the quid pro quo for active citizenship. The Ashkenazis were not granted active citizenship until September 27, 1791. A complementary disposition was added to the text of that decree which essentially abolished communal autonomy by removing the privileges and private laws of all Jews and highlighted the importance of juridical conformity in the Jews' new status. ¹³² Despite the vagaries of social and political sentiment, and unlike changes to the status of slaves in the colonies or women, the change in status was not simply a side effect of revolutionary zeal. It proved enduring and was not revoked until the Vichy regime disenfranchised the Jews in 1940.

The decree granting legalization of divorce was passed in 1792, although an earlier article in the Constitution of 1791 had already recognized marriage as a civil contract. ¹³³ The divorce legislation, like the decrees granting the Jews active citizenship, resulted from a transformation in the alignment of the locus of legal authority in a state no longer covered by the mantle of Catholicism and distributed in different corporate bodies. Divorce manifested the rule of the state directly over its citizens through a uniform legal code for the both public and private spheres. Divorce, as Roderick Philips wrote, “was the negation of the corporate notion, and implied the assertion of the interests of the individual over those of the familial or conjugal unit.” ¹³⁴ Seen in this light, the connection between divorce and the reform of Jewish status is more than a “patchwork quilt of historical change.” ¹³⁵ The challenge that bringing the Jewish divorces before secular courts, presided over by Catholics, posed to the authority of the Church and the autonomous Jewish community reflected a change in the basic elements of social structure. Divorces appealed outside the confines of the Jewish community provided a platform for a mutually transforming process in which the Jew strove to be part of a national identity and the nation strove to absorb the Jew. The requirement of the emancipation decrees that Jews give up their juridical autonomy and comply with French law on all areas including personal status clearly reflected the evolution of the legal arguments between the Peixotto and Levy cases. In the Levy case, even conversion could not transform a Jew into a French subject. Twenty years later in the Peixotto case, Lacretelle and Target argued that Jews were French and that divorce should no longer be prohibited for any French subject. By linking the Jewish status to divorce, these two Jewish causes célèbres bridged the space between the private sphere and the public sphere and highlighted the anomaly of the Jews' juridical status. While neither case provided the resolution any of the parties desired at the time, the legal arguments left an enduring impact. The profound changes which formed the basis of a new ideal of French citizenship were highlighted by the dilemma these cases posed.