Familiant Law – limiting number of Jewish marriages

Familiant Law (Familiant Ordnung) was one of many historical attempts to undercut the population growth of the Jewish nation. Baruch Hashem, for most of Jewish history it has been self understood that to marry, a couple (or their parents) must get hold of a ring, a rabbi, witnesses, a minyan, and go ahead with the wedding ceremony. Almost three hundred years ago in 5486-5487/1726-1727, a king thrust a spoke into the autonomous conduct of Jewish marital affairs.

Pharaoh’s Heir

King Charles VI (second-last sovereign of the “Holy” Roman Empire), who was ruler over large swathes of modern day Austria, Slovakia, and the Czech Republic, decided that Jews were multiplying too rapidly in his dying Holy Roman Empire and initiated one of the first population controls in history. Henceforth, the number of Jewish families in his country would be limited to whatever it was at present and never surpassed. This law limited the number of Jewish families to 8,451 for Bohemia, 5,106 for Moravia, and 119 for Silesia, and restricted Jews to living in the ancestral streets and houses they had inhabited until then. Jewish fecundity and mobility was committed to the deepfreeze.

Although officially known as the Familiant Law (Familianten Ord- nung), Jews called it the Pharaoh Law since its purpose was essentially the same as that of Pharaoh who decreed to throw every male child into the Nile.

This law had one fringe benefit. In order to enforce it, very accurate family records were kept in official Familianten books, and today these provide an excellent tool for genealogists and laypeople trying to trace their familial roots. This law remained in force (with minor alleviations) for over 130 years until its final repeal in 5629/1869.

How did the system work? Every existing family received a family number (familiennummern). The oldest son would inherit this number at his father’s passing, giving him sanction to marry and carry on the family name, while younger brothers could either remain bachelors the rest of their lives or emigrate. Indeed, the second alternative was such a common solution that by 5660/1900 almost half the Jews in Hungary were of Moravian or Bohemian descent.

A third alternative was to have a secret Bodenchassineh (attic wedding) without taking the trouble to apprise the authorities. This resulted in many Jews finding themselves outside the law with no way to support themselves except through begging. Eventually, certain alleviations were introduced such as increasing the family numbers or providing special permits for Jews who could prove they had sufficient funds and education to be an asset to the community at large.

According to the book, Seder Kiddushin Venisuin of Rav Avraham Chaim Freiman, the Familiant Law sparked off a panic during the first partition of Poland of 5532/1772, when huge tracts of Poland were snatched up by Russia, Prussia, and Austria. At the time, Austria was ruled by Archduchess Maria Theresa – a fanatical upholder of the Familiant Laws. She targeted Polish Jews in territories, and as a result, they feared they too might be proscribed from marrying off their younger offspring. This resulted in the “great panic” in which parents swiftly married
off children as young as five or six in anticipation of dreaded days to come.

The Halachic Angle

Years later in 5535/1795, Rav Yosef b’ Rav Moshe Pinchas – Rav of Biobrov, son-in-law of the Noda BiYehuda, discussed the panic’s dire results (Shu”t Noda BiYehuda Kama Even Ha’ezer 63).

Before exploring his discussion it is worth exploring the halachic view of the marriages of minors (ketanim). To begin with, the Ge- mara (Kiddushin 41a) states: “Said Rav Yehuda in the name of Rav. A person may not marry off his daughter when she is still a minor until she grows and says – I want so and so.” However, the Rambam (Ishus 3:19) explains that this is not an actual prohibition. Rather, Rav means that it is not fitting to do this due to the marital disharmony that might result. Under extenuating circumstances Jews could and did marry off minors.

A well known example of this trend is Tosafos’ (Kiddushin 40a) explanation of why many people were marrying off their children during his time:

“Nowadays we have the custom of marrying off our daughters even when they are minors. This is because the exile overwhelms us more every day. If a person can give his daughter a dowry today, after a while he may not be able to do so, and his daughter will remain unmarried forever.”

