Unlawful Marriage: The Lawfulness of the Marriage of a Man with his Deceased Wife's Sister

Front matter

UNLAWFUL MARRIAGE:

AN ANSWER

TO

Introduction

The design of the Puritan's pamphlet is to vindicate the lawfulness of a marriage between a man and his deceased wife's sister. It was prepared and published in opposition to an Act of the General Assembly of the Presbyterian Church, by which, in accordance with their Confession of Faith, and, as they believed, in accordance with the sacred Scriptures, they affirmed the decision of one of their Presbyteries, who had deposed a member for the sin of contracting such a marriage.

It was distributed widely among the members of the Presbyterian Church: and, as the question of the lawfulness of such a marriage had, by appeal, come up before the General Synod of the Reformed Dutch Church, and had, by that Synod, been sent down to all their Classes, to report their judgment on the question to the next Synod, the pamphlet was widely and gratuitously distributed among the members of the Classes, with a view to influence their decision, and to effect a change in the action of that Christian Church in regard to such marriages.

It had doubtless very considerable influence on the members of that Church, and particularly on her younger ministers. The General Synod of the Reformed Dutch Church, at their last session, having received the reports of their Classes, departed from what had heretofore been the uniform practice of their Church, and the Church of Holland, from which they were descended, by resolving, "that all resolutions which may have been passed by the General Synod, forbidding a man to marry his deceased wife's sister, be and hereby are rescinded."

In the year 1816, the venerable Dr. John H. Livingston, Professor of Theology in the Seminary of that Church, prepared and published a dissertation on this question, at the request of the General Synod. It is able and learned.

As early as 1580, Holland, the Doctor shows, declared in an ordinance, "that no persons related in blood, or by affinity, within the forbidden degrees, shall be permitted to cohabit or be married, under penalty of being declared infamous, and subjected to corporeal punishment and heavy fines, and if they persisted in their crime, to banishment." In another ordinance, the forbidden degrees are enumerated; and it is declared, "that no man may marry the widow of his deceased brother, nor may any woman marry the husband of her deceased sister." Pp. 49, 50.

And to prove what construction is put on Levit. 18: 16, by the Reformed Dutch Church, the Doctor quotes from the marginal notes of the translators, appointed by the National Synod of Dortrecht, held in 1618 and 1619, the following words: "From this law it necessarily follows, that a woman who has been married with one brother, may not, after his death, marry with another brother; and, upon the same principle, a man who has been married to one sister, may not, after her death, marry the other sister." He quotes also their note on verse 18, which is as follows: "It consequently can by no means from this be concluded, that the husband, after the death of his wife, may marry her sister." Pp. 162, 163. The following pages, from p. 168 to 172, contain strong additional confirmation, which are commended to the reader's notice.

In the conclusion of his dissertation, this venerable and profoundly learned Professor, long the brightest ornament of his Church, says: "The Reformed Church in Holland has established by her canons, that no man may marry his sister-in-law, and no woman may marry her brother-in-law, and has never deviated from that rule. The Reformed Dutch Church in America, which is the same with the Church in Holland, has adopted the same canons, corresponds with that Church, and is esteemed and beloved by it, as a valuable portion of the same Church, and is bound by the most sacred obligations to transmit unimpaired to posterity the precious treasure with which she is intrusted. There can therefore be no cause for suspense, no motive for hesitation: but, on the contrary, every consideration suggested by faithfulness to God and attachment to His Church, renders it an imperious duty to avoid even the appearance of schism, and strictly to abide by the established canons."

"It has pleased the Lord to preserve this Church during two centuries in America, and render her conspicuous and respectable for her faithful adherence to the doctrines of the gospel and the purity of her morals. It is, therefore, fervently hoped, that this distinguished Church will never relax in her holy discipline, nor tarnish her high and worthy character by abandoning her standards, or rescinding her own canons;—above all, that she will not be the first, the only one in this country, or even in the world, who shall dare to contravene the law of God, and dispense with a crime which he forbids." Pp. 176–178.

