The Late Thirteenth Century: Canonistic Precedent and Legislative Intent

According to the canonist Francesco d'Albano (Franciscus Vercellensis), who wrote a commentary on the decrees of the Second Council of Lyon within a year or two of their promulgation, Usurarum voraginem was prompted by ecclesiastical concerns about the increasing presence of northern Italian moneylenders in transalpine lands.Footnote ¹² Over the course of the thirteenth century, these foreign (Christian) moneylenders, generally referred to as “Lombards” or “Cahorsins,” had established themselves first in northern France and then in England, the Low Countries, the Rhineland, and Burgundy, generally with the collusion of both secular and ecclesiastical authorities eager to tax the moneylenders' profits.Footnote ¹³ The decree, therefore, not only insisted that foreign usurers (alienigenas et alios non oriundos de terris ipsorum publice pecuniam fenebrem exercentes) be denied lodging and expelled within 3 months, but also threatened obdurate authorities with suspension, interdict, and excommunication.Footnote ¹⁴

Notably, the decree's drafters did not specify that its penalties were to apply exclusively to Christian usurers, as opposed to Jewish ones. The need for such a clarification likely did not occur to them. Although earlier councils had certainly criticized the “grave and immoderate usury (graves et immoderatas usuras)” that Jews were supposedly extorting from Christians, and although many theologians firmly denounced Jewish usury, earlier canonical bans on usury had clearly—if implicitly—concerned only Christians.Footnote ¹⁵ The Third Lateran Council's decree Quia in omnibus, for example, had ordered that all “manifest usurers (usurarii manifesti)” be refused communion and Christian burial; the specified penalties point unambiguously to Christian rather than Jewish wrongdoers.Footnote ¹⁶ These same penalties were then reiterated in Usurarum voraginem itself, which insisted in its opening lines that the earlier Lateran decree be strictly observed.Footnote ¹⁷ Late medieval canonists eagerly seized on terms or provisions bearing even a hint of ambiguity; yet for nearly a century after the decree's promulgation, no canonists even raised the possibility that it might apply not just to Christian usurers, but to Jewish usurers as well. For late thirteenth-century observers, and many later ones as well, canonistic precedent led naturally to the presumption that Usurarum voraginem applied only to Christian usurers.

Over the course of the later Middle Ages, however, the absence of explicit reference to Christian (as opposed to Jewish) usurers in the decree's text left the door open for a broader reading of its provisions. If the notion that Jews were encompassed in the language of Usurarum voraginem was unthinkable in the late thirteenth century, such an interpretation became routine by the early fifteenth. This shift resulted from the convergence of three distinct developments. First, the expulsion of Jews from kingdoms and territories in Western Europe accelerated in scope and number toward the end of the thirteenth century. This not only reshaped the landscape of Jewish settlement in Europe; it also prompted jurists and others to begin considering the circumstances in which authorities might licitly expel Jews from their territories. Practical realities, in other words, produced theoretical quandaries. Second, through its dissemination into a variety of textual contexts, from legal responsa to handbooks for preachers, the decree underwent processes of elision and decontextualization that facilitated new interpretations of its language. Finally, starting in 1320 or thereabouts, scattered but influential voices throughout the church hierarchy began to insist that the stringent anti-usury decree Ex gravi (Clem. 5.5.1), drafted at the Council of Vienne in 1311–12, applied equally to Jewish usurers. This paved the way for bishops and canonists to reconsider the reach of earlier canonical restrictions on usury, along with their associated penalties. The following sections will discuss each of these developments in closer detail, beginning with debates surrounding the expulsion of Jews.

The Early Fourteenth Century: Expulsion, Elision, and Extension

In the century preceding the Second Council of Lyon, secular authorities (starting with Philip Augustus in 1182) had sporadically expelled Jews from their jurisdictions. In general, these expulsions concerned fairly circumscribed areas and targeted relatively small numbers of Jews. In 1290, however, Edward I of England ordered the expulsion of Jews from his kingdom. Sixteen years later, Philip IV of France followed suit. Although markedly different in scale, the two expulsions were dramatic, thorough, and widely noted by contemporaries.Footnote ¹⁸ Moreover, they also prompted canonists and theologians to grapple with the licitness of expelling Jews.

