# Review of a Pamphlet from the Churchman's Magazine, Entitled Marriage With a Deceased Wife's Sister/Third Paper

THIRD PAPER.
We have yet to notice the Jewish and early church authorities to which the Churchman's Magazine writer appeals in support of his assertions as unscriptural and immoral what never was prohibited by the laws of any country in the world before the fourth century of the christian era; what is now lawful in every country in the world except Great Britain and Ireland since 1835, and what is sanctioned by the brightest ornaments of our church in both Europe and America, as we shall show before concluding this paper.
THE MAGAZINE WRITER'S MISREPRESENTATIONS OF HIS OWN AUTHORITIES—THE MISHNA.
The writer has either never read the works which he professes to quote. or he knowingly misrepresents them; for in every instance except one do they declare the very opposite of what he represents them as having stated. His first reference is to the Mishna. He says
“The negative testimony of Scriptune [against the lawfulness of a man's marriage with his deceased wife's sister] is irresistibly substantiated by the most ancient traditionary laws of the Jews—the Mishna. There is no dispute that the Mishna is the most exact representation of ancient Jewish opinion," (pg. 14.)
It might be supposed, after such a pretentious ﬂourish, that the writer would have adduced some very explicit quotations from the Mishna in support of his formidable, but we hesitate not to say perfectly groundless, statement. He quotes not one passage bearing on the subject, but represents the Mishna as using certain terms and stating certain things, and even laments Dr. McCaul's ignorance of the Mishna!-Very like a candle sitting censor on the sun for not knowing how to give light!
We will quote one passage from the Mishna, from the next chapter (iv. 13) to that which this writer has referred to as sustaining his statements. That there may be no mistake, or cavil, we first give Surenhusius Latin version of the passage and then an English translation:
​"Si mortua fuerit uxor ejus, licitus est sorori ejus; si repudiaverit eam et mortua fuerit, licitus est sorori ejus; si fratria illius mortua fuerit, licitus sorori ejus; si calceum illi dederit exeundum, et mortua fuerit, licitus est sorori ejus; si nupserit alii, et mortua fuerit, licitus est sorori ejus."
This passage is decisive on the point. The translation is as follows:
"If his wife die, he is allowed to marry her sister. If he divorce her, and she die, he is allowed to marry her sister. If she be married to another man and die, he is allowed to marry her sister. If he have performed to her the ceremony of taking off the shoe, and she die, he is allowed to marry her sister; if she marry another man, and die, he is allowed to marry her sister."
The Mishna is a collection of legends and expositions said to have been learned by Moses in the mount, and handed down by tradition. It was compiled in the second century, and testifies what was the common and received sense of the law among the Hebraizing Jews. The Magazine writer says, "it is the most exact representation of the ancient Jewish opinion;" and the above passage from the the Mishna declares that opinion to be precisely what we have alleged to be the law of Moses understood by the ancient Jews. As Dr. McCaul says, "The Mishna, whatever its defects, gives no uncertain sound in this matter. It uniformly adheres to the ancient interpretation of Leviticus xviii. 18."
THE MAGAZINE WRITER'S MISREPRESENTATIONS OF MAIMONIDES.
Next the Magazine writer professes to quote Maimonides as an authority in support of his views, but omits the very passage which bears on the point in discussion, and professes to infer certain things from other words which relate not to the subject. The words of Maimonides, in the English translation, are as follows:
"When a man has betrothed a wife, there are six women of near relations prohibited to him, and each one of them is prohibited for ever: and those are they, her mother, and her mother's mother, and her father's mother, and her daughter, and her daughter's daughter, and her son's daughter, and if he approach any one of these in tho life-time of his wife, they are burnt, . . . . . . and so his wife's sister is prohibited to him until his wife die." (Hilchcloth issure biah, ​ch. ii., sections 7, 9.) Thus Maimonides in his famous digest of the Jewish law, says that some women are forbidden for ever, but the wife's sister only until the wife die.
THE MAGAZINE WRITER UNFAIRLY REPRESENTS JOSEPHUS' VIEWS.