In the year 1788, the Particular Synod of that Church resolved, "that as all such marriages are contrary to the word of God, and that purity of life so becoming the Christian character, the persons contracting such marriages cannot be admitted to the table of the Lord until the offence be removed." In 1797, the question "was brought up from the Particular Synod, "Is it lawful for a man to marry his deceased wife's sister?" to the General Synod, who answered the question in the negative, and determined at the same time, that the censure proper to be inflicted on persons contracting such unlawful marriage, had been justly decided on by the Particular Synod of 1788, whose resolution has just been recited.

In 1815, nineteen years afterwards, the question came before the General Synod again for adjudication, when they postponed the decision till the next year. At this session the venerable Professor was requested to write on the subject. See preface to his dissertation.

The next year the vote was taken on this resolution: "Resolved, That so much of the acts of the General Synod, passed in the years 1797 and 1815, recorded on page 264, in the appendix to our constitution, as directs the churches to exclude from sealing ordinances the persons contemplated by those acts, be, and the same is hereby repealed." The vote stood thus: yeas fifteen, nays forty-one; nearly three to one. The names are recorded. "Whereupon it was Resolved, nemine contradicente, That it is inexpedient to make any alteration or modification of the decisions of the Church on the subject of a man's marrying his deceased wife's sister."

Fifteen years after this, in 1842, this vexed question came up again, by appeal from a Classes which had subjected an offender to merited discipline. The Synod sent it down to the Classes to be considered and reported on. The result is before the public. By a vote of forty-eight to twenty-two the resolution already recited (p. 10) was adopted.

The sad event, deprecated by the venerable man who contended for the purity of that Church which he so much loved, and whose interests he had so greatly promoted, has arrived. Were he now living, he would pour out his devout soul in deep humiliation before God, and exclaim, Ichabod!

The feelings of the New England Puritan are doubtless of an opposite nature. The pamphlet bearing this name, to which we now return, is, as a whole, a singular production. It is composed of two distinct essays, written by different persons, and an extract from an essay by a third individual. The Puritan regards the law in Levit. viii. as a Jewish law, having no reference to marriage, and imposing no obligation on other nations. Omicron admits the law to be a law relating to marriage, and prescribing the degrees within which marriage is not to be contracted; but he endeavors to prove the particular marriage in question not prohibited by this law. Dr. Benedict takes the same ground, but boldly affirms this marriage to be lawful, because it is not specified among the prohibitions. In the same way he might prove the lawfulness of marriage between own brothers and sisters; for they are not found among the specifications.

The Puritan willingly calls on writers who occupy ground so entirely different from the ground on which he stands, to assist him in opening a wide door for the marriage of a man with his deceased wife's sister, to pass from a state of dishonor to a state of honor. The success of this combined effort will be tested. We shall see whether those writers can wipe away the disgrace, which past ages have stamped upon such connexions.

We find too in this pamphlet, an extract from a letter of the late Judge Brockholst Livingston, dated Dec. 12, 1817. It contains not a single argument. All is naked assertion.

A man of that name once lived in New York. Destitute of moral courage sufficient to refuse a challenge to fight a duel, he accepted it, and killed his antagonist. Is this the man from whose simple assertion the Puritan is willing to call for aid? How unfortunate!

Chapter I

Remarks on the Puritan's historical facts.—His inaccuracies.—Selden.—Philo Judæus.—Misrepresentations of Jeremy Taylor.—Taylor's error.—Burnet.—Universities of Europe.—The Protestant Churches.—The national Synod of France.

The heading of the Puritan's sixth chapter is thus expressed: "Historical view of the subject."

What was his subject? He aimed at proving two points:—I. That the Levitical law is not binding on us Christians, (chap. i.) II. That it did not relate to marriage at all, but only to "single acts of an incestuous character," (chap, iii.)

1. We protest against his assertion in the second paragraph of this sixth chapter: "He (Christ) even allows that for the most part their expositions of the law were true and to be observed;" which he attempts to sustain by this passage: "The Scribes and Pharisees sit in Moses' seat; all therefore whatsoever they bid you observe, that observe and do." (Matt. 23:2, 3.)

