Edgardo Mortara Should Not Have Been Taken from His Parents
In June 1858, a six-year-old Jewish boy named Edgardo Mortara was seized by the police of the Papal States and removed from his family to be raised as a Catholic after his former nanny testified to Church authorities that she had secretly baptized him. There was an international outcry, and Pope Pius IX refused to return Mortara to his family on the grounds that he was a Catholic who, under the law of the Papal States, must be educated in the faith by a Christian family or the Church. The case resurfaced in 2018, when Fr. Romanus Cessario, OP, published an article in First Things defending Pius IX’s actions and framing opposition to the case as a matter of acquiescence to liberal views of religious liberty. This in turn provoked numerous replies, including articles in Public Discourse by Robert Miller and me.
Fr. Cessario’s article also prompted Matthew Tapie, professor of theology and director of the Center for Catholic–Jewish Studies at St. Leo University, to transcribe and translate the major documents of the case. Tapie has published these in English for the first time, along with a theological analysis of whether Aquinas was interpreted correctly in the dispute and in contemporary debates over the emergency baptisms of infants invitis parentibus (against the will of their parents). These texts are essential for understanding the Mortara case and its theological implications. After this intensive study, Tapie’s conclusion is my own: for Thomas Aquinas, parental authority is a natural right that cannot be violated for the sake of divine law. Even if he had been validly baptized, Edgardo Mortara should not have been taken from his parents.
After reviewing Fr. Cessario’s article and the responses to it, Tapie offers an analysis of the key documents of the Mortara case. In 1864, the Mortaras submitted to the Vatican their two-part plea to have their son restored to them. The Pro-memoria is a memo stating the facts of the case and making a general theological argument for the return of Edgardo to his parents. The Syllabus contains excerpts from theologians, canon lawyers, and popes backing up this conclusion. Both documents cite Aquinas extensively to argue that Mortara must be returned to his parents because the Church does not permit the baptism of children of unbelievers without their parents’ consent, and if they are baptized, then such baptisms are invalid. Without the parents’ will, they argue, the intention of the recipient is missing. Just as a sleeping person is not validly baptized, so a child is not validly baptized without parental consent. And if Mortara’s baptism is invalid, the Church has no right to seize him and raise him as a Catholic.
In their reply, Brevi cenni, the papal counsel draws on Aquinas to argue that while the Church forbids the baptism of Jewish children invitis parentibus, if such a baptism takes place it is valid—and if the child is in danger of death, then even licit. Furthermore, the Church by divine power has the authority to take possession of the children of unbelievers to ensure that the character of baptism is preserved in them and allowed to flourish into eternal life.
After reviewing the documents, Tapie argues that three questions lie at the heart of the Mortara case: “whether Aquinas holds that the forced baptism of Jewish children is lawful or licit; whether forced baptism of a child of unbelievers is nevertheless a valid baptism; and … whether Jewish parents lose their rights over their children if they are baptized.”
The History of Forced Baptism
In order to understand Aquinas’s view of forced baptism, we must examine it in its historical context. Following Augustine, Gregory the Great solidified the longstanding papal teaching on the protection of Jews, known as Sicut Judaeis: Jews were not to be forcibly converted and baptized, nor were they to be prevented from practicing their faith. Shortly thereafter in Spain, the Fourth Council of Toledo echoed this condemnation of forced baptism but also ruled that those who had been forcibly baptized must remain Christian. This included forcibly baptized children, who should be separated from their parents to receive a Christian education. Gratian and other canonists adopted this as part of medieval canon law, along with Gregory’s Sicut Judaeis.
By the thirteenth century, the canonist Huguccio of Pisa had introduced a distinction to help determine whether a coerced baptism was valid. In a case of absolute coercion, a person completely refused to be baptized, and so a baptism was invalid. In a case of conditional conversion, a person who chooses baptism under threat of violence or injury still chooses baptism and is therefore validly baptized. Shortly thereafter, Pope Innocent III confirmed that Jews should not be compelled to baptism by violence, but that if they are, their baptisms are valid, and they can be compelled to observe the Christian faith.
The thirteenth century also saw Catholic theologians discover the Talmud, which many believed threatened the eventual conversion of the Jews. Campaigns to destroy the Talmud and other rabbinic literature rolled back the toleration advocated by Sicut Judaeis. Against this backdrop, Aquinas defended Sicut Judaeis and argued that Jewish life and rites must be tolerated. As we will see, he also argued that the forced baptism of Jewish children is neither lawful nor licit, and that Jewish children should not be removed from their parents’ care even if they were validly baptized.
This teaching was carried forward and developed by his Dominican followers for centuries, most notably John Capreolus, known as “the Prince of Thomists.” But it was rejected by Cajetan and John Duns Scotus. Later in 1747 in his bull Postremo mense, Pope Benedict XIV cited Aquinas and Scotus against and in favor of baptism invitis parentibus and acknowledged that most theologians and canonists accepted Aquinas’s position. However, Benedict then introduced numerous exceptions by which baptism invitis parentibus would become not only lawful, but pleasing to God, including if the child was in danger of death or abandoned. This was the policy Pius IX upheld in Edgardo Mortara’s case.
