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Title: Marriage with a deceased wife's sister - Leviticus xviii. 18, considered in connection with the Law of the Levirate
Author: Mayow, Mayow Wynell
Language: English
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Transcribed from the 1869 James Parker and Co. edition by David Price,
email ccx074@pglaf.org
Marriage with a Deceased Wife’s Sister.
* * * * *
LEVITICUS XVIII. 18,
CONSIDERED IN CONNECTION WITH THE LAW
OF THE LEVIRATE.
* * * * *
A LETTER
TO
THE RIGHT HON. THE LORD HATHERLEY,
LORD HIGH CHANCELLOR OF ENGLAND,
&c„ &c, &c.
BY
M. W. MAYOW, M.A.,
RECTOR OF SOUTH HEIGHTON CUM TARRING NEVILLE, SUSSEX,
AND LATE STUDENT OF CH. CH., OXFORD.
* * * * *
Second Edition.
* * * * *
London and Oxford: JAMES PARKER AND CO.
Brighton: G. WAKELING.
1869.
* * * * *
BRIGHTON:
G. WAKELING, PRINTER,
NORTH STREET.
* * * * *
Marriage with a Deceased Wife’s Sister.
A LETTER
TO THE RIGHT HON. THE LORD HATHERLEY,
_Lord High Chancellor of England_,
_&c._, _&c._, _&c._
* * * * *
MY LORD,
The deep interest which for a long period you have taken in preserving
intact our Table of Degrees as to prohibited marriages, will, I hope,
sufficiently account for my wish to address the following remarks to your
Lordship, and your unvarying kindness will no less account for the ready
permission which you have given me to do so. I will not take up any time
in preface further than just to observe that of course you are not in any
way responsible for the views or the argument of the ensuing pages,
though I am, I hope, justified in believing that, whatever be their
imperfections, the object at which they aim will meet with your sympathy
and approval. My earnest and anxious wish is to do what I may, God
helping me, to aid in averting what I feel would be a grievous sin if our
marriage law were altered in the sense desired by the promoters of the
Wife’s Sister’s Marriage Bill. I do not purpose to go over the whole
ground which has been so often contested, (to do which would be almost an
impertinence in remarks addressed to your Lordship), but rather to
confine my observations to the Scriptural argument, or, perhaps I should
say, to a portion of the Scriptural argument against the change proposed,
viz.—to the due sense and application of the 18th verse of the xviii.
chapter of Leviticus.
There is, I suppose, no room for reasonable doubt that the case of the
advocates of a change in our law which may sanction the marriage of a man
with his deceased wife’s sister, rests mainly, so far as the Scriptural
argument is concerned, upon the 18th verse of the xviii. chapter of
Leviticus. “Neither shalt thou take a wife to her sister, to vex her, to
uncover her nakedness, beside the other, in her life time,” where, the
translation being assumed to be correct, the interpretation put upon it
is that if such a union is forbidden in the life time of the first wife,
there is a tacit sanction of the same after her decease. If it were not
for this one verse thus translated and thus interpreted, there would, I
think, hardly be a question raised or a doubt felt by one in a thousand
that such unions are prohibited, denounced as incestuous, and forbidden
under God’s general law, just as we find them set down in Archbishop
Parker’s table of prohibited degrees.
The importance, then, of this verse being admitted as to the right
understanding of God’s will in this matter, I propose briefly to call
attention to some points connected with it which I think have not
received the consideration to which they are entitled. My aim will be to
show, even conceding the whole demand as to the correctness of the
translation found in the Text of our authorized version, and not
disputing the inference that there is a certain tacit sanction of such a
Union with the second sister after the death of the first, yet that upon
a careful consideration, it may most reasonably be maintained that the
sanction does not extend to any general permission of the same, but that
the enactment or permission is made and given for one special object
only, and is limited to one particular condition of things, incident only
to the Jewish economy, to meet which it is definitely designed and
restricted; that therefore it involves, rightly understood, no
contradiction at all to the law laid down generally that none shall
approach to any near of kin to him (v. 6), nor to the cases which follow
illustrating the meaning of that law (v. 7–17), nor, therefore to the
prohibitions generally, nor to that one among them particularly, that a
woman shall not marry two brothers—extended by direct analogy to the
converse case, that a man shall not marry two sisters; in other words,
that though the translation, and the inference to a certain extent, be
both conceded, yet there is an ample and true sense for the passage, and
full scope for its intention and enactment, without its for a moment
clashing with the prohibitions of the general law.
But first I would say a word to clear the position that but for this 18th
verse of the xviii. chapter of Leviticus, no one would doubt, as to the
prohibition in question.
How does the case stand? The xviii. chapter of Leviticus deals first (as
the heading states), with “unlawful marriages.” After declaring
emphatically, in the first five verses, the importance of keeping God’s
law, and warning the people against falling into the sins of the
Egyptians and the Canaanites, the matter itself is opened in the 6th
verse—“None of you shall approach to any that is near of kin to him to
uncover their nakedness: I am the Lord.” “This,” as you, my lord,
observed at the meeting at Willis’s Rooms, (February 1st, 1860,) “is the
key-note to all that follows. The law then shows who are near of kin to
us, and proceeds to mention more cases of affinity than of relationship
by blood.” {5} I am aware that it has been contended on philological
grounds that the terms “near of kin” are necessarily confined in their
sense to kindred by blood relationship, and cannot embrace relationship
by marriage; but I do not feel that there is any material weight in the
critical examination of such a passage, as to the general use of a phrase
or word, because it seems to me we have here the comment of the Holy
Ghost Himself in what follows as to the sense in which the words “near of
kin” are, in the connection in which they there stand, to be understood;
that is to say, that which follows gives, by the details of the
enactments ensuing, God’s own comment as to what is intended by “near of
kin,” and if these details be found to embrace affinity as well as, and
as much as, blood relationship, it appears to me that the consideration
of what in other cases is the usage of the term, must be beside the
question we have before us. Nay, is it not, indeed, very probable that
terms, which in their ordinary usage would refer simply to blood
relationship, are here chosen by Divine inspiration to include also
relationship by affinity, for the very purpose of showing that a man and
his wife being one flesh, the nearness of kin here contemplated, and
illustrated by the instances which follow, was to embrace both
relationships alike? I do not know how better to shew that, in the whole
connection of this passage, the enactment is of the kind which I have
mentioned, than by a quotation from the pamphlet of Mr. Keble, published
in 1849. Though, my lord, you and others have said the same things, you
will, I am sure, bear with me whilst I recall the passage as it stands in
the words of that revered writer. After shewing the scope of the law to
extend not merely to the Jews by the curse which it entails having been
brought upon the very heathen who gave way to such iniquities, he says:—
“Now, what are the customs which were so abominable in the old
inhabitants of God’s Holy Land, and caused the land itself to vomit
them out? (the customs, I mean, in respect of marriage: for of the
other horrors mentioned in this chapter we are not now compelled to
speak.) They are all forbidden in one general principle: ‘None of
you shall approach to any that is near of kin to him, to uncover
their nakedness: I am the Lord.’ This being laid down in the 6th
verse, the following verses allege so many instances, whereby God’s
people might understand what ‘near of kin’ means. And it is
remarkable, that in this enunciation the law makes no distinction
between those who are akin by marriage and those who are akin by
blood, but mentions them indiscriminately, as if the one sort were
precluded from marrying under the same penalties as the other.
“For these are the degrees expressly forbidden, in their order.
First, a natural mother, in v. 7. Next, a father’s wife, or
step-mother, in v. 8: which is the case mentioned in 1 Cor. v. 1.
Next, a sister, v. 9. Next, a grand-daughter, v. 10. Next, a
half-sister, v. 11. Next, an aunt by the father’s side, v. 12.
Next, an aunt by the mother’s side, v. 13. Next, an aunt by marriage
with an uncle, v. 14. Next, a son’s wife, v. 15. Next, a brother’s
wife, v. 16. Next, a wife’s daughter, mother, or grand-daughter, v.
17.