The magazine writer, in quoting Josephus, is careful not to notice the kind of marriage with a brother's wife which was detestable among the Jews. Glaphyra had had three children by her first husband. On his being slain by his father, she took a second husband. Then the brother of her first husband divorced his wife to marry her. The law of Moses had commanded a man to marry his brother's widow only when his brother had died childless, and did not permit the divorcing of a wife in order to marry a brother's widow. Such a marriage as that of Glaphyra was, of course detested among the Jews.
MODERN JEWISH AUTHORITY IGNORED BY THE MAGAZINE WRITER.
We have shown above that both the Mishna and Miamonides state the very opposite of what the magazine writer represents then to have stated. We will add on this point the testimony of Dr. Adler, the Chief Rabbi of the Jews in the British Dominions. In his evidence before the Royal Commisioners, Dr. Adler says:—It is not considered as prohibited, but it is distinctly understood to be permitted; and on this point neither the Divine law, nor the Rabbis nor historical Judaism, leaves room for the least doubt. I can only reiterate my former assertions that all sophistry must split on the clear and unequivocal words of Leviticus xviii. 18, in her life-time:"
This may be considered as settling the question so far as Jewish testimony, ancient and modern, is concerned.
THE MAGAZINE WRITER'S MISREPRESENTATION OF CHURCH HISTORY.
Finally, we will follow this writer in noticing the authorities he professes to adduce "as to the judgment of the Church on this matter." But he adduces not a single authority during the first three centuries of the Christian Era, and for a very good reason, there is not one for him to adduce. This is a ​long and most important interval, during which the Church was founded, endured its bloodiest persecutions, and achieved its noblest triumphs. At its foundation, as Dr. Alexander McCaul observes, "If Christians were to resist the prevailing practice, a special interposition was necessary. The Jews thought it lawful to marry a wife's sister. The Gentiles thought it lawful to marry a wife's sister. Converts of both classes would, unless instructed to the contrary, carry their previous ideas into Christianity. Is there any evidence to show that they were so instructed? There is none in the Gospels or Epistles—there is none (as has been shown) in the translations of the Scriptures used by the Jewish, Syrian, Greek and Latin Churches. These versions are all favourable to the marriage with a wife's sister."—" Having given the concurrent testimony of the three greatest Bible-scholars of their age, and that age the end of the fourth and beginning of the fifth century, in addition to the Septuagint, the Syraic and the Italic versions, I have done enough to show the opinion of the Church for the first 400 years. My witnesses do not, like yours, fall short of the foundation of the Christian Church by 300 years. The Septuagint dates 280 years before it. Onkelos and Philo are contemparaneous with the Church's foundation. The Mishna, the ancient Italic, and the Syraic versions witness as to the interpretation in the second century. Theodore and Augustine show the reception in the Syrian and African Churches, much about the same time that Jerome arose to make the ancient interpretation the heritage of the Western Church for many centuries." (Letter to Sir Page Wood, pp. 37, 99.)
THE MAGAZINE WRITER ON THE XIX. APOSTOLIC CANON.