Aquinas on Forced Baptism
The first question at play in the Mortara case was whether Aquinas holds that the baptism of Jewish children invitis parentibus is lawful or licit, even in danger of death. Aquinas treats this question directly in Summa Theologiae II-II, q. 10, a. 12, where he notes that the custom of the Church has great authority, and it opposes this practice for two reasons.
First, such children might easily be persuaded by their parents to renounce Christian faith. As Tapie notes, this argument clearly presupposes that such children would remain with their parents even after their baptism. Second, Aquinas continues,
it is against natural justice [repugnat iustitiae naturali]. For a child is by nature part of its father: thus, at first, it is not distinct from its parents as to its body, so long as it is enfolded within its mother’s womb; and later on after birth, and before it has the use of its free-will, it is enfolded in the care of its parents, which is like a spiritual womb [spirituali utero].
This echoes what Aquinas had said earlier in his commentary on Aristotle’s Nicomachean Ethics, where he names the education of offspring as a natural right since it is one of the inclinations common to all people, and in his treatise on law in the Summa, where he lists it as a precept of natural law.
In his replies to the objections on this question, Aquinas makes clear that no one should violate the natural law for the sake of salvation: “no one ought to break the order of the natural law, whereby a child is in the custody of its father, in order to rescue it from the danger of everlasting death.” Tapie argues that this makes sense in light of Aquinas’s conception of the harmonious relationship between nature and grace, and of God’s relationship to creation whereby he acts through and not in competition with the natural order he has ordained. And Tapie underscores the significance of the metaphor of a “spiritual womb”:
Aquinas’s womb analogy is intended to highlight how the authority of the Jewish parents over their young child, after he has been born but before he has use of reason, is an expression of God’s wise governance of the created order. The natural right of Jewish parents to care for their children is a design of God’s divine providence. Human parents participate in this divine providence through their rational capacity, which is also ordered according to God’s wisdom. It is through the rational, spiritual nature of each parent’s desire for perfection that they are already directed to God.
In short, Aquinas teaches that baptizing the children of non-Christians invitis parentibus is against the natural law and sacramentally illicit.
Aquinas on the Validity of Forced Baptism
What happens if a forced baptism takes place? Like other medieval theologians, Aquinas holds that there are three parts to the sacrament of baptism. The sign of the sacrament is water being poured over the baptized. A second part is both a sign and part of the spiritual reality imparted by the sacrament: the sacramental character or capacity in the soul that allows it to worship Christ. The third part is the sanctifying grace of justification that the water and sacramental character bring.
In the Summa, Aquinas also teaches that it is necessary for someone to will to be baptized in order for his baptism to be valid. But if a person willed to be baptized and lacked true faith, that person would receive the baptismal character but not the grace of justification. Likewise, twenty years earlier in his Commentary on the Sentences, Aquinas addressed the distinction between absolute and conditional coercion in baptism. A person absolutely resisting baptism would not be validly baptized. But a person conditionally accepting it would receive the sacramental character it imparts, but not the grace of justification, which would require faith.
What about a child whose parents are not believers? Immediately before his treatment in the Summa of the forced baptisms of Jewish children, Aquinas argues that the faith of the whole Church benefits the child through the action of the Holy Spirit. He quotes Augustine’s letter to Boniface, in which Augustine argues that the Church’s intention suffices for baptism despite the misguided intentions of pagan parents, who seek baptism for their children as a kind of talisman or protection for good health. And again in his Commentary on the Sentences, Aquinas holds that infants cannot be insincere in their baptism and therefore receive both the character of baptism and the reality of sanctifying grace. In light of these texts, Tapie concludes that for Aquinas, the baptism of a Jewish child invitis parentibus would be illicit, but it would still be valid.
Aquinas on Jewish Parental Rights
In the Summa, Aquinas will offer objections to a question, a text posing another point of view (the sed contra), and then his own response, followed by responses to objections. When he directly treats baptism invitis parentibus, the sed contra says: “Now it would be an injustice to Jews if their children were to be baptized against their will, since they would lose the rights of parental authority over their children as soon as these were Christians. Therefore these should not be baptized against their parents’ will.” This echoes the Fourth Council of Toledo’s canon mentioned above, which teaches that an unlawfully baptized child should still be removed from his unbelieving parents.
In Brevi cenni, the papal counsel argues as if this were the opinion of Thomas himself: “St. Thomas himself, in asserting that the Church has never been accustomed to baptize the sons of unbelievers against their will, says, among other reasons, that in such a case the parents would lose all rights over their children, who have passed into the power of the Church by virtue of Baptism.” But, as Tapie notes, this is a blatant misreading of Aquinas’s argument based on the structure of the Summa. Here Aquinas is giving the argument against forced baptism that most canonists of his time preferred, not one that he himself held.
