Part 1

Transcribed from the 1869 James Parker and Co. edition by David Price, email [email protected]

Marriage with a Deceased Wife’s Sister.

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LEVITICUS XVIII. 18, CONSIDERED IN CONNECTION WITH THE LAW OF THE LEVIRATE.

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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.

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Second Edition.

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London and Oxford: JAMES PARKER AND CO. Brighton: G. WAKELING. 1869.

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BRIGHTON: G. WAKELING, PRINTER, NORTH STREET.

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Marriage with a Deceased Wife’s Sister.

A LETTER TO THE RIGHT HON. THE LORD HATHERLEY, _Lord High Chancellor of England_, _&c._, _&c._, _&c._

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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.