Immediately following the expulsion of Jews from France in the summer of 1306, for example, the Cistercian theologian Jacques de Thérines (d. 1318) responded to a quodlibetal question on “whether Jews expelled from one region ought to be expelled from another.”Footnote ¹⁹ In presenting the affirmative case, Jacques argued that Jews expelled from one region on account of usury could be expelled from another on the presumption that they were likely to resume their usurious ways, even if no new transgressions had yet been proven. Ultimately, however, Jacques opposed further expulsions: the fact that the Jews had previously broken the laws of another jurisdiction did not in itself establish a legitimate presumption against them such that they could be expelled from their new homes without proof of renewed wrongdoing. In one sense, Jacques's conclusion was in keeping with church tradition; namely, that authorities should not arbitrarily expel Jews from their lands. Yet the framing of the quodlibet implicitly raised the possibility that Jewish usury—if proven—might be sufficient reason for expulsion.Footnote ²⁰ Two leading canonists of the early fourteenth century, Oldrado da Ponte and Pierre Bertrand, also tackled the topic of Jewish expulsion. Although neither one singled out usury as acceptable grounds for expulsion, they acknowledged that Jews who rebelled against the prince's authority or abused the “privilege” of alien status could be justly expelled.Footnote ²¹ The presumption remained firmly against expulsion, but it was not categorically forbidden.

Jacques de Thérines's quodlibet points to an additional shift in contemporary attitudes toward Jews: an increased propensity among canonists to forbid Jews from lending at interest. Already in the mid-thirteenth century, the papacy had claimed jurisdictional privileges over Jews (even in matters not directly pertaining to their relations with Christians).Footnote ²² As church thinkers moved further and further in this direction, so too did the traditional canonical toleration of moderate Jewish usury give way to increasingly stringent condemnations thereof, with fewer and fewer distinctions drawn between Jewish and Christian usury. Exemplary in this regard is a responsum on usury from late 1314 by the Dominican Pierre de la Palud (d. 1342), who was not only an accomplished theologian and canonist, but also a papal diplomat, a French courtier, and, eventually, patriarch of Jerusalem.Footnote ²³ In Article IX, the longest section of the responsum, Pierre covered a range of topics, from the extortion of money from usurers (which he firmly opposed) to competing ecclesiastical and secular claims for jurisdiction over usury (on which he adopted a moderate position).Footnote ²⁴ What is most important here is that Pierre's conclusions all dealt jointly with Jewish and Christian usurers, and that in reaching those conclusions, he turned repeatedly to Usurarum voraginem, alongside a handful of other texts. Although he nowhere argued that the decree itself was to be applied to Jews, he nevertheless used it to construct general arguments concerning usury, even where these concerned the proper treatment of Jewish and Christian usurers alike. The decree thereby bolstered the author's anti-usury arsenal, but at the cost of concealing its specific targets and eliding its particularities.

The elision appears even more pronounced in the Summa praedicantium, an immensely popular handbook for preachers composed by the English Dominican John Bromyard in the second quarter of the fourteenth century. In section 27 of the entry on usury, Bromyard laid out penalties for those who welcomed public usurers (publicos usurarios) into their lands or rented houses to them.Footnote ²⁵ To begin with, he quoted verbatim the entirety of Usurarum voraginem, followed immediately by a citation of Thomas Aquinas's De regimine judaeorum, which, as Bromyard noted, concerned “the dangers of harboring such persons in their lands (de periculo tenentium tales in terris).” Turning to the issue of renting houses, Bromyard then declared that it was “not permitted to rent houses to such persons (non licet eis domum talibus locare).” Grammatically speaking, “such persons (tales/talibus)” presumably referred to the “public usurers (publicos usurarios)” of the opening rubric. But given that he glided from a citation of Usurarum voraginem, with its clear reference to foreign usurers, to Aquinas's De regimine, which focuses almost entirely on Jewish usurers, it is hard to know exactly who was encompassed in Bromyard's understanding of these “public usurers.” Insofar as his immediate audience was concerned, the question was moot; England's Jewish community had been expelled more than half century earlier. To later Continental readers of his work, however, Bromyard's summary could easily have been taken as an invitation to drive Jewish moneylenders from their houses and lands.