“Here are thirteen cases in all: six of kindred by blood, and seven
of kindred by marriage: and neither by the order in which they follow
one another, nor by any difference of expression regarding them, is
any hint given, that the one sort of profanation is less heinous in
God’s sight than the other. The world may have come to think there
is a difference, because the world will not believe that man and wife
are really one flesh. But the written law of God apparently deals
with both alike.” {7}
He then adds:—
“The next remark I have to make on this, which is God’s own table of
prohibited marriages, is one which it seems to me that no fair mind
can deny. Indeed, one is half ashamed to enounce it, it is so
obvious: yet the reasoning on the other side appears to be mainly
based on the denial of it. It is simply this: that nearness of kin
not being affected by sex, what is forbidden to a man is forbidden to
a woman in the same degree of kindred or affinity, though it be not
set down in words. For instance, in v. 7, a man is forbidden to
marry his mother: then, by the same rule, a woman is forbidden to
marry her father, though the prohibition is not expressed. Surely it
would be fearful paltering with God’s law, not to accept and obey
such a plain rule as this. And it is to be observed, that these
Canons are all addressed to men only: the woman’s duty and the
woman’s sin are left to be inferred in each case: but what should we
think of the woman who should therefore account herself left at
liberty, so far as the Levitical laws are concerned?
“Now look at v. 16; which, being expressed in such English as we now
commonly talk, would run, I suppose, as follows: ‘Thou shalt not
marry thy brother’s widow: she is one flesh with thy brother, and is
therefore thine own sister.’ Can any other interpretation be put
upon it? and if this be the right interpretation, are not marriages
with a brother’s widow plainly forbidden among the Canaanitish
abominations?” {8}
All this appears to me not only a fair and right explanation, with no
unwarrantable deductions or inferences, but one absolutely irrefutable,
unless God Himself have marked in some other place a dispensation or
exception to be made to it. I know such dispensation or exception is
just what is claimed. To deal with such allegation is the very object of
my addressing you, and I shall shortly come to that part of my subject.
But it may not be amiss here just to call attention to the fact that Dr.
M’Caul himself (whom I think I may designate as the most learned and able
of the advocates for the change of the law in question) seems to admit
that, were there no other Scripture to override the law as thus
proclaimed, he should acknowledge the force of this part of the xviii.
chapter of Leviticus as conclusive on the unlawfulness of marriage with
the deceased wife’s sister; for he says expressly, in his first letter on
the subject, addressed to the Rev. W. H. Lyall, “On some points, I think,
we agree; as, for instance, that the final appeal in questions relating
to marriage must be to the Word of God. . . . I also am convinced that
the laws in Leviticus xviii., being a part of the moral law, stand on a
totally different footing from circumcision, or the Jewish Sabbaths, or
abstinence from meats. Indeed, I believe that this marriage law was
given to the Gentile Churches in the famous decree of the Council of
Jerusalem. On this ground, I believe that the prohibitions of Leviticus
xviii. are binding on all Christians.” That is, he believes, that the
general law then given, as being of a moral nature, and intended for all
men, was distinctly re-enacted, and re-decreed for the sake of greater
perspicuity, by the Christian Church in the Council at Jerusalem. And he
goes on—“I agree, further, with those who interpret ‘woman’ or ‘wife’ in
these prohibitions as comprehending widowhood, so that these females are
prohibited, not only during the lives of their husbands, but absolutely
and forever.” And he adds—“And, lastly, I admit that from the prohibited
marriages enumerated, compared with other parts of the Divine
legislation, others not enumerated may be pronounced unlawful.” {9}
Where we may see that, although with a certain reserve, yet the principle
of arguing from analogy, and from a case to its converse, in regard to
sex, appears to be admitted. And I think I do not misrepresent the whole
tone and sense of the two letters of Dr. M’Caul, when I say that I am
convinced, but for the 18th verse of the xviii. chapter, he would himself
readily have allowed the full weight of Mr. Keble’s statement, and
considered these unions to be absolutely prohibited.
But next as to the exception claimed. It is true that there is an
exception to the working of the law laid down in verse 16, concerning the
brother’s wife, by a positive enactment in Deuteronomy (chap. xxv. v.
5–10), where provision is made for a man “raising up seed unto his
brother,” by taking to him his widow to wife, if the brother have died
childless, that “the first-born which she beareth” may “succeed in the
name of his brother, which is dead, that his name be not put out of
Israel” (v. 6.) But I feel justified in saying that this alone would
have been no difficulty to Dr. M’Caul (nor to any man of his reasoning
powers), as to the prevalence of the general law in all cases but the
special one excepted, and that but for the 18th verse of the xviii.
chapter of Leviticus, our 99th Canon and the table of prohibited degrees
would have been almost or quite universally accepted as the true
enunciation of the will and law of God in this matter of unlawful
marriages.
It is, then, to that particular passage of Holy Scripture that it is
necessary to draw attention. And here, my lord, I must take up a word,
which I find in your speech before referred to, which seems to me to be
emphatically a word “of truth and soberness.” You say, “To over-ride a
command, which is distinct and precise, you must have a very clear verse
and a very clear interpretation.” {10} Dr. M’Caul quotes these words,
with a distinct approval of their statement, though with exactly the
converse of their application. “You believe,” he says, “that a very
clear verse and a very clear interpretation might over-ride a command,
even though it be distinct and precise, and you are right.” He goes on,
“Lev. xviii. 16, the verse on which you chiefly rest your Scriptural
arguments, is, so far as relates to marriage with a brother’s wife,
distinct and precise, and enunciates a command absolutely and without any
limitation; and yet it is over-ridden by Deut. xxv. 5.” He means, of
course, over-ridden as to the particular case of “a man’s raising up seed
unto his brother;” but not so as to sanction the brother taking the
brother’s wife in any other contingency. And this we, as well as he,
allow and admit, for who shall limit the Almighty’s right, and power to
grant or make any special exceptions to His general laws, which He may
think fit? But we should have deemed it strange indeed if the whole law
enacted in one place were definitely repealed in another, whilst that law
was in force among those for whom it was given and designed. But so far
we can well go with Dr. M’Caul. He proceeds, where, as I hope presently
to shew, we have no need to follow him, and where, indeed, if his view
were correct, there _would be_ the total repeal of what is stated as the
law in one verse, in the second verse after it. However, to go on,—Dr.
M’Caul adds, “And therefore, _a fortiori_, your inferential prohibition
with regard to a wife’s sister may be over-ridden also by a clear verse
and a clear interpretation. If weight of authority is to decide, Lev.
xviii. 18, is just such a verse, and its interpretation has the required
condition. Here, then, the controversy narrows itself into that which is
the common and popular view of the matter: whether the inferential
prohibition from verse 16 is to over-ride the expressed command of verse
18, or the plain letter of this latter verse to over-ride the inference
from the former.” {11} Now, I shall have something further to say
presently as to “the expressed command,” and the “plain letter of this
latter verse;” but at present let me merely remark, that we have, at any
rate, Dr. M’Caul’s admission that between these two verses there _is a
conflict and an over-riding_. In his view even, there is discrepancy.
What is, in the one, he tells us, at least inferentially prohibited, is,
in the other, expressly commanded; and this, not in a case or manner
parallel to the variation between the 16th verse, _prohibiting_ as the
general law, and the passage in Deut. xxv. 5, _enjoining_ in the
exceptional contingency named, but, on the contrary, in a case of a
universal negative met and confronted, two verses afterwards, by a case
of a, not exceptional, contradictory affirmative. And the only
palliation of such a startling discrepancy in Holy Scripture is, we are
to understand, that it is inadmissible to draw the inference from the
woman being forbidden to marry two brothers, that the man is forbidden to
marry two sisters. Although throughout the restrictions this principle
is necessary to prevent the most revolting permissions under the law, and
although, but for the 18th verse, no one, we believe, would have dreamed
of questioning it in the particular of the man and two sisters, yet here
it must be at once ignored, or you have an absolute contradiction of
commands, in the same enunciation of law, within two verses. {12} I
notice this point expressly, because I think we cannot too strongly
entertain the conviction of the _unlikelihood_ of such a thing occurring
thus in the word and law of God; and therefore, as a reason for the most
careful examination, whether we may not have overlooked the real scope
and object of this 18th verse, even if we admit the correctness of the
translation and of the sense. Observe, there is a great distinction
between the sense and the application. Admitting the sense, I must deny
the application, as I shall presently shew. But here let me repeat, if
there be but a fairly reasonable account to be given of the existence and
application of the 18th verse, without its running us into the difficulty
of this over-riding, and collision with itself of God’s law, and if we
hereby avoid the gross unlikelihood which I have mentioned, then surely
such account and such application ought to commend itself to every candid
mind, as at least worthy of the most serious consideration.