In his response immediately following, Aquinas argues that taking away such children from their parents would be a violation of natural law: “it would be contrary to natural justice, if a child, before coming to the use of reason, were to be taken away [subtrahatur] from its parents’ custody, or anything done to it against its parents’ wish.” Tapie further notes that subtraho is the word Aquinas uses in his discussion of theft and robbery. Two questions later, Aquinas names kidnapping, “the theft of a man,” as a crime worthy of death. Hence, Tapie concludes, Aquinas is against both the sin of forced baptism and stealing children from their parents. John Capreolus, the later Thomistic commentator, agreed: “God also has prohibited such fraud, nor does he want a holocaust to be offered to himself from robbery of possessions or persons, as would be done in the proposed.”
Bringing these arguments together, we see that Aquinas opposed the baptism of children invitis parentibus, even for the sake of their salvation. If such a baptism were to take place, the child would receive a valid baptism. But that would not mean that the child’s parents lost their authority over him. On the contrary, it would be a violation of natural law to remove him from their care. And as Aquinas argues in his Quodlibetal Questions 4.8.2, even the pope cannot dispense with natural law since its force comes from its being divinely established. Therefore, Tapie concludes: “On Aquinas’s terms, the ‘removal’ of Edgardo Mortara was a kidnapping.”
The Mortara Case Today
Tapie goes on to examine the current canon in the Code of Canon Law that would pertain to a situation such as Edgardo Mortara’s. Canon 868, Sec. 1 states that for a child’s baptism to be licit, at least one of the parents or guardians must give consent. It then adds Sec. 2, which gives an exception: “An infant of Catholic parents, indeed even of non-Catholic parents, is lawfully baptized in danger of death, even if the parents are opposed to it.” Tapie argues that the premise behind this canon asserts that the salvation of the child outweighs parental rights, which emerged as part of the policy of separating Jewish children from their families such as the Mortaras.
Moreover, as Aquinas argued, it is theologically incoherent because it sets parental rights in the order of natural law against divine law. In order to bring this canon into accord with Aquinas and Vatican II’s teaching in Dignitatis Humanae and Nostra Aetate, Tapie argues, it should be modified to directly state that “for an infant of non-Catholic parents to be baptized licitly, one or both parents or the person who legitimately takes their place must consent. If only one parent consents, the child may be baptized only if the other parent does not object.”
Finally, Tapie draws on postconciliar documents and the writing of Benedict XVI to argue that there is no duty for Catholics to seek the conversion of Jews through missionary efforts. This line of theological argument has become prominent in recent decades and derives from Romans 9–11, specifically Romans 11:25–26, 29: “ Lest you be wise in your own conceits, I want you to understand this mystery, brethren: a hardening has come upon part of Israel, until the full number of the Gentiles come in, and so all Israel will be saved. … For the gifts and the call of God are irrevocable.”
This section of the book is the most theologically speculative. As Tapie acknowledges, his argument goes beyond the teaching of Nostra Aetate. But he passes over that it runs contrary to the mainstream theological tradition and practice for most of Christian history. Tapie seems to use it as a coup de grâce: not only was removing baptized Jewish children from their parents wrong, but the Church should never attempt to convert Jews, period. Instead, it risks making his argument less palatable to the kind of traditionalists most likely to support Pius IX’s actions.
That said, on the whole, Tapie’s work is thorough, careful, balanced, and ultimately persuasive. His translation and analysis of the main primary source documents are a great aid. And they lead the reader to ask what the lessons of the Mortara case are for our time.
First, Aquinas’s argument is correct: baptizing the children of unbelievers invitis parentibus and removing them from their parents is contrary to the natural law and theologically incorrect. Edgardo Mortara should not have been baptized, and even if he was baptized, he should not have been taken from his parents.
Second, the framing of the case in recent debates is mistaken. People who follow Aquinas in rejecting baptism invitis parentibus are not weak Catholics who have succumbed to the liberalism of their age. Rather, they rightly value the bond between parents and children that God has inscribed as a natural right.
Third, Tapie’s work shows the importance of ressourcement in Catholic theology, of returning to original sources and examining what they actually teach, even if this offers a correction of later theological developments and practices.
Finally, Aquinas’s teaching and the Mortara case remind us that freedom in religion and respect for Jews are not signs of liberal disregard for religion. Rather, as Benedict XVI writes, “in this time God encounters mankind through the crucified love of Jesus Christ in order to gather them into the kingdom of God through a free yes.” At a time of rising antisemitism, Catholics should see the Mortara case as a cautionary tale, not an exemplary one. And they should remember that their posture toward non-Catholics should not be one of misplaced traditionalist rigor, but one of joyful invitation into the love of God.