The first testimony of the magazine writer "as to the judgment of the church," on the subject is " The XIXth of the Apostolic Canons, allowed by all to be ante-Nicene, which says, 'He who hath married two sisters, or his brother's or his sister's daughter, cannot be a clergyman.'" (p. 16.) In Dr. Pusey's examinations before the Royal Commissioners on this subject, the question (444) was asked him,—"When was the earliest period in the Christian Church at which notice was taken of these marriages ?" His reply was, "In the Apostolic Canons, canon 19, one had so married, or had married a niece, was forever excluded from the clergy.' ​Question 445,—"What is their date?" Answer,—"I can only say that it is in Ante-Nicene collection." On this Dr. A. McCaul remarks:—"This is a vague reply. 'Ante-Nicene' takes in 325 years. How long then before the Council of Nice were these Canons collected, one year or 300 years? Some make the collection Post-Nicene. According to the judgment of Von Drey, one of the latest and most esteemed writers on this subject, the collection of the so-called Apostolical Canons is later than the Apostolical Constitutions, and the latter did not exist until the fourth century. If, therefore, we admit the collection to have been made and known as early as the Council of Nice (A.D. 325), there would still remain an interval of above three hundred years without any testimony on the subject, and also the question as to the measure of the authority which they possess, as a collection, and the still more difficult question of the date and origin and authority of the 19th Canon. Moreover the 19th Canon only says,
That he who married two sisters or niece [or, as some translate, a cousin] cannot become a clergyman.' It contains no prohibition, but testifies to the fact that such marriages were not unusual. In point of fact, therefore, the Apostolical Canons are valueless as an authority as to the lawfulness or unlawfulness of the disputed marriage, or even as to the date of the first notice of it in the Christian Church." [Ancient Interpretation of Leviticus xviii. 18, as received by the Church for more than 1,500 years, &c., &c., pp. 46, 47.]
THE TESTIMONY OF ST. BASIL, EXAMINED.
The Magazine writer's next testimony "as to the judgment of the church," is "St. Basil, in the 4th century," (pg. 16), as saying, "our custom in this matter has the force of law, because the statutes we observe have been handed down to us by holy men; and our judgment is this, that if a man has fallen into the sin of marrying two sisters, we do not regard such a union as marriage, nor do we receive the parties to communion with the Church until they are separated." It will be recollected that these words of St. Basil occur in a controversial letter against an opponent. On this point also we avail ourselves of the remarks of Dr. McCaul, who observes: "'The custom established among us,' 'our custom,' and still more the Greek to par hemin ethos, speak only of that which was local. There is not the least mark of ​versality about them. Par hemin can never signify "in the whole church." Moreover Basil does not even speak of it as a law of the church, but only a custom, nor of the custom as having been handed down from the Apostles, but by "holy men." Had St. Basil known of an universal custom, it would have been much more to his purpose to have urged that universality, as being necessarily known to the person against whom he argued. Could he have have adduced the practice of the Universal Church, or the authority of the Apostles, he would hardly have confined himself to that of his own diocese and his predecessors. St. Basil's caution is to me a proof that his custom was not the practice of the Universal Church, and that he was aware of the fact."
THE AUTHORITY OF THE VATICAN MANUSCRIPT QUOTED.
The Magazine writer's next appeal is "the Vatican Manuscript of the Septuagint (lately published by Cardinal Mai,") which we are told, "contains the text of a curse against those who lie with their wife's sister, in Deuteronomy xxvii. 23.—an important witness of the opinion of the early age in which that MS. was written." (p. 16). In 1850, the Rev. E. W. Grinfield, London, addressed and published "An Expostulatory Letter to the Rt. Rev. N. Wiseman, on the interpolated curse," to which the Magazine writer now appeals as his final authority as to the "judgment of the Church." "The interpolation of the additional curse (it has been observed), in Deuteronomy xxvii. 23. according to the Vatican copy of the lxx, falls probably about the time of Sr. Basil. Tischondorf thinks that the Vatican Mauuscript was written before the time of Jerome. It is of no use, therefore, in filling up the hiatus between the Apostles and that time. If the curse were genuine, it could only apply to him who married a wife's sister in her lifetime, as curses could only fall on transgressors of the law. But it is manifestly an interpolation. It was not known to St. Basil- It is not found in the Alexandrian Manuscript, written in the home of the lxx version, nor in the versions made from it. Its citation by Siricius seems to point to a western origin."
THE MAGAZINE WRITER ON LUTHER AND THE "WESTMINSTER DIVINES."