Concrete efforts to treat Jewish usurers under the same canonical framework as Christian ones were particularly spurred by the widespread dissemination of the decree Ex gravi (Clem. 5.5.1) starting in 1317.Footnote ²⁶ Among other provisions, the decree called for the immediate abrogation of all statutes that permitted the taking of usury, and threatened excommunication for anyone who enforced a usurious contract. Moreover, it declared that those who pertinaciously affirmed that usury was not a sinful practice would be considered heretics and were to be prosecuted accordingly. As in Quia in omnibus and Usurarum voraginem, the text of Ex gravi did not spell out a distinction between Jewish and Christian usurers. But as noted earlier, Quia in omnibus had unmistakably indicated its Christian focus by spelling out penalties for usurers that could only have applied to the faithful (refusal of Christian burial and so forth), penalties that Usurarum voraginem in turn reiterated. In contrast, most of Ex gravi's threats focused not on the usurers themselves, but on those who regulated, enforced, or defended usurious loans. It was usury, rather than usurers, that lay in Ex gravi's crosshairs.

What if these usurious loans were being extended by Jewish moneylenders? Were Jews also encompassed within Ex gravi's general condemnation of usury? As mentioned earlier, the weight of the church's legal tradition had consistently recognized the right of Jews to lend at interest (as long as it remained moderate). To insist that their moneylending was canonically forbidden, and to denounce the opposing view as heretical, would have marked a sharp break with established precedent.Footnote ²⁷ On precisely such grounds, Giovanni d'Andrea (Johannes Andreae; d. 1348) and other leading canonists opposed including Jews within Ex gravi’s reach.Footnote ²⁸ Other canonists proved less willing to defer to tradition. Giovanni d'Andrea's own student Paolo Liazari (Paulus de Liazariis; d. 1356), for example, concluded that the decree did in fact apply to Jewish usurers, as did the canonist (and briefly bishop of Bologna) Étienne Agonet, writing ca. 1325.Footnote ²⁹ An episode in Spain is particularly revealing. In 1313, the bishops gathered at a provincial council in Zamora, on the eastern frontier of León, issued a raft of stridently anti-Jewish canons. One of these declared that Pope Clement V had issued legislation at the recent council in Vienne forbidding Jews from lending at interest to Christians.Footnote ³⁰ A few months later, however, the Cortes of the kingdom of Castile refused to countenance such a reading of the decree, instead citing Ex gravi's provisions against Christian usury while explicitly allowing Jews to continue charging moderate interest.Footnote ³¹ Although the Castilian bishops were willing to break with canonical tradition, the Castilian nobility apparently was not.

Most of the fourteenth-century popes seem to have kept to the narrower reading of Ex gravi, rarely insisting on its enforcement in cases involving Jewish usurers. The exception, however, was John XXII, an eminent canonist who oversaw the promulgation of Ex gravi as part of the Clementine constitutions. In December 1320, for example, John XXII wrote to the rector of the March of Ancona, then part of the Papal States, in response to concerns about the indebtedness of the townsfolk of Macerata. The local Jews claimed that they were not bound by the provisions of Ex gravi or the other anti-usury decrees, but the pope dismissed the Jews' objections and ordered that they be compelled to observe the canons.Footnote ³² On other occasions, John XXII sought to impose this expansive reading even outside his temporal domains, especially where the Jewish communities of the Rhineland were concerned.Footnote ³³ In 1325 and 1326, for example, he wrote three letters to the archbishops of Cologne and Trier.Footnote ³⁴ The pope began by citing reports of local Jews who were exacting “heavy and immoderate usury (graves et immoderatas usuras),” drawing his language directly from the Lateran IV decree Quanto amplius.Footnote ³⁵ Citing “the constitutions of the sacred councils and the Apostolic See promulgated against usurers,” the pope encouraged the archbishops to enforce these laws against Jews living within their jurisdictions.

It bears noting that in his letters to the archbishops, John XXII did not specify which anti-usury canons were to be applied; that choice was apparently left to the recipients' discretion. No doubt the recently promulgated and widely discussed Ex gravi would readily have come to mind. But what about Usurarum voraginem? No evidence survives to suggest that either archbishop ever contemplated enforcing the Lyonese decree against Jews under his jurisdiction. Furthermore, if any of John XXII's fourteenth-century successors believed that the decree's provisions applied equally to Jewish usurers, they made no attempt to enforce them accordingly. In general, even as popes, bishops, and canonists raised the possibility that Ex gravi and other anti-usury canons might apply to Jews and Christians alike, the prevailing interpretation of Usurarum voraginem seems to have held firm throughout the first half of the fourteenth century among both authorities and jurists.