Before the Saviour had uttered this, He had upbraided these Jewish teachers with making "the commandment of God of none effect by their tradition;" and with "teaching for doctrine the commandments of men;" and He had stigmatized them as "blind leaders of the blind." (Matt. 15: 3, 6, 9, 14.) At another time (Matt. 16: 6, 12) He had given his disciples this general caution: "Take heed and beware of the leaven (doctrine) of the Pharisees;" and, in the very chapter quoted from by the Puritan, our blessed Lord thunders out against these false teachers the most terrible denunciations; denominating them "fools and blind guides," and closing the whole in this awful language: "Ye serpents, ye generation of vipers, how can ye escape the damnation of hell?" (v. 33.) Was it correct in the Puritan to assert of teachers thus characterized by Christ, and in regard to whom He cautioned his disciples, that He "allowed their expositions of the law" to be, for the most part, "true, and to be observed." Surely not; He only meant, his disciples were to receive as true, and observe what they taught according to the law of Moses. They were to act as the noble Bereans did, when Paul preached to them; they "received the word with all readiness of mind, and searched the Scriptures daily, whether those things were so." (Acts 17: 11.) No intelligent commentator, such as Doddridge, Scott, or Clarke, will sustain the Puritan's interpretation.

2. We think he has failed to derive support from these blind leaders; for the Talmudists, whom he calls "the successors of the Pharisees," (p. 21,) certainly did regard the Levitical statutes as referring to marriage, and prescribing its limits. The Karaites too and the Hebrews put on the law the same construction.

3. Nor has the Puritan proved what he thinks "undisputed:" "the Talmudists tell us that the ancient Jews practised the marriages in question, and did not regard them as forbidden by the law of Moses." (Chap. VI. 2d par.)

What is his proof of this confident assertion? A quotation from Selden, which he translates thus: "The Karaites regard the marriage of a wife's sister, both while the first is living and after her death, as forbidden. But the Talmudists teach otherwise." The original, "Quod non admittunt Talmudici," is weaker than the above translation. But let it pass.

On this quotation we remark: 1. Selden does not speak of any testimony borne to a fact or ancient custom of the Jews, either by the Talmudists or by the Karaites; but only tells us how each sect interpreted the law. 2. Selden does not say, the Talmudists have informed us how the Pharisees interpreted the law; nor has he marked the period when the Talmudists began to teach this doctrine. He only informs us they taught it, when the Karaites taught the opposite. Now, let it be remembered, the Karaites were not formed into a regular sect till the year 759. Yet this single quotation from Selden, the Puritan magnifies in his next paragraph (p. 22) into "the united testimony of a nation embodied in the Talmuds."

The Puritan claims to be a descendant and successor of the Puritans who settled in Massachusetts a little more than 200 years ago. Suppose his pamphlet should hereafter fall into the hands of an individual yet to be born, and he, from the Puritan's name, should infer that he had justly represented their faith and practice; would the inference be true in point of fact? To use the writer's own words, "We trow not." The Westminster Confession of Faith was, in 1648, with the exception of what relates to Church government and discipline, adopted by those Puritans, with the highest commendation. No alteration was then made in the section relating to Incest.

Had our brother extended his acquaintance with Selden, he might have found a passage more suited to his purpose. Speaking of the six blood relations of the wife, whom, in the opinion of the Hebrews, it was unlawful for her husband to marry, whether legitimate or illegitimate, Selden goes on to add the seventh: "Nec demum septimam, uxoris nempe sororem sive uterinam sive germanam, dum illa superstes; tam etsi fuerit repudiata. Nam de uxoris sorore jam demortuæ nunquam dubitarunt; cum verba legis de uxore sint, dum ipsa adhuc vivit." But even this, on examination, will be found to be insufficient to support the Puritan's confident assertion noticed above.

