The Laws of Moses and the Laws of the Emperor: Austrian Marriage Legislation and the Jews of Galicia

No issue symbolizes Galician Jewry’s failure to internalize Austrian legal and civil norms more than that of marriage and divorce. Large numbers of Galician Jews married clandestinely in accordance with Jewish law but in violation of Austrian law, and the Austrian authorities, although aware of the problem, could do little to stop them. The children in such marriages carried their mother’s last name and were considered illegitimate under Austrian law. This phenomenon, which spanned decades, has occasionally received inaccurate and even mistaken explanations.¹ The aim of this chapter is to examine how the application of Austrian marriage and divorce laws to Habsburg Jewry developed, and the particular impact of these laws on Galician Jewry. The laws may be divided into two groups: legislation that applied throughout the Habsburg empire and political laws (local ordinances) that applied to Galician Jews. The first group stipulated various requirements pertaining to the marriage itself; the second, conditions or requirements regarding marriage that were imposed in order to fulfil other purposes. As we shall see below, this division affected the way many Galician Jews viewed the law of the land. Beginning with Empress Maria Theresa, the legal policy concerning Jewish marriage and divorce was shaped and remoulded, at times indicating consideration of Jewish concerns and at other times revealing discrimination and prejudice.

Marriage and jewish demography

One of the issues Austria had to deal with after it annexed the south-eastern part of the Polish–Lithuanian Commonwealth and renamed it the Kingdom of Galicia and Lodomeria (1772) was the treatment of its new Jewish population. There are different statistics regarding the number of Galician Jews at the time of annexation, ranging from 224,981 according to the 1772 conscription census to 163,796 according to a report from 1773.² The conscription lists for the year 1776 give 35,881 Jewish families, consisting of 74,276 males and 73,322 females (147,598 individuals), as opposed to 501,302 Christian families.³ While the different statistics are not accurate, even the lowest estimate more than doubled the Austrian monarchy’s existing Jewish population, a fact that was viewed by Austria as a demographic problem. Moreover, Galicia was seen as a backward territory, and its Jewish population as culturally inferior and morally corrupt. Indeed, the policy towards Galician Jews from the time of annexation until the promulgation of the constitution in 1867 rested on two principles: reducing their rate of increase and implementing means aimed at their moral, religious, and cultural ‘improvement’.

Austrian officials thought that what they viewed as an unusual fertility rate among Galician Jews was the result of early marriage. They were convinced that the rapid increase of the Jewish population was responsible for the widespread poverty in Galicia. In an effort to control the situation, Austrian officials suggested a policy that would make Jewish marriages difficult. Court officials assumed that the introduction of a requirement for marriage licences and the imposition of all kind of qualifications for receiving them would cause Jewish couples to delay their marriage and as a result reduce procreation and arrest population growth. On 8 March 1773 Anton Pergen, the first governor of Galicia, published an ordinance prohibiting Galician Jews from marrying in or outside Galicia, under threat of confiscation of all assets as well as physical punishment, without first obtaining written permission to marry from the local government and paying the prescribed tax. The heads of all synagogues were made responsible for carrying out this ordinance.⁴

In her Galician Jewish ordinance of 1776, Maria Theresa mostly left the pre-partition Jewish religious autonomy in place, while at the same time adding tighter hierarchical state control. The attitude to Jewish marriages in the ordinance was different from all the other issues discussed in it, representing again what the Austrian administration viewed as a demographic threat posed by Jews.⁵ The section on Jewish marriages began with a declaration that no Jew would be allowed, under the threat of punishment, to marry before he calculated the value...