My Lord, I venture to think such account and application of the 18th
verse there is; and though it has been touched upon by others, and Dr.
M’Caul himself came very near it, yet it appears to have been too little
dwelt upon by any, and strangely overlooked by him. {13a}
Let me here bring the matter once more to the point of divergence. We
have first the general law, “None of you shall approach to any that is
near of kin to him” (v. 6). We have then the general catalogue of
prohibitions which come under this head, and form the divine comment on
the terms “near of kin:” and these dealing, with cases of affinity, in a
majority of the prohibitions expressed, as compared with those of blood
relationship (v. 7–17.) All these, moreover, be it observed, put in the
statement as commands upon the _man_, leaving the obligation upon the
_woman_ to be inferred. Upon this statement we have Archbishop Parker’s
table of degrees, and of the forbidden unions, extending exactly to the
parallel cases of all those named;—with the like witness also of the 99th
Canon, declaring all such alliances to be incestuous;—and this table
required by our law, both of Church and State, to be set up in all Parish
Churches. {13b} But we have then the 18th verse making, as is alleged,
not merely an exception, but a contradiction to the parallel case of what
is forbidden in verse 16 as to the brother’s wife, and permitting the
union with a wife’s sister, so that it be not in the lifetime of the
former. We thus come to what Dr. M’Caul himself considers to be a case
of _over-riding_, where we must determine whether (to use again his own
words) “the inferential prohibition from verse 16 is to over-ride the
expressed command of verse 18, or the plain letter of this latter verse
to over-ride the inference from the former.” {14}
Now, what I am anxious to see is, whether there is any need to force upon
us this _over-riding_ at all. I think not.
To show what I mean, I ask this—Take the prohibition of the brother’s
wife first in its plain literal terms, verse 16, and then is there,
independently of the 18th verse, any direct exception to it? Certainly
there is. When we come to the further explication of the Jewish polity,
and God’s designs in reference to it, we find a special provision in the
law of the Levirate, (that is, the law of raising up seed to the deceased
brother), which will clash with that prohibition; for the brother is
required to take his brother’s wife and raise up seed to a house in
danger of becoming extinct in Israel. “If brethren dwell together, and
one of them die, and have no child, the wife of the dead shall not marry
without unto a stranger: her husband’s brother shall go in unto her, and
take her to him to wife, and perform the duty of an husband’s brother
unto her. And it shall be, that the firstborn which she beareth shall
succeed in the name of his brother which is dead, that his name be not
put out of Israel. And if the man like not to take his brother’s wife,
then let his brother’s wife go up to the gate unto the elders, and say,
My husband’s brother refuseth to raise up unto his brother a name in
Israel, he will not perform the duty of my husband’s brother. Then the
elders of his city shall call him, and speak unto him: and if he stand to
it, and say, I like not to take her; then shall his brother’s wife come
unto him in the presence of the elders, and loose his shoe from off his
foot, and spit in his face, and say, So shall it be done unto that man
that will not build up his brother’s house. And his name shall be called
in Israel, The house of him that hath his shoe loosed.” Deut. xxv.,
5–10.
In this passage there is, not what I should call a contradiction to the
general law, but an exception in a particular case, and for a particular
case only. It is no general permission over-riding and making of none
effect the general prohibition, but a particular injunction for a special
purpose in one defined contingency. If a man’s brother die childless,
his brother shall take his wife and raise up seed unto his brother. As
it was exactly quoted in the gospel: “Master, Moses said, If a man die,
having no children, his brother shall marry his wife, and raise up seed
unto his brother.” {15}
We have already observed that the authority of Him who gave the
prohibitory law is sufficient to give also the permissive, or more than
permissive, exception, so that we come into no difficulty as to the one,
in such measure, _over-riding_ (to use again the term) the other.
But of course the opponent’s rejoinder is: Are you not in the very same
case as to the other over-riding? Is not the authority which gave the
prohibition of the 16th verse equal to give the permission of the 18th?
Granting that it is so, yet I must again call attention to this; how
wholly unlikely it is that, without making any special exception, for any
suggested or defined cause, there should be within two verses of each
other two general laws exactly contradictory, for so they are, if the
argument from parallelism is allowed. And therefore I must again urge
how probable this makes it, if there be any other reasonable sense or
application of the second passage not involving this contradiction, that
such sense and application should be the true one, and there should be
thus no over-riding at all between those two verses.
Is there then any such reasonable sense and application of the
prohibition of the 18th verse? I think there is. To see what it is, go
back to the exception under the law of the Levirate, {16} and ask whether
the application of that law might not involve a man’s marrying two
sisters. Undoubtedly it might. Suppose two brothers to have married two
sisters, and the one brother to die, leaving no child, if, by the
Leviratical law the brother, as he would do under that law simply, took
his brother’s widow to raise up seed unto his brother, he would also be
taking to wife his own wife’s sister, and this, it would seem under the
injunction in Deuteronomy, he would not only be permitted but enjoined to
do. But was this to be without exception? I answer, No! If his own
wife, the sister of the other were still alive, the Almighty did not
intend this rule to be carried out in such case. He, the surviving
brother, in that contingency, should _not_ “take a wife to her sister to
vex her, . . . beside the other in her life-time.” The prohibition of
the 18th verse of the xviii. chapter of Leviticus comes in. It comes, in
the translation of the authorized version. It comes, in the sense
contended for, as prohibitory if both sisters are alive together. It
comes, as tacitly sanctioning the union if they are not; but it comes as
limited in its application to this one case and one contemplated
contingency, as God’s own exception touching the two sisters “in their
life-time:”—His exception, as to both sisters alive together; the
exception to the exception contained in the law of the Levirate, but as
having nothing at all to do with the general law: as therefore in no way
interfering with or over-riding the general law of the 16th verse; in no
way making its general provision of none effect, as it would do if taken
in the sense and application of these reformers of our marriage law. And
the above-mentioned sense and application which everyone must allow the
18th verse will bear, nay, which Dr. M’Caul tells us all Jewish
authorities claim and sanction, as at least included in its legislation,
is, I must contend, ample and sufficient to explain the standing of the
18th verse, and its full meaning, without supposing any other application
whatsoever.
And let it be observed that this statement of such application to the
case of two brothers having married two sisters, and the consequent duty,
in the case of one brother dying childless, of the other brother to take
his widow under the law of Deuteronomy, modified by the exception of the
18th verse of Lev. xviii, that such union is not to take place, if his
own wife be still alive, is not mine, but Dr. M’Caul’s, in a full
examination of certain passages in the Mishna upon this subject. Indeed
it was Dr. M’Caul’s own statement, in his Letter addressed, my Lord, to
yourself in 1860, which brought to my mind the main line of argument
which I am endeavouring to unfold. I asked myself;—If all this in the
Mishna and in Dr. M’Caul’s explication of the matter, be true, why is it
not the sufficient truth and the whole explanation needed? Why go on to
make a conflict between the two verses in Leviticus when the 18th verse
is acknowledged to be the enunciation of an exception to the law of the
Levirate, and when this is a full and sufficient account of it?
It will, I think, be no waste of time to extract the passage to which I
refer from Dr. M’Caul’s letter, as this will serve both to make what I
have here said the more distinct, and shew also, how entirely both the
Mishna and Dr. M’Caul maintain all which I have advanced as to the
application of the verse in Leviticus to the case of the two brothers
having married two sisters, though they refuse (at least the latter) to
stop at this point.