The authority for the statement made in the quotation adduced by our brother, is the passage we have just cited. Now, if Selden had referred to Philo Judæus, or to the Mishna or Gemarra, as his authority for saying the Hebrews did not doubt the lawfulness of marrying a deceased wife's sister, it would have been better supported. His authority is either Salomon Jarchi ad Levit. 18: 18, and Maimonides, celebrated Jewish writers who lived in the twelfth century, many ages after the time of the Pharisees; or no particular authority.

Philo Judæus, who was born about the commencement of the Christian era, does not assert the lawfulness of the marriage in question, which he would have done, if that had been his opinion; or he would have stated the marriage to be customary among the Hebrews, if that had been the fact. He does neither. We have before us a transcript of his original Greek, with the accompanying Latin translation, and an English version, all kindly furnished by a learned friend who had access to Philo's works. As our friend favors the marriage under debate, his English translation will be received as correct by our opponents. We give his words: "Again (Moses) does not permit a man to marry two sisters, either at the same time or at different times, even though he may have put away the one whom he took first in marriage. For, during the lifetime of her that remains with her husband, or of her that has been sent away, whether she remain a widow, or be married to another man, (Moses) accounted it unholy for the sister to take the place of her that has been unfortunate; teaching them not to violate the right of consanguinity, nor to rise by the fall of one so united by descent, nor to delight and exult in being served by her sister's enemies, and in serving them in turn. For from these things arise violent jealousies and fierce contentions, producing an unspeakable multitude of evils."

Philo, in this passage, certainly does not assert it to be lawful for a man to marry his deceased wife's sister. He asserts it to be a violation of the divine law, for a man to marry two sisters, either at one time, or at different times, while the first wife lives; and to be unlawful for her sister to form a connexion with her husband. He is silent in regard to what might be lawful after the death of the first wife. Now, if the Jews had never entertained a doubt, as Selden says, of the lawfulness of such a marriage on the death of the first wife, is it not highly probable that Philo would have stated the fact?

This appears the more probable, when we compare Philo's statement with the comment on Levit. 18: 18, by that famous Jewish Rabbi, Jonathan the son of Uzziel, who was contemporary with Philo. It is in these words: "Mulierem etiam vivente sorore non accipies, ad affligendum eam, ad revelandum turpitudinem ejus super ipsam, omnibus diebus ejus."

Both writers agree in teaching, that the divine law prohibited a man to marry his wife's sister while she was living; and both are silent in regard to what might be done after her decease. The comment of Jonathan differs, in the words he uses, but little from the text itself.

Now, if the Jews had never doubted that it was lawful for a man to marry his sister-in-law after the death of his wife, is it not highly probable the fact would have been stated by one or both of these writers, when giving the meaning of the prohibition in Levit. 18: 18? Is not their silence proof to the contrary?

But if we were to admit it could be proved, that such an interpretation was put on the Levitical law by the Scribes and Pharisees, in our Saviour's time, what will the Puritan gain? Are we to bow to their judgment? Christians are as competent to interpret a written law as they were; for, although they were nearer to the time of the giving of the law than Christians of the present day, yet they were not nearer than Primitive Christians. Besides, let it be remembered that, between the time of these Jewish expounders of the law and its first publication, there had intervened fifteen hundred years; ample time for great changes in opinion and mournful departures from the spirit and true meaning of the law.

Great corruption in faith and practice had, in fact, taken place among the Jews, when our blessed Lord, the great Teacher, came into the world. They were ignorant of the true meaning of their prophetic writings, and earthly in their expectations of the benefits to be derived from the coming of the long promised Messiah, or they would not have rejected and crucified Him, when He came to bless them with His salvation. They were, as our Saviour says, a "wicked generation." (Matt. 12:45.) The Scribes and Pharisees too had, we have seen, corrupted the law by their traditions, and were denounced by the Redeemer as "blind guides," and as a "generation of vipers." And are we to defer to the judgment of such expositors of the law; we who live under the Christian dispensation, and enjoy all its increased light and privileges? The Jewish teachers had, by their tradition, made of none effect that commandment of God which requires us to honor our parents; and would it be safe to rely on their interpretation of a law that laid a restraint on their animal passions?