The Magazine writer finally appeals to the authority of Luther and the Westminster Assembly of Divines, though ​he he cites not a word from either! As to Luther, we may remark, that his translation of the Pentetuch first appeared in 1523. The whole Bible, revised by himself, Melancthon, Cuiciger, Justus Jonas, and Bugenhagen, was published in 1630. But however bent on reform and opposed to Popery, they retained the translation of Leviticus xviii. 18. common in the universal church.—And as to the Westminster Assembly of Divines, we quote their words in the Commentary on Ruth, chap. iv. 5-11, and leave our clerical friend to make out of them what he can:
"And the Lord make the woman that is come into thy house like Rachel and like Leah, which two did build the house of Israel,"—"who, leaving their country, and following Jacob, as now Ruth hath done, lived comfortably and lovingly together, and bearing many children, multiplied Jacob's posterity and the Church of God."
THE CHURCH SILENT ON THE SUBJECT FOB 300 YEARS.—SECOND MARRIAGES FORBIDDEN ALTOGETHER.
It has been shown above, even from the evidence of Dr. Pusey, that no testimony is found in the history of the Church against the marriage of a man with his deceased wife's sister during the first 3OO years of the Christian Era. But long before the date of the 19th so-called Apostolical Canon,—the date of the first objection in the Church to marriage with a deceased wife's sister,—authorities can be found against second marriage at all; and the prohibition of marriage to the clergy altogether is contemporaneous with prohibiting marriage with a deceased brother's widow. The testimonies against second marriages commence before the end of the second century. Athenagoras, between the years 160 and 170, in his apology, boasts that the practice of Christians was to remain unmarried, or to many only once; "For (he says) a second marriage is a sort of decent adultery." About the same time, Theophilus of Antioch affirms that among Christians "Monogamy is observed." Contemporary with these Tertullian, before he embraced the errors of Mantanus, wrote two books to his wife to warn her against a second marriage, as contrary to the original institution,—"Nam et Adam versus Eve maritus, et Eva una uxor illius, una mulier, una costa." (For both Adam was the one husband of Eva, and Eva his one wife, one woman, one rib.) In ​the next century Origen declared that second marriage excludes him that is guilty of it from being bishop, priest, or deacon. The Council of Neo-Cesaraea (A.D. 314) forbids, by its seventh Canon, priests from even being present at a second marriage.
THE SUCCESSIVE STEPS OF FIRST FORBIDDING SECOND MARRIAGE ALTOGETHER,—THEN MARRIAGES WITH A DECEASED WIFE'S SISTER,—AND FINALLY FORBIDDING THE CLERGY TO MARRY AT ALL.
We might multiply authorities, and give the original authorities on which those summary statements are founded, did our limits permit. It is not surprising that when second marriages (whose only authority from Scripture is inference) had been long forbidden, that marriage with a deceased wife's sister, for which Scripture authority was more explicit, should begin to be forbidden; and the prohibition of the clergy to marry at all soon followed. The Provincial Spanish Council of nineteen Bishops, which was held at Eliberis A.D. 305, the first Council to forbid marriage with a deceased wife's sister, was also the first to forbid the marriage of the clergy. The Council of Neo-Cesaraea, held A.D. 314, the second Council to forbid the marriage with a brother's widow, was tho first to command the degradation of priests who marry after ordination.
Look, then, at these facts: The prohibition against marriage with a deceased wife's sister did not begin until 305; but the condemnation of second marriages began as early as 170, and soon obtained in every part of the Church—in Africa, in Greece, in Italy, in Asia Minor, in Spain, in France; and the first two Councils that forbade marriage with a deceased wife's sister, were the two first Councils that forbade the marriage of the clergy at all, though none of the six General Councils, held between A.D. 325 and A.D. 680, condemned marriage with a deceased wife's sister. If the magazine writer, then, be consistent and sincere in his appeal to early Church authority, he must forthwith oppose all second marriages, and the marriage of the clergy altogether.
RECAPITULATION OF OMITTED FACTS AND AUTHORITIES.
We have now reviewed, and, we think, refuted the criticisms and arguments of the magazine writer—omitting, of course his personalities and quibbles to give them point, as beneath notice.