I ought to say thus much as introduction to the Extract. In his first
letter Dr. M’Caul had mentioned the Mishna as confirming his view. “The
Mishna compiled in the second century testifies that it (this permission
of the marriage) was the common and received sense of the Hebraizing
Jews.” {18} This drew some remarks from the writer of one of the Tracts
published by the Marriage Law Defence Association, (Tract 8, p. 4, and
Appendix, quoted also by yourself in the Appendix to your speech,) upon
the statements of the Mishna, which again caused Dr. M’Caul in rejoinder
to examine those statements and to comment upon them afresh in his letter
to yourself. I need not go back to the first two pamphlets. Dr.
M’Caul’s explanations in his second letter will shew all which I want to
exhibit. Complaining of inaccurate quotation on the part of the writer
of Tract 8, he says,
“I will give the passages as they stand in the Mishna, and you, Sir,
may judge of the faithfulness of this writer in making quotations.
The words of the Mishna are:—
“‘Suppose three brothers, two of them married to two sisters, and one
of them married to a stranger—one of the sister’s husbands dies, and
he who is married to the stranger takes his widow—then the wife of
the second dies, and after that he that is married to the stranger
dies, behold this _widow_, (_i.e._, the surviving sister) is
prohibited to him for ever, because she was prohibited to him for
_one hour_.’
“Now, Sir, you will perceive several differences between this
statement of the Mishna and that of the Appendix. 1st, The Appendix
says,—‘It is declared, that if that _brother’s wife is his own wife’s
sister_, _he may not marry her_.’ The Mishna makes no such general
statement, but confines itself to a particular case. 2dly, The
reason the Mishna gives for the prohibition of the surviving sister
is that ‘she had been prohibited to him _for one hour_,’ which the
Appendix omits altogether. 3rdly, The Appendix says, ‘And the reason
assigned is, that _the man and his wife’s sister_ are related _within
the degrees forbidden by the holy law_ to intermarry,’ not one word
of which is in the text of the Mishna, as you see. The Mishna gives
the reason correctly, _she had been prohibited to the second brother
for one hour_, _i.e._, her widowhood commenced whilst her sister was
still alive and the wife of the other brother, in which case the
_Rabbis_ rule that she is prohibited for ever.
“To make this plain, I will put letters as in the Appendix:—
“Two brothers | A/B | marry | M/N | Two sisters.
“A third brother, C, marries S, a stranger, _i.e._, no relation.
“A dies; M is left a widow.
“C marries M, A’s Widow, to fulfil a brother-in-law’s duty, which B
could not do, because to marry two sisters simultaneously is
forbidden by Lev. xviii. 18. This is the ‘one hour’ during which M
is prohibited to B.
“N then dies, and B is left a widower; but he is not allowed to marry
M, left a second time a widow, because on the death of A, whilst N,
his wife, was alive, M was prohibited. Out of this particular case,
by putting in words not in the Mishna, and by leaving out the words
‘one hour,’ which are in the Mishna, the writer has made a new
Rabbinic law, unknown to the Mishna and its commentators, and from a
particular case has drawn a general conclusion, opposed to Jewish law
and practice. For, take the deaths in a different order, so as to
avoid the ‘one hour,’ and then B might marry M. Thus:—
“Two brothers | A/B | marry | M/N | Two sisters.
“A third brother, C, marries S, a stranger.
“Suppose that N dies first, and after she is dead A dies without
children, then B may marry M, because she had not been ‘prohibited to
him for _one hour_,’ _i.e._, she had not been a widow whilst his own
wife was alive. The second case alluded to is exactly similar:—
“Mishna III. 9.—‘Suppose two brothers [A and B] married two sisters
[M and N]. If one of the brothers [A] die, and afterwards the wife
of the second [N] die, then the widow [M] is prohibited to the
surviving brother [B] because she had been prohibited to him _one
hour_.’
“But suppose that N had died first, and then A died without children,
then it would have been lawful for B to marry M, as may be seen in
Maimonides, Yad Hachazakah, Hilchoth Yibbum, ch. vii., § 3, 4, where
there is an analogous case. The prohibition in the one case, and the
permission in the other, depends, not upon the words of the law, but
upon a general rule _laid down by the Rabbis_; that the lawfulness or
unlawfulness, as well as the obligation to perform the duty of a
brother-in-law, is regulated by the state of things existing at the
moment when the brother died.” {20}
I have extracted the above at full length, because at the same time that
it shews all I want and even more than I want for my purpose, it yet also
shews no contradiction to what I want, whilst it shews also that I
suppress no part of Dr. M’Caul’s statement or argument. I say that it
shews something more than I want, though nothing contradictory to it;
because I have no need to consider either the third case of a brother
marrying a stranger, or the case of the _one hour_ commented upon by the
Mishna, or at least this case no further than as it brings out into the
plainest prominence Dr. M’Caul’s own witness to the sense of Lev. xviii.
18, that it forbids “B to marry A’s widow, because _to marry two sisters
simultaneously is forbidden by Lev. xviii._ 18.” That is, by the law of
the Levirate simply, this would have been required, but by the exception
of the above verse it is forbidden. {21}
And this is what I mean by saying the passage shews all I want. It
proves incontestably that according to the Mishna, according to the
Jewish Rabbis, according to Dr. M’Caul, the enactment of the 18th verse
of the xviii. of Leviticus was inserted, for the very purpose which I
have all along supposed:—that it was the declaration of God’s will, that
when the operation of the law of the Levirate _per se_ would bring about
the brother taking his own wife’s sister to wife to raise up seed unto
his brother, _then_ the exception to the exception came in and forbade
him to do so, if her sister, his own wife, were alive. And this is what
made me say (p. 13) that Dr. M’Caul came very near to the application of
that text which I have been unfolding, though I was obliged to add, he
overlooked its importance in interpreting the law as contained in
Leviticus, for he allows that the 18th verse of Leviticus xviii. reaches
to, is intended to reach to, and to forbid, this especial union, which
otherwise would have been enjoined by the law in Deut. xxv., but it
appears never to have occurred to him that this is the ample and
sufficient explanation of the existence of that 18th verse. He never
seems to have conceived it possible that it should be restricted to being
the exception to the Leviratical Law, and not be a general Law itself.
I would, my Lord, for many reasons, had it so pleased God, that Dr.
M’Caul were alive. His ability and learning, his strong sense and true
piety, and not least his willing readiness to join with those who might
differ from him in many points in the defence of our common Church and
common faith against the assaults of infidelity and rationalism, make his
death a no ordinary loss to us in days like these. But beyond this, I
own, had it so been possible, I should have liked to point out to him how
his own statements, his own authorities, and his own reasoning had been
the very means to lead me to the conclusion, that we find a very complete
and sufficient explanation of the existence and meaning of the 18th verse
of Lev. xviii., without any occasion to resort to so violent an
over-riding one statement of Scripture by another, as he has advocated.
And this too without having to question the ordinary translation of the
verse, or to find any difficulty in the sense of the words, “in her
lifetime.” All this, at any rate for the sake of argument, I seem able
to concede to Dr. M’Caul, to take his own account of _an_ application of
the passage, and only add, that it seems to me to be _the_ application,
and the only application needed. I cannot forbear adding, that if there
be but a chance of this being so, it makes it a most serious thing for
anyone to speak lightly of the restrictions in question—not merely of
this one of the brother’s wife, but of all those laid down in this
chapter of Leviticus, or to _think_ even of relaxing that code; for who
shall say that we shall not thus “haply be found to fight against God,”
and be bringing ourselves and our country under the curse of His Word,
denounced against all who defile themselves in these things: “Ye shall
therefore keep My statutes and My judgments; and shall not commit any of
these abominations, neither any of your own nation, nor any stranger that
sojourneth among you: (for all these abominations have the men of the
land done which were before you, and the land is defiled:) that the land
spue not you out also, as it spued out the nations that were before you.