The Late Fourteenth Century: Sidestepping Expulsion

The noted Bolognese canonist John of Legnano (d. 1383) appears to have been the first jurist to declare explicitly that the provisions of Usurarum voraginem were to apply to Jews, in a consilium composed some time in the third quarter of the fourteenth century.Footnote ³⁶ The consilium, which survives in dozens of manuscript copies across Western Europe, consists in large part of a methodical discussion of the proper treatment of Jews according to canon law.Footnote ³⁷ Turning his attention to the topic of usury, the canonist first asks in what ways the church was to proceed against usurers, and then, whether any of these pertained to Jews. Obviously, he noted, the penalties of Quia in omnibus that were to fall on manifest usurers—namely barring them from communion at the altar, denying them ecclesiastical burial, and refusing their oblations—did not apply to Jews. Nor, John argued, did the threat of excommunication apply to them, as those who had never been within the body of the church could not be driven out from it. Similarly irrelevant was Quamquam's threat of withheld absolution for usurers who failed to make appropriate restitution on their deathbeds. What about Usurarum voraginem? According to the canonist, the decree ordered that dwelling places should be neither rented nor leased to foreigners for the purposes of usury, and that manifest usurers should be driven out (excluduntur usurarii manifesti). These penalties, he argued, could indeed apply to Jews (huius poenae sunt capaces iudaei).Footnote ³⁸

For the first time, then, there is evidence of a canonist—and a highly regarded one, at that—declaring that Jewish usurers were subject to Usurarum voraginem's provisions. Nowhere in his consilium does John of Legnano explicitly indicate that he considered his interpretation of the decree to be especially novel or controversial. Admittedly, consilia were generally written to support a particular side of a case and could by necessity depart from established legal opinion on a given issue. It is also possible that he was simply among the first to publish an opinion that was already circulating among the jurists at Bologna. On the other hand, there is some evidence that John of Legnano may have been working in haste, as part of his consilium rests on a careless reading of the decree. Perhaps he himself was unaware of the novelty of his interpretation.Footnote ³⁹

In summarizing the decree's provisions, however, the canonist tellingly does not repeat their use of the word expellere, which conveyed quite directly the meaning of a physical and spatial expulsion, and which was accordingly laden with legal and historical weight when used in conjunction with Jews. Rather, he uses the term excludere, a term that could certainly denote outright expulsion but that also carried a much broader range of possible meanings in a canonistic context, including social exclusion. John of Legnano's choice of words might well reflect a certain awareness that his interpretation of Usurarum voraginem was skirting the edges of canonistic precedent. At the very least, it meant that readers could construe his consilium as arguing not that Jewish usurers should be expelled (for expulsion was nowhere discussed outright), but rather that they should be shunned from Christian homes and social contexts, an argument much more in keeping with canonistic tradition.

If John of Legnano was wary of asserting that Usurarum voraginem did in fact require the expulsion of Jewish usurers, it was a wariness that he seems to have shared with many later commentators on the decree. As a rule, this wariness expressed itself through a focus on Usurarum voraginem's prohibition on the renting of houses to usurers, rather than its call for expulsion. Toward the end of the fourteenth century, for example, a jurist (possibly Baldo degli Ubaldi) published a consilium on “whether someone who rented a house to a Jew was to be excommunicated (An locans domum Iudeo sit excommunicatus).”Footnote ⁴⁰ The author first observes that Roman law allows for Christians and Jews to have commercial relations with one another, but then observes that any Christian who rents a house to a Jew for the purposes of lending at interest would seem to be automatically excommunicated according to Usurarum voraginem. After sorting out various questions of proof and culpability, the author finally concludes (based on the decree's distinction between clerical and lay transgressors) that a cleric who rents a house to Jewish usurers is automatically excommunicated, whereas a layman who does the same does not automatically incur the penalty, although he could be excommunicated following due process. The crucial point, for our purposes, is that the author of the consilium considered Usurarum voraginem's housing ban applicable to Jews, but avoided any mention of its expulsion provision.