4. Here it may be proper to correct a quotation of the Puritan, on page 10, from Jeremy Taylor's Ductor Dubitantium. There he has fallen into a strange mistake. He cites indeed the words of Taylor; but, by an unfortunate application of them to a wrong period of time, he represents him as testifying in opposition to his own written testimony. Jeremy Taylor does not say, that, in the reign of Henry VIII. "there was almost a general consent upon this proposition, that the Levitical degrees do not, by any law of God, bind Christians to their observance." He says the contrary, as will appear from his own words. On page 222 he thus speaks: "For all those degrees in which Moses's law hath forbidden marriages, are supposed, by very many now-a-days, that they are still to be observed with the same distance and sacredness; affirming, because it was a law of God, with the appendage of severe penalties to transgressors, it does still oblige us Christians." Subsequently he adds: "For though was then" (Henry's time) "much divided, yet before then there was almost a general consent upon this proposition, that the Levitical degrees do not, by any law of God, bind Christians to their observance." Thus it appears the Puritan has fallen into an unfortunate anachronism. We are inclined to believe he quoted Taylor at second-hand, without examining his work for himself.

Taylor's testimony, in regard to the agreement on the proposition he names, cannot be admitted; because it is merely negative, and his examination of the Schoolmen was altogether too limited. He says only one schoolman dissented from this proposition. In this he appears, from the statement of Burnet, in his History of the Reformation of the Church of England, to have been entirely mistaken. This historian has given an abstract of what was published about Henry's divorce. In that abstract, after stating the explicit testimony both of the Greek and Latin fathers in favor of the permanent obligation of the Levitical prohibitions, he says: "They observed that the same doctrine was also taught by the fathers and doctors in the latter ages;" and then particularly names seven of them. He afterwards adds: "From these doctors and fathers the inquiry descended to the Schoolmen, who had with more niceness and subtilty examined things. They do all agree in asserting the obligation of these Levitical prohibitions." After naming a number of the Schoolmen, he subjoins: "All the Canonists were of the same mind." How entirely opposite is this positive and specific testimony to the general and negative testimony of Jeremy Taylor!

5. The decision of this question by the different Universities of Europe our brother disposes of in a summary way, by imputing it to corrupt influence, Henry's power and gold. An accusation is one thing, and proof is another thing, entirely different. What influence had Henry with the Universities of France, in opposition to that of the Pope and the King of France? But passing by this rash insinuation, to sustain which no proof is attempted, let us look at what is said by the Puritan of the of Germany: "Though all this did not avail to secure the Protestants of Germany in this error." Again, p. 10, 2d par.: "The Protestant Church of Europe, at that early day, seems to have had no idea that the law of Moses bound us in this particular." He then quotes Luther and Melancthon in support of his assertion.

If the Puritan had read Dr. Livingston's dissertation on this subject, he would have been preserved from this unfounded assertion; for that venerable man has quoted the closing part of the famous letter written "by those celebrated divines, who, in the name of their Church, replied to the inquiry made by Henry VIII. whether it was lawful for a man to marry his sister-in-law." Let it be transcribed: "It is manifest and cannot be denied, that the law of Levit. 18, prohibits a marriage with a sister-in-law. This is to be considered as a divine, a natural, and a moral law, against which no other law may be enacted or established. Agreeably to this, the whole Church has always retained this law, and judged such marriages incestuous. Agreeably to this, also, the decrees of Synods, the celebrated opinions of the most holy fathers, and even civil laws, prohibit such marriages, and pronounce them incestuous. Wherefore we also judge that this law is to be preserved in all the Churches as a divine, a natural, and a moral law; nor will we dispense with or permit in our Churches, that such marriages shall be contracted: and this doctrine we can, and, as God shall enable us, we will resolutely defend." Now whatever Luther or Melancthon may have hastily written, it is not likely that they, after mature deliberation, differed from these brethren of their Church, who, having solemnly investigated the subject, wrote their noble letter.

Let the reader turn to pp. 153 and 155 of the Doctor's dissertation, and he will see that Zuinglius, Calvin, and Ecolampadius speak in strong language about the binding authority of the Levitical law of marriage.