For whosoever shall commit any of these abominations, even the souls that
commit them shall be cut off from among their people. Therefore shall ye
keep Mine ordinance, that ye commit not any of these abominable customs
which were committed before you, and that ye defile not yourselves
therein: I am the Lord.” {23} In these days, my lord, we have many
things to make us anxious—many things, I do not go too far in saying, to
make us tremble; but I hardly know anything which should fill us more
with anxiety, fear and trembling, than the thought that our legislature
should bring us under this terrible curse of God, by sanctioning, as the
act of a people among whom “Christianity is” still “the law of the land,”
any one of those abominations, for which even the nations of Canaan were
cut off and spued out. And as to individuals, I must say, there are to
me few things more calculated to raise mixed feelings of pity, contempt
and horror, than the levity and recklessness of some of those who are
advocating the change—pity for the ignorance of many who have been misled
by mere bold assertion, contempt for the reasoning powers of others who
seem never to dream of looking at any side of the question except that on
which their own passions, prejudices, or wishes are enlisted, and horror
at the fearful temerity of those who dare approach and argue upon such a
subject, without at least a sense of its importance, of the reverence
with which all discussion relative to it should be conducted, and an awe,
at any rate, as to the possibility, after all, of God’s law and will
being in accordance with the Church’s interpretation of it for so long a
time, and wholly against the “new thing” which the spirit of modern
lawlessness seems anxious to introduce!
My Lord, I have not designed or attempted to go through the whole
argument on the question of the alteration of the Marriage law as now
proposed, but have sought to confine myself to these points:
I. That the whole strength of the case of the promoters of the change,
so far as Holy Scripture is concerned, rests upon the text, Lev. xviii.
18, this text being taken to override the prohibition of Lev. xviii. 16.
II. That the contradiction of two general laws in God’s Word, the one to
the other, in the course of three verses is highly unlikely and
improbable; so improbable that we are justified in expecting to find some
other solution of the difficulty.
III. That in the case in hand, there is another solution falling very
naturally into its place by careful comparison of Scripture with
Scripture.
To sum up the general argument, even at the risk of some repetition, we
may state it thus:—
(i.) We have the general rule laid down: “None of you shall approach to
any that is near of kin to him” (verse 6).
(ii.) We have the instances and exemplifications of what this “nearness
of kin” means, all of these given directly with reference to the _man_,
leaving the corresponding _woman’s_ duty to be inferred (verses 7–17).
(iii.) We have the particular case of the brother’s wife (verse 16);
whereupon, by parity of reasoning, is inferred the prohibition of the
wife’s sister, it being here to be observed, that unless the cases of the
different sex, by parity of reason, be taken as contemplated by the Holy
Ghost in giving this Scripture, we have no written law against several
most frightful kinds of incest. {24}
(iv.) We have an exception to the very letter of the law as to the
brother’s wife, by the injunction of the law of the Levirate, in the
provision for preventing the extinction of a house in Israel, by the
brother’s taking his deceased brother’s wife (if he have died childless),
and raising up seed unto his brother: this, not in the nature of a
prohibition, but of an exceptional injunction or command. (Deut. xxv.
5–10.)
(v.) We have an exception to the above exception, forbidding its being
extended to the taking the wife’s sister in the case of the above
injunction working (as in one special case it might work), to the result
of a brother, in taking his deceased brother’s widow, taking also, by the
same act, his own wife’s sister, and thus, if his own wife were still
alive, having the two sisters together as wives. For this would be the
case, were there no exceptional prohibition, when two brothers had
married two sisters, and when, though one of the brothers had died
childless, yet both sisters were alive. Then there comes in the
exception: “Neither shalt thou take a wife to her sister, to vex her . . .
beside the other in her lifetime” (verse 18); as if it were said, In no
case—no, not when the law of the Levirate would otherwise require it—no,
not when the saving of a house in Israel from extinction would otherwise
demand it—shall a man take his wife’s sister, his own wife, her sister,
being yet alive: where, too, we may observe, that the parallelism in the
cases of the two brothers and the two sisters is strictly and exactly
maintained; for the woman in no case _could_ take a second brother, the
other being alive; for her husband, the first brother, _must be dead_
before the law of the Levirate could operate at all; therefore the wife’s
sister _could not_ (even when two brothers had married two sisters) take
her husband’s brother beside the other in his lifetime, and thus the
wife’s sister is exactly equally restrained from taking the sister’s
husband, when the circumstances would lead to it by a man taking “a wife
to her sister . . . beside the other in her lifetime.”
Thus, too, it is clear that the law of this 18th verse is a law of
prohibition, not of relaxation, and therefore naturally and properly
comes in its place with the other prohibitions of this 18th chapter of
Leviticus.
And I venture to submit, that this is the whole meaning and application
of this much controverted verse: viz., that it is not in the nature of a
general law at all, but is merely the declaration of an exception to an
exception—an exception to preclude two living sisters being
simultaneously the wives of one man, even when the law of the Levirate,
but for this prohibition, would lead to such result. I must add, that to
me it seems to be a full, natural and sufficient explanation of the
passage without any further application at all, that is, without
supposing it to have anything to do with the general law, or to be any
relaxation of the prohibition of the 16th verse as to the brother’s wife,
or the converse case to it, by analogy, as to the wife’s sister.
Possibly the exact bearing of the foregoing argument may be made plainer
by a paraphrase of the Scriptural statements, putting them something into
the form of statute law, by which means the different provisions of the
several passages may be combined and their connection be seen, as various
provisions in the clauses or sections of an Act of Parliament are read
together. I dare say I shall expose myself to not unjust criticism for
technical blunders, in attempting to adopt Act-of-Parliament phraseology;
but I shall be content to bear this, if I may attain my main object,
viz., to shew how the different parts of the law combine and should be
read in connection with each other, and especially what is the force and
due application of what will be, so to speak, the last clause or section
in the Act.
Suppose, then, God’s law as to these marriages to stand in the
statute-book of a Jewish Parliament, imagining for the moment such to
have existed. Might not the principal enactments stand something in this
way? It will be understood that a permission or tacit sanction of
polygamy must be assumed, as part of the common law of the community.
Say, then, that the enactments in question stood thus:—
[None to intermarry with those near of kin.]
§ 1. Be it enacted, that none shall inter-marry with any related to
them, whether by blood relationship or by affinity, within the following
degrees, as set forth in the annexed schedule:—
[Schedule of Prohibited Degrees.]
(Then suppose Archbishop Parker’s Table of Prohibited Degrees here
annexed as the schedule.)
The Act would then continue:—
[Brother to marry deceased Brother’s Wife, to raise up seed to his
Brother.]
§ 2. Provided always, that, in reference to the above prohibition of the
brother taking his brother’s widow, it shall yet be lawful, authorized
and required (under penalty of a stigma of disgrace, to be attached to
him who fails in compliance), that in the case of a man’s brother dying
childless, in order to prevent the extinction of a house in Israel, his
brother shall take the deceased brother’s wife, and raise up seed unto
his brother; and, therefore, that the first-born child of such union
shall succeed in the name of the brother who is dead, and be accounted
and taken by the law of this land as not of the family of the second
brother, but of the first, and shall be the heir, both in name and
possessions, of that deceased brother, whose widow’s child he is.
[But none to take a wife to her sister, beside the other in her
life-time.]
§ 3. But, inasmuch as in the case of two brothers having married two
sisters, the enactment of the preceding section might, and, in the event
of one brother dying childless, would, authorize and require a man to
take to wife two sisters, his brother’s widow being in such case his own
wife’s sister, and whereas, if his own wife should at such time be alive,
this might lead to rivalry and vexation, be it further enacted, that
nothing herein enacted, in the previous section or in any part of this
Act, shall authorize, permit or require any brother, even for the purpose
of saving a house and family from extinction, to take to wife the sister
of his own wife, his said wife her sister being yet alive; and be it
therefore enacted, that in such case, where such would be the result of
the enactment of the previous section of this Act the provision of the
said previous section shall become inoperative and of none effect, rather
than a man take a wife to her sister to vex her, beside the other, in her
lifetime.