Other contemporaries adopted similar approaches, among them the anonymous late fourteenth-century author of the Thesaurus novus, a widely disseminated sermon cycle. In a sermon “On the Jews,” the author insisted that Christians were not to rent houses to Jewish usurers, even though in a separate sermon “On usurers” found in the same collection, a list of the penalties falling on usurers made no reference to Usurarum voraginem or its sanctions.Footnote ⁴¹ The anonymous author therefore drew on the decree's provisions in regard to Jewish usurers, but ignored them where both Jewish and Christian usurers were concerned.Footnote ⁴²

The reach of these debates extended well beyond university classrooms and church pulpits. In 1396, for example, members of the Florentine commune proposed that Jewish moneylenders be invited to settle in the city, and it is likely that this was the context for a consilium solicited by the city's government on whether Usurarum voraginem was to apply to Jews. The author of the consilium apparently concluded that they were not subject to the decree's provisions, but the commune ultimately seems to have shown little enthusiasm for welcoming these moneylenders to the city.Footnote ⁴³ Ten years later, the city seems to have rejected the consilium's conclusions outright, decreeing that “no Hebrew or Jew, regardless of whence he came, could…lend at interest” anywhere within Florentine dominions.Footnote ⁴⁴ Although the ordinance did not cite Usurarum voraginem directly, the reference to the Jews' places of origin—echoing the decree's distinction between local and foreign usurers—suggests that the Florentine commune did in fact consider Jews to be subject to its provisions.

The Early Fifteenth Century: Sidestepping Intent

Early in the fifteenth century, Domenico da San Gimignano (d. 1424) would become the first jurist to discuss at length the application of Usurarum voraginem's provisions to Jews, as part of his systematic commentary on the Liber Sextus.Footnote ⁴⁵ He lists first several arguments against such an interpretation, observing, for example, that the decree arises from a desire to protect souls that are being devoured by usury, but that the pope need not compel Jews to be mindful of the health of their souls. Ultimately, Domenico concludes that the housing ban does apply to Jewish usurers, but only to foreign-born ones. The most persuasive of his arguments notes that the decree “speaks generally of those born elsewhere (loquitur de genitis alibi simpliciter),” which could be understood as much in reference to Jews as to anyone else. Furthermore, he contends, whenever dispositions are phrased in such general terms elsewhere in the canons, Jews are implicitly included insofar as the material itself concerns them. It is striking, however, that Domenico limits his discussion of whether Jews are to be included within the conception of “alienigenas…” to the clause concerning the rental of houses. At no point does he openly push his analysis toward its logical conclusion: that if foreign-born Jews were subject to the housing ban, similarly to their Christian counterparts, then so, too, were they to be expelled.

There is another striking absence in Domenico's treatment of Usurarum voraginem. As mentioned earlier, the late thirteenth-century canonist Francesco d'Albano had noted that the decree's drafters had promulgated it in response to the growing Lombard presence across the Alps. Around 1340, Giovanni d'Andrea then incorporated d'Albano's explanation into his second systematic commentary on the Liber Sextus, the so-called Novella, which enjoyed widespread circulation throughout the late fourteenth and fifteenth centuries.Footnote ⁴⁶ Given that the Novella's discussion of Usurarum voraginem opens with this account of the drafters' aims, it was all but impossible to miss. Despite frequently citing the Novella in his commentary on Usurarum voraginem, however, Domenico nowhere mentions the context for the decree's promulgation. To have done so would have severely undercut his argument for extending the decree to Jews, because although late medieval jurists did not consider intentio to be strictly binding, they accorded it considerable weight.Footnote ⁴⁷ It was a staple of medieval jurisprudence that the intention or purpose of a text took interpretative precedence over the strict meaning of its words, insofar as these did not align. Gratian had held (quoting Gregory the Great) that intention was to illuminate the words of a text, rather than the other way around. Variations on this theme are scattered across the landscape of late medieval legal writings.Footnote ⁴⁸

It might well have been possible for Domenico to reach the same conclusion even after squarely considering the drafters' aims, for example by distinguishing between the specific motive (i.e., concerns about northern Italian moneylenders) and the general motive (e.g., the decree's stated desire to suppress usury). Yet he made no effort to do so. It is difficult to see Domenico's silence as anything other than a deliberate effort to ignore—and thereby suppress—a devastating counter-argument. Moreover, all of the fifteenth-century canonists who followed Domenico's lead in extending Usurarum voraginem to Jews likewise avoided any mention of the decree's aims, even while they otherwise cited Giovanni d'Andrea's Novella. Footnote ⁴⁹ All of this suggests a widespread and wilfull desire among many canonists to extend Usurarum voraginem's provisions to Jews, even if this meant disregarding (or rather, conveniently overlooking) a basic tenet of late medieval legal interpretation.