There is a surprising rule regarding marrying off children – hala- chically, such a marriage is generally null and void, as the Gemara categorically rules, “The rabbis did not enact marriage for a Katan (male minor)” (Yevamos 112b).

Thus, when parents married off children, nothing really happened.

Based on the above information, Rav Yosef discussed whether the
“panic marriages” ot 5532/1772 had any halachic validity or not.

“Regarding the kiddushin and nisuin at the time of the great panic before the decree against marriage was enacted… people married minors to minors and now many of them are retracting [from these marriages],” he wrote. “It actually happened in our kehillah that the father of one girl made another shidduch [for her afterwards] and some people are looking askance at this due to the first kiddushin of the minor husband.”

In Rav Yosef ‘s opinion, there was absolutely no reason to consider the first marriage as valid.

“It is true that if the sages of our time decreed that kiddushin for a minor was valid. she would require a get midrabanan,” he writes. “But there was actually no decree. Rather, the people had the practice of marrying off a minor to a minor. Therefore, this practice that involves no decree is no reason to be concerned about a rabbinical kiddushin.”

In a later teshuvah, (Mahdura Tinyana end of teshuvah 54), the Noda BiYehuda discusses these panic marriages, noting, like his son-in-law, that many of these marriages were dissolved without a get. His question was that this conflicted with the normative minhag where couples marrying before adulthood remained together for life. Why were “panic marriages” different?

“Concerning the Polish custom where they marry boys before they are bar mitzvah,” he writes, “in the days of my youth it was common practice that they made weddings in the thirteenth year and we never heard that after such a marriage [the groom] married a second time or made any type of marriage. The wedding of my older brother, Rav Yosef z”l, with the daughter of the daughter of the Av Beis Din of Ostrov was half way through Shevat and he became bar mitzvah afterwards on the twenty- second of Adar… and it never occurred to anyone that he should marry again.”

How did these marriages take effect even though the marriage of a minor is null and void?

“Did all these people err, chas veshalom, and spend all their days with their wives without chupah and kiddushin?” he asks. “One must say that because they married them with the intent to remain with them all their days, it is as if they explicitly said it should take effect once they become adults.”

If so, why were the panic weddings different?

“I think that the reason a custom arose in their days to marry a
second time was because for a few years there was a panic that permission to marry would be denied them, and they married off very small children of about six or seven years old,” he writes. “Because of this, the custom arose. However, since I left there twenty-five or twenty-six years ago, I cannot tell exactly why the custom arose. However, if the person was close to adulthood, I am uncertain whether this new custom would apply.”

It is interesting to note that in a case dating from 5544/1704 (before the Familiant Laws existed), the Shaagas Aryeh was asked about a case where a husband married at the age of twelve-and-a-half and disappeared. He ruled that since such a marriage is halachically null and void, in the case of an agu- nah one can be lenient (Shu”t Beis Ephraim Even Ha’ezer 1:42).

More Panics

Another wave of panic marriages spread through Czarist Russia after married men were exempted from the Cantonist decree in 5595/1835. This resulted in thousands of early marriages. Many of the youngsters were seized by the army regardless, and many of their young wives became agunos after their husbands lost contact.

Another wave of emergency weddings spread throughout Yemen because of an “Enactment of Orphans” promulgated during the eighteenth century, renewed in the twentieth century, and widely enforced in central Yemen during the ’20s and early ’30s of the last century. According to this law, any Jewish orphan could be legally kidnapped and brought up as a Muslim. When parents died of drought and plague, a common occurrence in those days, their children were dressed in Muslim clothes and force fed Muslim meat; no formal conversion was deemed necessary. To save such orphans, Jews sent them away or married them off at a very young age, even to much older husbands.

In the early years of the Israeli state when thousands of immigrants arrived from Yemen, Rav Yitzchak Eizik Herzog and the Chief Rabbinate enacted that from now on such young marriages must cease due to their attendant medical dangers.

So next time we sigh and kvetch over wedding expenses, we should remember the silver lining – we at least have the civil right to marry off our children when and how we please.

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