Upon this illustration I will only ask—Would not such an Act of
Parliament be perfectly distinct and clear? Could any one possibly
misunderstand it? Would not every clause and section have its own plain
and intelligible sense? Especially would not the last clause or section
have a full and sufficient both sense and application without any man’s
dreaming for a single moment of there being contained in it a repeal of
any portion of the table or schedule of degrees? I say contained _in
it_, because no doubt the second section would contain something of this
kind, and yet, be it observed, not a repeal, but a partial exception;
that is, in one particular case, and for one particular specified
purpose, the second section would modify one entry in the table, that of
the brother’s wife or sister’s husband (as it is confessed on all hands,
the law of the Levirate, Deut. xxv., does modify the law of the 16th
verse of Lev. xviii.), but even so, I must insist upon it, not
_repealing_ it; for the exception would operate _only_ when the brother
had died childless, leaving the entry in the schedule in fulness of
prohibition in all other cases. And it is beyond all question that that
modification would be due to the second and not to the third section of
the Act. The third or last section would have nothing to do with any
relaxation of the law, but would be merely a restrictive provision in
relation to the working of the previous section, being, as I have all
along been shewing, a narrowing, not an enlarging the liberty given under
the exception in the previous clause and having no further
bearing:—therefore having nothing to do with any entry in the schedule;
nothing to do with the permission to take the brother’s wife or the
sister’s husband, and, if so, nothing at all to do with the object for
which that clause, so to speak, is used by the promoters of the change in
our law, as proposed in the Wife’s Sister’s Marriage Bill.
Moreover, does not this account make it perfectly intelligible why the
first section should remain in the integrity of its enactment, and all
the entries find their place in the schedule, because no single entry is
repealed even by the modification caused by section 2? But surely it
would have been absurd to enact, or to retain in the table, the entry as
to a brother’s wife or sister’s husband, if an almost immediately
subsequent contradictory enactment were wholly to repeal it, as contended
by the promoters of the Bill in question.
I do not know that I have more to add unless it be to meet briefly a
possible objection from the law of the Levirate not being found in the
same place with the other two passages, nor indeed in the same book of
Leviticus, but in another book of Holy Scripture. It may, perhaps, be
asked—Is it not strange and unnatural to find the exception to an
exception entered where the first exception itself is not recorded, and
perhaps even before that exception was made at all?
I would reply, first—
If this be an objection, it is one to which the Mishna, and the Jewish
Rabbis, and Dr. M’Caul are open just as much as I am. For they all
acknowledge and maintain that upon that 18th verse of xviii. Leviticus is
founded the prohibition which they all claim as to the brother in the
case of two brothers having married two sisters; of the one not being
permitted to obey the injunction of the law of the Levirate, as to taking
the other’s wife in the particular case of the one brother leaving a
widow whilst the other brother’s wife is yet living.
I would reply, secondly—
That the objection, from the exception in Deut. xxv. not possibly having
been then made, is as nothing when the lawgiver is not man but God, who
knows from the beginning all which He intends. {30}
I would reply, thirdly—
That a fair and reasonable account of the statements in Leviticus xviii.
not alluding directly to the law of Deut. xxv., and not in any way
indicating the exception there made or to be made to the prohibition of
verse 16, is to be found in this: that all the statements in that chapter
of Leviticus are _prohibitions_, whilst the record in Deuteronomy is a
_permission_ or indeed a _command_; that, therefore, it is perfectly
reasonable and natural that we should not find prohibitions and
relaxations of the law mixed up together. Thus Leviticus keeps to its
prohibitions, verse after verse, with the warnings and denunciation of
penalties proper to its subject; and Deuteronomy deals with its
exceptional relaxation, and the duties and consequences therewith
connected. And it may be just worth while to add that although the 18th
verse of Leviticus xviii. is an exception, it is still in the sense and
application which I have been enforcing, a prohibitory not a permissive
exception; a consideration which not only shows it is in its due place
among the other prohibitions, but also strengthens the view taken in this
letter of its being no more than a prohibition. It _prohibits_ the
taking two sisters simultaneously, even under circumstances which, but
for its existence, would have required such union, and it does not permit
anything as against the laws of the 6th and 16th verses. Were Dr.
M’Caul’s view, and the view of the promoters of the alteration of our law
of marriage correct, we should at least have the anomaly of a permissive
precept foisted in, if I may so say, among the prohibitory sentences of
this chapter, dealing in all else with prohibitions only. For, it is
plain, to read the verse as meaning a man may marry two sisters, if it be
not simultaneously, is a permission upon the previous restriction; whilst
to say a man may _not_ marry two sisters simultaneously, even when the
law of the Levirate would seem to demand it, is a prohibition. The law
of Deuteronomy, therefore, (the law of the Levirate,) being a permission
or command, not a prohibition, makes it no marvel that that injunction is
not found among the prohibitions, whilst that the prohibitional
exceptional decree of the 18th verse of Lev. xviii., should be found
where it is, among the prohibitions, is no marvel either.
I would reply, fourthly—
That to find the law of the Levirate in this place in the Book of
Leviticus would have been to find a provision solely and simply of the
Jewish economy and polity, most unnaturally intermixed with the
provisions of God’s general moral law:—that is, what is applicable solely
to Moses and the people under him, confused with the law intended for all
nations and people, as witnessed by the denunciations of that chapter of
the book of Leviticus with which we have been concerned. How is it
possible to suppose the Leviratical injunction of Deuteronomy could have
found a place among the things prohibited and condemned as the
abominations of the Canaanites and Egyptians?
I would reply, fifthly—
That if any further answer to the above objection be needed, there is, at
least, the general and most sufficient reply, that we are no judges of
the right collocation of different points in God’s revelation to man.
When we see the fitness of anything, even as we can judge, we may glorify
Him and be thankful; when we cannot, we may and should “put our mouth in
the dust” and be humble. If things are not made more plain to us than
they are, or even are less plain than they might have been, let us
remember our state of trial, and acknowledge that all such may be, for
ought we know, exactly so revealed as they are, and so placed as they
are, for our trial. There is no reason why we should not be tried just
as much as to difficulties put before our intellect, as by temptations
appealing to our passions; and, as Bishop Butler has remarked, there are
some men who, but for the former, might be found to have hardly any trial
at all. (Analogy, Part ii., chapter 6.) If the particular objection
here advanced be analyzed, it will be found to be but this:—Why should
there have been _an omission_ of this law of the Levirate in Leviticus,
when, in the same place, there is the record of a prohibitory exception
to it? But who shall pretend to account for the omissions of Holy
Scripture? Take but that one record in St. Luke’s Gospel of the two
disciples who, on the morning of the Resurrection, walked to Emmaus, and
were met by Jesus on the way, as they talked of those things which had
come to pass, and were sad. What can be more wonderful to our conception
than what we find, and what we do not find! After their converse
concerning Jesus of Nazareth, which was a Prophet mighty in word and deed
before God and all the people, we find that He himself, “beginning at
Moses and all the Prophets, expounded unto them in all the Scriptures the
things concerning Himself.” {32} But we _do not find_ a single syllable
of all this discourse recorded in the Gospel. If we judged by what
seemed to us likely, how sure should we feel that it would have been set
down! Oh! how many difficulties might have been met! how many objections
have been answered! how many heresies have been avoided! how great a
flood of light have been thrown upon various points of history, prophecy,
and doctrine! and how great a guide have been given for all in life and
conduct! had it seemed good to the Holy Ghost to let the Evangelist
record that discourse. If we judged by our sense of likelihood, should
we not say, “What could be so full of interest and of edification! How
important! how needful for us to know what our Lord said, when beginning
at Moses and all the Prophets, He expounded unto them in all the
Scriptures the things concerning Himself!” But not one word of it is set
down, and, perchance, for the very cause that it would have too much
abridged our trial had we possessed such an exposition, and that we may
learn in all things not to judge amiss as to the hard things or the
secret things in God’s Word nor to think “His ways are as our ways.” Had
that discourse been placed before us, perchance there had never been an
Arian or a Socinian in the world. (How good we might think it!) Had the
whole marriage law of God, if we may so say, been systematically set down
in His holy Word, it may be there would have been none now to tamper with
it. (How happy, too, we should think it!) But we might as well say,
“How happy if Adam had had no trial put upon him, and so had never
fallen!”