At the same time, those canonists who embraced Domenico's position on the decree's reach also maintained his focus on the housing ban rather than on the question of expulsion. The continuing weight of the church's traditional opposition to expulsion is particularly evident in two consilia concerning Jewish usurers written in the latter half of the 1440s by the Dominican Siegfried Piscator (d. 1473), who had been trained in canon law at Bologna and briefly served as auxiliary bishop of Mainz. Where the housing ban was concerned, Piscator confidently asserted that the legal sanctions of Usurarum voraginem could be applied to those renting houses to Jewish usurers. Where the Jews' expulsion was at stake, however, he concluded that the decree established only a moral presumption rather than a legal requirement.Footnote ⁵⁰

Canonists differed on other points as well, with some maintaining that the decree applied only to foreign-born Jews, some treating all Jews as inherently “foreign,” and others ignoring the restriction to foreigners altogether.Footnote ⁵¹ Furthermore, not all fifteenth-century canonists followed Domenico in extending Usurarum voraginem's reach to Jews. Floriano Sampieri (d. 1441), who, like Domenico, was a professor of law at Bologna, argued that the decree did not apply to Jewish usurers, although his reasoning does not survive.Footnote ⁵² Other canonists ignored the debate altogether. For the most part, however, those who took up the question of the decree's reach held that Usurarum voraginem forbade Christians from renting houses to (in some cases, foreign) Jewish usurers, while avoiding the question of the drafters' intent and sidestepping entirely the decree's expulsion provision.

Such repeated and collective reluctance to grapple with expulsion bears out Kenneth Stow's observation that “for all that jurists were moving toward justifying expulsion, they were also hesitant.”Footnote ⁵³ It was one thing to call for Christians to cease renting houses to Jewish usurers; after all, canon law laid out numerous other restrictions on appropriate relations between Christians and Jews. But to explicitly call for their expulsion would have been a much bolder—and boldness is not a characteristic generally associated with fifteenth-century canonists.

Boldness was, however, a marked characteristic of contemporary preachers, especially among the mendicant orders. In Germany, for example, the middle decades of the fifteenth century saw traveling preachers repeatedly urge civic authorities to expel Jewish residents, warning them that canon law forbade them from harboring Jewish usurers. Their words often bore fruit, even over the protests of bishops and other voices.Footnote ⁵⁴ In Italy, such anti-Jewish preaching campaigns are especially associated with the Observant Franciscans, as exemplified by the indefatigable and indomitable Bernardino da Siena. One can only wonder whether Usurarum voraginem was among the canons that Bernardino supposedly read aloud in Vicenza in 1443, when—according to a later report—he carried some volumes of canon law up to the pulpit and used their contents to insist upon the expulsion of the local Jews.Footnote ⁵⁵ At the very least, he repeatedly asserted that the decree's housing ban was to be understood with reference to Christian and Jewish usurers alike. In his first Padua sermon of 1423, for example, Bernardino posed the question of whether it was a sin to rent houses to Jews, then declared that it was indeed a mortal sin to rent houses to either Jews or Christians for the purposes of usury.Footnote ⁵⁶ He reiterated this point in a subsequent sermon, then proceeded to spell out Usurarum voraginem's articulated hierarchy of sanctions as they pertained to prelates, religious communities, and other classes of offenders. In each case, the specified sanction—whether suspension, excommunication, or interdict—was framed as the consequence of renting houses to Jewish or Christian usurers. Furthermore, in each case he omitted any reference to foreignness, whether in regard to Christians or Jews.Footnote ⁵⁷ Speaking from the church pulpit, rather than from the academic lectern, Bernardino perhaps felt freer to play fast and loose with the niceties of canon law, in which he was well versed. But the result for Bernardino's Paduan audience, and for many others as well, was for Usurarum voraginem's reach to become broad indeed.

The Mid-Fifteenth Century: Popes, Princes, and Interpretative Instability

As for the papacy, it is not until 1429, during the reign of Martin V (r. 1417–31), that one finds a pope offering an opinion on the question of Usurarum voraginem's reach. Troubled by the rabble-rousing antics of Bernardino da Siena and his fellow Observant preachers, Martin promulgated a bull ordering them to stop stirring up the masses against Jews.Footnote ⁵⁸ Contrary to some of the sweeping claims made by the preachers, the pope insisted that Christians and Jews were permitted to interact with one another, “except in those cases prohibited by law (preterquam in casibus a iure prohibitis).” Christians and Jews were also allowed to engage in trade with one another, so long as it was done “in a licit and honest fashion (licite tamen et honeste).” Furthermore, declared the pope, Jews were allowed to buy, sell, and rent any homes and landholdings from Christians. Although the bull does not cite Usurarum voraginem (or any other canons), the decree's disputed interpretation was likely the basis for the pope's decision to address the topic of housing head on. To judge from his response, neither the canonistic arguments of Domenico da San Gimignano nor the increasing weight of homiletics and other writings were sufficient to shift the pope away from the traditional, narrow reading of the decree.