Further, to show the views entertained by the Protestant Churches of Europe, we submit for consideration the following acts of the National Synod of France. In the second National Synod, held at Poictiers, in the year 1560, the question of the lawfulness of the marriage under discussion, was decided. The following is their record: "May a man lawfully espouse the sister of his deceased wife, who has left him children begotten on her body by him? To which was answered, That this is in no wise lawful nor expedient, and the Church must see to it, that no such marriages be solemnized in it."

In the records of the transactions of the Fourth National Synod, held at Lyons in 1563, we find this minute: "It being demanded, Whether it were only a prohibition of humane laws, that the widow of a deceased brother might not be married to his surviving brother? The Council answered, That such marriages were also forbidden by the word of God; and though, under the law of Moses, it was ordained, that, when the elder brother died childless, the younger brother should raise up seed to him; yet this was only a temporary law to God's ancient Israel, and intended only for the preservation and distinction of their tribes." This noble body of Protestants of Europe knew how to distinguish between what was temporary and what was permanent, in the laws of Moses: and that they knew how to distinguish between a civil and a divine ordinance, may be seen from a record, (p. 19, sect. 23,) where, in reference to the case of a man, who, having promised marriage to the cousin-german of his deceased wife, had carnally known her, and had a child by her, before marriage, it was answered: "That forasmuch as the marriage of cousin-germans is not prohibited by the word of God, although it be by our magistrates, it is advised, That they shall separate for some time, and make public confession of their fault before the Church; and then the minister, reproving it, and admonishing that none offend for the future in this manner, they shall be married."

Here is decisive proof of the views entertained by the Protestants of Europe, in regard to the binding authority of this law of Moses. No one will affirm that these Protestant French and Lutheran divines were either seduced by Henry's bribes, or subdued by the influence of his authority.

Chapter II

Subject continued.—Grotius.—Calvin.—Selden.—Chief Justice Vaughan.—Jeremy Taylor.—Chancellor Kent.—Dr. J. P. Wilson.—Judge Story.—Change of Sentiment.—Its Origin.

6. Having already noticed how the Puritan has erred in his quotation from Jeremy Taylor, this may be the proper place for testing his claims to certain great and learned men, who, he says, (p. 23,) "have plead for the lawfulness of such marriages." It belongs to the history of this subject.

Grotius heads the list. By what authority this great and learned man is claimed as advocating the Puritan's cause, does not appear. Reference is had to his interpretation of Lev. 18:18, (p. 21, par. 2;) but it will appear inconclusive, when compared with the following quotations; which prove—1. That he considered the Levitical statutes as determining the limits of marriages;—2. That he believed them to be binding on all men;—and 3. That he asserts they were so regarded by the Primitive Christians.

Grotius says, "The next question is about all the degrees of affinity, and the degrees of consanguinity in the collateral line; those especially which are particularly mentioned in the xviiith of Leviticus. For granting that those prohibitions were not derived from the mere law of nature, yet do they plainly appear to have their sanction from an express order of the Divine Will: nor is this such an order as obliges the Jews only, but all mankind; as seems to be very fairly collected from those words of God to Moses, "Defile not yourselves in any of these things; for in all these the nations are defiled, which I cast out before you." Again, "Ye shall not commit any of these abominations: neither any of your own nation, nor any stranger that sojourneth with you: for all these abominations have the men of the land done, which were before you, and the land is defiled."

In section 14, of the same chapter, he says, "But yet the Primitive Christians were very much in the right of it, who voluntarily observed not only those laws which were given in common to all men, but those which were peculiarly designed for the Hebrew people; nay, and extended the bounds of modesty to some farther degrees of relation, that in this virtue too, as well as in all others, they might excel the Jews. And that this was done early, with universal consent, appears from the Canons. St. Austin, speaking of cousin-germans, both by the father and mother, marrying among Christians, They, says he, seldom practise what the law allowed; because, though the law of God has not forbid it, they dreaded, however, a warrantable action, for its nearness to what is unwarrantable."