But our duty is, as it is, and as God has thought fit to set it before
us. He has revealed to us His law and will in such manner and degree as
seemed to Him good. It is our’s to receive it and to seek to understand
it as most humbly and reverently we may, and, asking His grace and help,
to do our best to keep it: to keep it individually in our own lives, and
so far as He permits us, to keep it from all defilement or breach in the
laws of our country. We call ourselves, and rightly, a Christian
country, for we are, as baptized into the body of Christ, His members.
Let us remember, if even carelessly, much more if wilfully, we go against
His commands, and set human law in its permission against the divine law
in its prohibition, we are rebellious against Him who is our God and our
King; we are going back from our Christian state and profession; we are
placing ourselves on the level of the nations—the Egyptians and the
Canaanites—who committed all those abominations, against which His curse
is denounced who is “the same yesterday and today, and for ever.”
I have the honour to be,
My Lord,
Your Lordship’s very faithful and humble servant,
M. W. MAYOW.
_Buckingham Road_, _Brighton_, _July_ 14_th_, 1869.
P.S.—Whilst these sheets are passing through the press, I am reminded of
an objection taken to the whole line of the argument of my letter upon
the very strength of the law of the Levirate. I am told (and I think the
view was touched upon in the report of the Commission) that there are
some who deem the law of the Levirate to be the total repeal of the
prohibition as to the brother’s wife (which most certainly it is not),
and who would then go on to say, And, upon your own shewing, after the
wife’s death this very law of the Levirate will bring you to the
conclusion of marrying the wife’s sister.
I should, perhaps, hardly deem it necessary to notice seriously such an
objection, but that I hear of it as actually made or revived at the
present time. I will then say a few words upon it. I reply; Consider
what must be assumed, and what must be denied, to bring this argument in
any way to bear upon the question before the Legislature.
First—It must be assumed that the law of the Levirate is a law binding
upon Christians; that it is a law, not simply intended for the Jewish
economy, but that a Christian man is intended to take his brother’s
widow, if he have died childless, and raise up seed unto his brother.
Secondly—It must be assumed that this object is to be attained, not by
the taking the brother’s widow, but by taking the wife’s sister, which is
the object of the Bill, but was not the object at all of the Jewish
legislation, and which, moreover, is absolutely absurd as to the end of
raising up seed unto a brother.
Thirdly—It must be denied that polygamy is forbidden to Christians; for
if the brother in the case supposed have a wife previously to his
brother’s death, (this wife being still alive, but not the sister of his
deceased brother’s wife,) then, according to the law of the Levirate
hereby assumed to be in force, he must still take his brother’s widow to
wife to raise up seed unto his brother.
Or, Fourthly, if the argument be not carried quite so far, and it be
maintained that the brother should say, “I cannot take her, lest I mar my
own inheritance;” or, “I cannot take her, as I have already a wife;” or,
“I like not to take her for I am engaged to another;” or, if he should
for any cause refuse, then, at least, if the law of the Levirate be
binding upon us (which is the argument; for if not, it does not help the
promoters of the Bill at all), the refuser should undergo the penalty
provided in the case, and we should have to witness the scene of the
widow, or the wife’s sister, calling together the elders of her city, and
loosing the shoe of her husband’s brother, or sister’s husband, and
spitting in his face and saying, “So shall it be clone unto that man that
will not to build up his brother’s house;” and we should have to revive
the name of “the house of him that hath his shoe loosed.”
No! Who does not see that the whole scope and intention of the law of
the Levirate was Judaical, and limited to and exhausted by that economy.
And, therefore, if the connection between the law of the Levirate and the
18th verse of Lev. xviii. be established, as I have endeavoured to shew
it is, it will follow that the exception to that law _must_ belong
exclusively to it and expire with it; and, therefore, that the supposed
permission to take the sister, “beside the other,” if it be not “in her
life-time,” has, as I have all along been arguing, nothing to do with us
as Christians at all, but is tied to and restrained by the law of the
Levirate, and of the Jewish dispensation. Under it, it was lawful, it
was enjoined, when a brother died childless, for the brother to take his
wife and raise up seed unto his brother; and this would be lawful and
enjoined in that particular case even when his brother’s widow was his
own wife’s sister, if his own wife, the sister of the other were dead.
But among Christians I cannot believe that any one seriously believes for
a moment that the law of the Levirate remains, and so no one can suppose,
if the 18th verse of Lev. xviii. be merely the exception to that law,
that it has any bearing upon, or gives any permission to, Christians in
their marriages at all. {36}
M. W. M.
APPENDIX A.
The only two passages which I have met with taking the same line of
argument with that of the foregoing letter are the following. In an
appendix to the Speech of Vice-Chancellor Sir W. Page Wood, Feb. 1st,
1860, I find this comment upon the statements in the Mishna:—
“The passages from the _Mishna_ afford singular support to the view
which the Bishop of Oxford, at the late meeting, stated to be held by
some divines in America, viz., that the difficult 18th verse of the
18th chapter of Leviticus was, in fact, a special prohibition against
a wife’s sister being married to her brother-in-law, even when the
exceptional _Levirical_ law (or law by which the brother-in-law was
to raise up seed to his deceased brother) might otherwise have
appeared to supersede the general code of the 18th chapter.”
In an article recently reprinted from the Church Review, of February,
1861, understood to be from the pen of the Rev. T. W. Perry, I find also
this:—
“May it not be, then, that the prohibition simply related to the
(apparently) Patriarchal requirement (see Gen. xxxviii. 8), enforced
in Deut. xxv. 5–10 (that is, _after_ the Levitical prohibitions were
given), which commanded the _next kinsman_ to marry the widow of one
who died without issue, in order to preserve the inheritance? For if
the next kinsman was a brother of the deceased, the duty of raising
up seed to his brother first devolved upon him. But he might refuse
to perform it. In that instance he underwent a kind of punishment.
The widow loosed his shoe and spat in his face before the elders of
his city (Deut. xxv. 8 and 9), and he became stigmatized as ‘the
house of him that hath his shoe loosed’ (v. 10). This liberty to
refuse (see also Ruth iii. 12 and iv. 6) may have been a Divine
relaxation of the Patriarchal rule, designed, perhaps, to render more
effectual the prohibition in Lev. xviii. 18. But it may not
improbably be, that the penalty attached was meant to secure the
custom from contempt, by deterring the kinsman from excusing himself
on grounds which the law of the Levirate (_i.e._, the law of raising
up seed to the deceased brother) did not mean to recognize.”
Then, after some remarks upon the jealousy or vexation likely to arise,
the writer continues:—
“May it not, therefore, have been that God designed, in Lev. xviii.
18, to provide against this evil, which was very likely to attend
upon the performance of the existing rule, and of his own command
(then to be given) touching the marriage of the deceased brother’s
wife?
“Yet, how does this explanation meet the difficulty arising from the
alleged permission contained in the words (v. 18) ‘in her life-time?’
Thus—If the next kinsman’s wife were already dead, or if she died
before the kinsman’s part had been done to the widow, or after that
part had been done by another kinsman, who had died leaving the widow
still childless then, as she _could not be vexed_, the widow’s
brother-in-law was free to marry her, for the purpose specified in
the Levirate law.”
And again:—
“Since this first suggested itself to us, we have learnt (see Tract
x. p. 21, of the Marriage Law Association) that the _Mishna_,
treating of the civil law of the Jews as to marrying the deceased
brother’s wife, says that he may not marry her _if she is his own
wife’s sister_, and, moreover, that the prohibition holds good
_after_ the wife’s death. It is possible that this latter part of
the tradition may be akin to what our Lord called (S. Mark vii. 9)
‘your own tradition,’ and so may have tended to ‘frustrate the
commandment of God,’ in Lev. xviii. 18, by perplexing the
interpretation of the words, ‘in her life-time.”
I may add, however, as shewing my argument to be an independent witness
to the same sense and application of Leviticus xviii. 18, that I had no
knowledge of either of these statements when I sketched out the argument
of the preceding letter.
APPENDIX B.