Five years later, with a new pope on the throne of St. Peter, the tide had apparently turned. When the Mirandola brothers brought their petition to Pope Eugene IV, asking whether Usurarum voraginem's provisions applied to Jews, the pope concluded that they did. Moreover, Eugene insisted on the Jews' expulsion, thereby going well beyond the arguments of Domenico and others, which had focused exclusively on the decree's housing provision. Nor was this an isolated instance. Three years later, in 1437, a similar case came to Eugene's attention. The provost of a church in Parma had apparently permitted some Jews to use his house for the purposes of moneylending, and as a result of this and other sins, he had been struck with a sentence of excommunication. The fate of the Jewish moneylenders is not mentioned in the papal response; perhaps the provost had already evicted them from his house. The pope simply ordered that the provost be absolved, provided that he did proper penance.Footnote ⁵⁹ Here again, however, it is clear that Eugene—or those acting in his name—considered Usurarum voraginem to apply to Jews.

Soon thereafter Eugene changed his mind. In the winter of 1439–40, a group of prominent Franciscans asked Eugene to clarify whether or not Usurarum voraginem applied to Jews. In his response, dated January 10, the pope replied that it did not. The grounds for his decision were straightforward: citing Giovanni d'Andrea's Novella, the pope observed that the decree had been promulgated as a response to the Florentines and Pistoians and others who were traveling around and lending at interest. He accordingly ruled that neither the penalty of excommunication for those renting houses to foreign usurers, nor the penalties for rulers who failed to expel them from their lands, were to be understood in reference to Jews (non intelligatur si permittunt habitare iudeos).Footnote ⁶⁰ If Eugene was willing to defer so easily to legislative intentio in 1440, however, why had he concluded otherwise on the two earlier occasions? Had he made his previous decisions solely on the text of the decree itself, without consulting its leading commentaries? Had he consulted only the commentaries of Domenico da San Gimignano or his followers? Had he come to fear that his earlier, perhaps overhasty, decision might have unintentionally signaled a change in established papal policy vis-à-vis the expulsion of Jews? Or had he delegated the earlier decisions to curial officials, and was only now devoting sustained attention to the issue? Regardless of his motivations, the legal force of this revised papal ruling is unclear.Footnote ⁶¹ Moreover, although the text survives in several manuscripts, it seems to have gone unnoticed by contemporary canonists, garnering renewed attention only in the early sixteenth century.Footnote ⁶² Even Antoninus of Florence, whom the pope may have consulted on the matter, does not mention it in any of his writings on Usurarum voraginem.Footnote ⁶³

In other words, by the time Eugene's successor Nicholas V ascended the papal throne in 1447, a variety of opinions were swirling around. Some canonists and authorities held that Usurarum voraginem applied to Jews; others disagreed. Some maintained the decree's distinction between locals and foreigners; others omitted it entirely. Some focused exclusively on the housing ban; a handful drew attention to the penalty of expulsion. And some—like Pope Eugene—went back and forth. In general, Nicholas V seems to have considered that the renting of houses to Jewish usurers was indeed forbidden (or at least required papal dispensation), but none of the extant evidence suggests that he had especially strong views on the matter. After an initial burst of intransigence inspired by the Observant Franciscan preacher Giovanni da Capestrano (1386–1456), he seems to have been relatively accommodating insofar as Jewish moneylending was concerned.Footnote ⁶⁴ In dispensations granted to Leonello d'Este of Ferrara in 1448, and then to Leonello's half-brother Borso in 1451, Nicholas V specifically allowed the rulers to continue renting houses to the Jewish usurers whom they had welcomed into their lands.Footnote ⁶⁵ The same is true of the dispensation he granted to Frederick III of Germany, likewise issued in 1451, although in this case the Jews do not seem to have been recent arrivals.Footnote ⁶⁶