We will, in conclusion, state and recapitulate certain facts, and then adduce certain authorities bearing upon the whole question. The facts to which we beg the recollection of our readers are the following:—
1. The law of marriage in England and Ireland down to 1835 was as follows, as stated in 32 Henry viii., c. 38: "By this act we declare all persons to be lawful, that be not prohibited by God's law to marry." The law of marriage in Scotland is thus stated in Statue 1558, c. 16: "Our Sovereign Lord with consent, &c., has ordained the holy band of marriage made by all estates and sorts of men and women to be as lawful and as free as the law of God has permitted the same to be done without exception of person or persons." No complaint was made of the operation of the law from the Reformation to 1835, during which period the marriage in question was virtually permitted and contracted—its absolute prohibition dating from 1835, and therefore being a recent innovation, a gross injustice to thousands, and, as Robert Southey called it, "an abominable relic of ecclesiastical tyranny."
2. As such marriage is held in the Church of Rome to be an ecclesiastical regulation, the revenue of the Pope has been much augmented at various times from the payments of large sums by Princes and numerous others to procure the Pontiff's dispensation or permission for such marriage; and other ecclesiastical and agents have received much money for their services in obtaining the Pope's dispensations for such marriage. These facts are referred to in some statutes passed during the reign of Queen Elizabeth, as well as related by historians of the Reformation; but there is no record of any condemnation of such marriage in the Christian Church from its first foundation until 305; and the Bench of English Bishops voted to legalise marriages with a deceased wife's sister celebrated previously to 1835—a measure to which it was impossible they should have assented had they believed such marriages to be contrary to the Word of God.
​3. Twenty-six Spiritual Peers, including two Archbishops, have declared it to be their opinion that there is no scriptural prohibition of these marriages, more than 100 of the London Metropolitan clergy have petitioned Parliament for the legalization of such marriages; eleven Deans and more than 300 other clergymen of the late Esatablished Church of Ireland have expressed their decided opinion that these marriages are not prohibited in Scripture; the Deputies of the three denominations of Dissenters in England, have repeatedly petitioned Parliament to repeal the Act of 1835 prohibiting such marriages; and the House of Commons, in 35 divisions, (commencing with 1835, before public discussion had taken place on the marriage question) have voted for the repeal of the almost smuggled and hastily passed Act of 1835. The Legislature of South Australia has for the fifth time, by almost unanimous votes of both Houses, passed a Bill for legalizing such marriages, and within the last few days it is announced that Her Majesty has given the Royal Assent to the Bill—thus making such marriages legal in England, as well as in South Australia, so far as Australian residents contracting such marriages are concerned.
OPINIONS OF DISTINGUISHED ENGLISH AND AMERICAN DIVINES AND JURISTS.
To conclude. Out of upwards of one hundred and thirty opinions of distinguished Divines, scholars, jurists, and statesmen, in both Europe and America, which we have collected on this subject,—all speaking to the same effect,—we will quote a few in regard to the moral influence as well as Scriptural character of these marriages. The late celebrated Cardinal Wiseman gave the following evidence before the Royal Commissioners on this subject in 1818:
"Question.—Do you construe that passage in Leviticus (xviii. 18.) as prohibiting marriage with a deceased wife's sister, or merely us saying that a man should not take two wives together at the same time, being so related?
"Answer.—Certainly, that verse appears to have the latter meaning, that two sisters should not be living together in the same house, wives of tho same person.
"Question.—Is such marriage held by your church as prohibited in Scripture?
"Answer.—Certainly not. It is considered a matter of ecclesiastical regulation."
​The Royal Commissieners, appointed June 28th, 1847, to to enquire into the state of the law relating to marriages of affinity, state as follows;
"Some persons contend that these marriages are forbidden expressly, or inferentially, by Scripture. But it does not appear from the evidence that this opinion is generally entertained. We do not find that the persons who contract these marriages, and the relations and friends who approve them, have a less strong sense than others of religious and moral obligation, or are marked by laxity of conduct. These marriages will take place when a concurrence of circumstances give rise to mutual attachment; they are not dependent on legislation." Report signed by the Bishop of Lichfield Mr, Stuart Wortley, Dr. Lushington, Mr. Blake, Mr. Justice Williams, and Lord Advocate Rutherford,
The most Reverend Dr. Tait, present Archbishop of Canterbury, said:
"Whether the question is considered in a religious, moral, or social point of view, such marriages are unobjectionable, while in many instances they contribute to the happiness of the parties and to the welfare of motherless children, and among the poor, have a tendency to prevent immorality."