I have said that I have no need to enter into the question of the “one
hour” mentioned in the Mishna. And this is certainly true, because the
question which I have been considering is not whether, if a wife’s sister
be forbidden at all she is forbidden for ever by both being alive
together at a certain time but simply whether the whole matter involved
in the words “in her life-time” be not explained and accounted for by its
being a prohibition, narrowing the requirements of the law of the
Levirate, and nothing more. But it may be added that the statement of
the Mishna as to the “one hour” is certainly rather confirmatory than not
of the second sister being wholly forbidden, except under that law’s
provision in the case of the death of the one previous to the widowhood
of the other, because if the being forbidden for one hour forbids for
ever, the second sister, whether herself a virgin or the widow of a
stranger, being (like the brother’s widow left a widow in her sister’s
life-time) marriageable to any other man than her brother-in-law, during
all the time of her sister’s married life, (she, I say,) would be all
that time forbidden to him. This would answer certainly to the one hour,
and if so, under the Rule of the Mishna, she would be forbidden to him
for ever, which brings us to the general prohibition under the general
law.
Whether the above inference of the Mishna be a legitimate one from the
words “in her life-time,” that is, that the forbidding should depend for
ever upon the state of things at the time of the brother’s death (as Dr.
M’Caul expresses it), I need not determine. Mr. Perry, in one of the
extracts above, seems to think it might rather be one of the additions by
which the Jews frustrated “the Word of God by their tradition,” and
possibly it was so. But at least we may say that there appears to be a
weighty moral consideration to support the view of the prohibition
extending from one hour to the future life. Because thus, in the case of
a man finding his brother’s wife a widow, being his own wife’s sister,
and perchance preferring her to his own wife, he might otherwise be
tempted to get rid of his own wife, by divorce (so easily obtainable as
divorce became among the Jews) or otherwise, if such after-release set
him at liberty to marry his brother’s wife, being a widow: a temptation
be it observed not occurring as to any other woman left a widow by his
brother’s death, because the tacit sanction given to polygamy under the
Jewish dispensation would in that case render it unnecessary to obtain
release from his own wife at all in order to take her. If the brother
had died childless, he would be enjoined to take her, irrespectively of
his own wife being alive. If not childless, he could never take her at
all. And this moral reason is not perhaps wholly unworthy of
consideration as applying to the general question of marriage with a
wife’s sister in a state of things in which polygamy is forbidden. If
the greater intimacy arising between a man and his wife’s sister might,
if unrestrained by the knowledge that she can never under any
circumstances become his wife, tend to produce attachment, who shall say
it is not a merciful and a wholesome restraint, that she should be
forbidden to him for ever? And this restraint, be it remarked, would be
wholly lost under the change in our law now sought.
APPENDIX C.
The drift of the objection considered in the Postscript may receive an
illustration from that great moral drama, in the plot and conduct of
which horror at the incestuous connection of the king with his brother’s
widow bears so prominent a part. The case of the objector who would make
the law of the Levirate a dispensation for Christians, is just as if
Claudius king of Denmark had pleaded that law, though his brother had not
died childless (for no modern legislation proposes to regard this
limitation), as a reason for taking to wife his brother’s widow;—or, as
if, yet further, had Queen Gertrude died, leaving a sister, he should
plead again that same law (for all modern legislation proposes to go to
this extent), to sanction his afterward taking her also to wife. Surely
all this, as the king says of another matter, is “absurd to reason.”
NOTE TO PAGE 12.
It is of much importance to mark clearly how absolute, upon Dr. M’Caul’s
reading of Leviticus xviii. 18, is the contradiction involved. I add,
therefore:—Let it be well observed that a time beyond that expressed by
the words “_in her life-time_” must be understood to be of the essence of
all the prohibitions. That is to say (and the awful importance of the
matter requires it to be stated plainly), that it is incest and not
adultery which is the subject of the prohibitions throughout. A man is
prohibited from marrying his Mother not merely during his Father’s life
time, but always—his Sister, not merely, if she be married, and, if so,
during her husband’s life-time, but always. So of the Brother’s Wife,
and the rest. Therefore according to the interpretation insisted upon,
the collision is, as stated in the text, a complete contradiction; a
universal negative on the one side met by a particular affirmative on the
other, just as if one should say, negatively, “No horses are black,” and
then immediately add, affirmatively, “Some horses are black.” For, the
statements drawn out in full, including the case by parity of reasoning
from verse 16, would stand thus:—
Thou shalt not take thy Brother’s Wife, whether in thy Brother’s
life-time or not.
Thou shalt not take thy Wife’s Sister, whether in her Sister’s life-time
or not.
Thou mayest take thy Wife’s Sister, if it be not in her Sister’s
life-time.
Such is the over-riding demanded by Dr. M’Caul’s position, and necessary
to the argument if this 18th verse is to be made in any way available for
the purpose of the promoters of the change in our marriage law. The
improbability of such a contradiction within two verses, including an
assumed change in the subject matter, from incest to adultery, in a
continuous catalogue of the enormities denounced, can, as it appears to
me, hardly be exaggerated.
There is one consideration further to which it may be well to call
attention, viz., that the _translation_ of Lev. xviii. 18, is not to be
confused with its _interpretation_. Dr. M’Caul naturally insists much
upon the translation, and in addition to his own critical judgment,
allowed to be of great weight from his known eminence as an Hebrew
Scholar, he gives many authorities in favour of the rendering as it
stands in the text of our authorized version. Still it is to be remarked
that the authorities whom he cites for the translation are by no means at
one with him as to the interpretation. This point will be found very
fully treated of in the second letter of the present Lord Chancellor to
the Dean of Westminster, printed in 1861, {40} and, if I remember
rightly, it was also examined and the result put very forcibly by the
Bishop of Exeter in the postscript to his letter to the late Bishop of
Lichfield, published, I believe, in 1860, where it is observantly noted
that of all our Reformers cited by Dr. M’Caul as having accepted the
authorized version as to the rendering of Lev. xviii. 18, there is not
one who has gone with him in the application of it which he advocates,
inasmuch as they have all either explicitly or implicitly received our
table of prohibited degrees: a proof that even from Dr. M’Caul’s premise,
as to the translation, they have not come to his conclusion as to the
interpretation. And it is plainly in the interpretation, not in the mere
translation, that the above-mentioned contradiction is involved.
Footnotes.
{5} Speech of Vice-Chancellor Sir W. P. Wood. p. 5.
{7} Against profane dealing with Holy Matrimony, by the Rev. John Keble,
pp. 12, 13. J. H. Parker. 1849.
{8} Ibid. pp. 13, 14.
{9} Letter to Rev. W. H. Lyall, by Rev. A. M’Caul, D.D., pp. 1–4.
Wertheim, Mackintosh, and Hunt. 1859.
{10} Speech of Sir W. P. Wood, pp. 5, 6.
{11} Dr. M’Caul’s Letter to Sir W. P. Wood, 1860, p. 55.
{12} See Note at the end of Appendix.
{13a} Appendix A.
{13b} Canon 99.—“None to marry within the degrees prohibited.” “And all
such marriages so made shall be judged incestuous and unlawful.”
A Table of kindred and affinity, wherein whosoever are related are
forbidden in Scripture and our laws to marry together.—_Book of Common
Prayer_.
{14} Letter, p. 55.
{15} St. Matt. xxii. 24.
{16} It may be useful just to state that the law termed the law of the
Levirate is that law laid down in Deut. xxv. 5–10, that in case a Jew
dying childless, his brother should take his wife and raise up seed unto
his brother.
{18} Letter to Rev. W. H. Lyall, p. 14.
{20} Letter to Vice-Chancellor Sir W. Page Wood, p. 29–31.
{21} Appendix B.
{23} Lev. xviii., 20–30.
{24} See Dr. Pusey’s Evidence before the Royal Commission, First Report,
p. 37, questions 431–3.
{30} It is, moreover, evident that something of the kind of the law of
the Levirate was a usage of the Patriarchal times, from the history
recorded as to the sons of Judah in the book of Genesis.
{32} St. Luke xxiv. 27.
{36} Appendix C.
{40} Second Letter of Vice-Chancellor Sir W. Page Wood, pp. 47–63.
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