Nicholas V also proved willing to override the efforts of zealous bishops to apply Usurarum voraginem's penalties to communities harboring Jewish moneylenders. In Mantua in 1449, for example, the local bishop laid a sentence of excommunication and interdict on Ludovico Gonzaga and his subjects for having rented houses to Jewish moneylenders (in addition to various other misdeeds), and Ludovico had to send a high-profile embassy to Rome to secure a papal dispensation allowing the Jews to remain.Footnote ⁶⁷ Two years later, Soave, a town in the diocese of Verona, apparently found itself in similar circumstances; here again the pope allowed the people of Soave to continue renting houses to Jewish moneylenders, although he required them to make suitable penance.Footnote ⁶⁸ Also in 1451, the bishop of Lucca promulgated an episcopal statute automatically excommunicating anyone who rented a house to a usurer, with no distinction drawn between Christian and Jewish lenders (and apparently no distinction between local and foreign usurers, either).Footnote ⁶⁹ The municipal leaders of Lucca turned to Nicholas V for advice, and in August 1452, the pope absolved the city from any ecclesiastical sanctions that they had thereby incurred and allowed the Jews to continue lending at interest and renting houses for that purpose. Furthermore, Nicholas explicitly abrogated the bishop's statute and granted a dispensation from Ex gravi, with its ban on civic tolerance of moneylending.Footnote ⁷⁰

At the same time, however, officials within the Apostolic Penitentiary—many of them experts in canon law—were apparently quite willing to interpret Usurarum voraginem's provisions as applicable to Jewish moneylenders. Sometime before January 1452, for example, Arnold von Brende, a canon (and later archdeacon) of Würzburg, with the consent of his chapter, had welcomed “perfidious Jews, who are rightly deemed foreign and manifest usurers (perfidi Judei qui bene alienigene ac manifesti usurarii censentur)” into the city of Würzburg for the purposes of lending publicly at interest. Although he had not realized it at the time (tunc ignarus), he had since learned that this was forbidden by law (iure prohibitum sit). His realization was likely a consequence of the aggressive campaign that the papal legate Nicholas of Cusa had led against Jewish usury in Würzburg and elsewhere earlier that year.Footnote ⁷¹ Arnold duly petitioned the Apostolic Penitentiary for absolution from the sentence of excommunication and the irregularity he had incurred thereby, a request that was duly granted.Footnote ⁷² Although Arnold's request was handled within the Apostolic Penitentiary and did not escalate to Nicholas V himself, it is nevertheless indicative of the interpretative instability surrounding the decree's provisions that papal officials could implicitly confirm a reading of the decree that Eugene IV had explicitly condemned a decade earlier.

There is evidence, then, for a handful of petitioners (such as the Mirandola brothers, the Franciscan friars, and the Anziani of Lucca) writing to the pope in search of clarification on the proper interpretation of Usurarum voraginem's provisions. In the other cases, the decree's applicability to Jews was taken as self-evident, and the pope was merely asked to offer absolution from ecclesiastical sanctions and, in some cases, permission to continue harboring Jewish moneylenders.Footnote ⁷³ Strikingly, however, these other cases generally make no specific reference to Usurarum voraginem or its expulsion provision. The presumed unlawfulness of renting houses to Jewish usurers had become so accepted among fifteenth-century German and Italian authorities that it had taken on a force of its own, quite distinct from the decree itself. The illegality was taken as self-evident, hardly requiring an explicit legal footing, and certainly betraying no trace of its contentious interpretative history.

Over the next half-century, the question of Usurarum voraginem's applicability to Jews would continue to arise from time to time. In the winter of 1471–72, the Piedmontese town of Chivasso endured the repeated harangues of a Franciscan preacher, who urged landlords to evict Jewish moneylenders from their homes on pain of excommunication, and also pushed for the general expulsion of Jews from the town.Footnote ⁷⁴ Two decades later, the civic leaders of Frankfurt petitioned the pope for a dispensation allowing them to rent houses to Jewish moneylenders, free from the threat of ecclesiastical sanctions.Footnote ⁷⁵ The issue also continued to exercise the minds of canonists, at least on occasion. In a consilium on usury written circa 1469, Angelo di Castro (d. 1485) argued that just as the church did not concern itself with the sins of infidels, it ought not to concern itself with the sins of Jews either. The threat of excommunication against Christians renting houses to Jewish usurers ought therefore to be considered invalid.Footnote ⁷⁶ His contemporary Alessandro Nievo (1417–84) then vigorously condemned this position in his four Consilia de usuris.Footnote ⁷⁷ In general, however, the question of renting houses to Jewish usurers—and of the interpretation of Usurarum voraginem's provisions more generally—gradually faded into the background, casualties, perhaps, of newly emerging arguments concerning the exclusion and expulsion of Jews.Footnote ⁷⁸