The Bishop of Down and Connor (Dr, Knox) said:—
"As it is admitted by the ripest scholars and meet accurate critics, that there is not the slightest prohibition in the Scriptures against the marriage with a deceased wife's sister, consider the legal restriction to be most unjust and injurious, producing the deepest social evils,"
The late Right Reverend Bishop Rotter, of Pennsylvania, said:—
"I am not one of those who hold that such marriages are forbidden by Scripture—and I am not aware that any special disadvantages, social or domestic, have resulted from them."
The Right Reverend Bishop McIlvaine, of Ohio, said:—
"Such marriages, I apprehend, are nearly as frequent as the the circumstances which usually give rise to them. I have not known any social disadvantages attending them,"
The Right Reverend Bishop Burgess Maine said:—"I know of no social disadvantages attending such marriages. The apprehensions expressed in England on this head, are entirely dissipated by our experience."
​The late Chief Justice Story of Massachusetts,, said:— "Nothing is more common in almost all the States of America than second marriages of this sort; and so far from being doubtful as to their moral tendency, they are among us deemed the very best sort of marriages. In my whole life I never heard the slightest objection against them founded on; moral or domestic considerations. Everything, that I have read upon this subject for the last 20 years, has satisfied me that the objection is utterly unscriptual and unfouuded."
The Reverend Dr. Eade, Professor of Biblical Literature to the United Presbyterian Church, Scotland in answer to the question of the Royal Commissioners, "Is the marriage of a widower with his late wife's sister within the prohibited degree?" said:—"'In all frankness and honesty I am obliged, to answer—No. It is interdicted neither by express veto, nor yet by implication. Canonical austerity is not to be identified with moral purity or matrimonial fidelity"
The Reverrend Dr. Chalmers says, in his Daily Scripture Readings:— 'In verse 18 (of Leviticus xiii,) the prohibition is only against marrying a wife's sister during the life of the first wife, which of itself implies a liberty to marry the sister after her death,"
The Reverend Dr. Cumming, of London, said:—"I can find nothing in Scripture prohibiting marriage with a deceased wife's sister. At the same time I feel that conformity to the Word of God is always, and in all circamstances, the highest-expediency."
Bishop Jeremy Taylor remarked:—" No man hath power to contract against Divine law; but if he have contracted against human law, his contract is established by a Divine law, which is greater than human."
We will conclude in the words of the late Reverend Dr, Alexander McCaul, Professor of Divinity and Hebrew Literature in King's College, London:—
"Having again carefully examined the question, and consulted some of the highest authorities in Hebrew literature as to the meaning of the Scripture passages, I am confirmed in the opinion formerly expressed, that marriage with a deceased wife's sister is not only not prohibited, either ​expressly or by implication, but that, according to Leviticus xvlii. 18 concerning the translation of which there is not the least uncertainty), such marriage is plainly allowed. I confess that when I entered upon this enquiry I had not an idea that the case of those who wish a change in the present marriage law was so strong. I had thought that the opinions of grave and learned students of the Bible were more equally divided, and that as authorities were pretty evenly balanced, they who had contracted such marriages must bear the inconveniences arising from doubtful interpretation. But I do not think so now, confirmed by the testimony of antiquity and the judgment of the most considerable interpreters at the Reformation, and since the Reformation, I now believe there is no reasonable room for doubt—that there is no verse in the Bible of which the interpretation is more sure than that of Leviticus xviii. 18; and I think it is a case of great hardship that they should, by the civil law, be punished as tradsgressors, whose marriage, according to Divine law, is permitted and valid; and harder still, that the children of such marriage, legitimate in the sight of the Inffallible Judge, should be visited with civil disabilities."