# Unlawful Marriage/Chapter 2

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.'"
And to all the evidence in regard to the judgment of this learned man, on the question already presented, may be added this: That in his comment on Levit. 18:18, (where, if anywhere, had he believed it lawful for a man to marry his deceased wife's sister, he would have asserted the lawfulness of such a marriage,) he is silent on the point. He there gives ​it as his opinion that the prohibition refers to marriage, and not to polygamy.
Calvin refuses to be in the list with those who he believes misinterpret God's law. Hear his strong and decided language, as cited by Dr. Livingston, in his Dissertation, page 155: "It is sufficiently known in what degrees of consanguinity, God, in his law, forbids marriage. What relates to the degrees of affinity is equally obvious. There are some who dispute, or rather cavil, whether it is not lawful for a man to take the sister of his deceased wife; and they seize, as a pretext, upon the words, Levit. 18:18., during her lifetime. But their error is refuted by the very words of that text; because, what is there condemned by Moses, is not for incest, but for cruelty to the wife. That text actually respects Polygamy."
Calvin is claimed by the Puritan, not only without proof, but against positive proof.
Selden is not found in the list on page 23; but, from various passages, it is evident the Puritan intends to claim alliance with this learned man, "who, as an oriental scholar," he says, "saw no superior." Hereafter we shall ​notice quotations from Selden, but for the present we only remark, that, in page 20, first par. he represents him as expressing his own sentiments, when, in fact, he only recites, as a historian, the sentiments of the Jews, collected from Maimonides, &c.
Nothing produced by the Puritan is sufficient to authorize him to class Selden with those who vindicate the lawfulness of the marriage in question; nor have we seen any thing in his writings to justify it. One thing is plain, Selden, and the Talmudists, and the Karaites, and the Hebrews are all in direct opposition to the Puritan's doctrine, "that these statutes in Lev. xviii. do not prohibit marriage at all." (P. 6, last par. of the chap.)
Selden was a lay-member of the Westminster Assembly, who formed the Confession of Faith that contains the article on the subject of marriage so much opposed at present. Had he believed it to be unscriptural, he would have opposed its adoption; but from the history of the labors of that venerable body, it does not appear that he made any opposition. To an article of the Church government, he did oppose himself. He ​was an Erastian: he believed and maintained that the Jewish Church had no government distinct from that of the State; and that, in a Christian country, the Church ought not to have a government distinct from that of the State. In support of his views he brought forth all the rich stores of his "Rabbinical lore." He was supported by the celebrated Lightfoot and other Erastians, and by all the Independents in the Assembly. But all in vain. He was met in debate by Gillespie, that noble young Scotch Commissioner, who, by "a speech of astonishing power and acuteness," overturned the foundation of his superstructure. "Selden himself is reported to have said, at its conclusion, 'That young man, by this single speech, has swept away the labors of ten years of my life.'"
In regard to the Confession of Faith, "there prevailed," says this historian, "almost an entire and perfect harmony." Only two subjects excited difference of opinion among them: the doctrine of Election and Church government.
​Chief Justice Vaughan, who lived in the reign of Charles II, is claimed as favoring the marriage under discussion. His influence, whatever it may be worth, (though even he regarded this law as referring to marriage,) is yielded. It may be proper, however, to let the reader see the grounds of his opinion. The case before him was the marriage of a man with his great-aunt. In deciding that case he gave his opinion incidentally of the lawfulness of the marriage of a man with his deceased wife's sister.
The grounds of his opinion are:
1. An assumption, without proof, that part of the law in Levit. xviii. is judaical positive law, and therefore not binding on Christians.
2. He affirms that such marriages were allowed by the Jewish "Forum" to be lawful.
3. He says, "The clearest way to understand any law is by what was the story and judgment of those people, and the times in which it was practical."
Here the Chief Justice overlooks the fact that the law, to which he refers, has been a practical law in every age of the Church since its enactment, and suffers himself to be guided by the ​judgment of the Jewish people, in one of their most corrupt periods, at the distance of 1500 years from the first publication of the law by Moses.
4. He represents the judgment of the Scribes and Pharisees as being incomparably superior to that of the Karaites, and assigns as a proof, (referring to what our Saviour says of them,) "They had Moses' authority," Matt. 23:2—as if our blessed Lord intended, by his remark, that his disciples should place implicit reliance on the interpretation of the law by those teachers whom, in this very chapter, he upbraids as "blind leaders of the blind!"
5. Speaking of Acts 15:28, 29, 1 Cor. 10:27–32, he says, "These were not given as precepts, but as counsels." "Rom. 2:14," he says, "does clearly affirm that the law of Moses was not given to the Gentiles." Surprising! The apostle is speaking of the moral law, that law which was written on the hearts of the Gentiles; and the Chief Justice asserts, the apostle here teaches us that it was not given to the Gentiles! It had not been revealed to them as it had been revealed to the Jews; but, beyond ​doubt, it had been given to them, for it was written on their hearts.
"And Rom. 3:2 shows," says the Judge, "that this law, called the Oracle of God, was committed to the Jews only." What an interpretation of Scripture! The oracles of God is the law!!
If the opinion delivered by the Chief Justice, from which these extracts have been taken, displays learning and legal acumen, the extracts speak little in favor of his acquaintance with the Scriptures and ability to interpret them.
Grotius, we have seen, maintained the law in Levit. 18:6–18, to be, in all its parts, binding, by an express order of the Divine Will, not only on the Jews, but on all mankind; and had Chief Justice Vaughan followed him whom he styles, in his discussion, "the greatest of human authorities," he would have arrived at a very different opinion on this important subject.
With this opinion, delivered in the 22d year of Charles II, the reader may compare a recent opinion, delivered Feb. 1804, by Sir William ​Scott, afterwards Lord Stowell; speaking of whom, Chancellor Kent says: "An incestuous connexion between an uncle and niece has been recently adjudged, by a great master of public and municipal law, to be a nuisance extremely offensive to the laws and manners of society, and tending to endless confusion, and the pollution of the sanctity of private life."
Jeremy Taylor is placed in the Puritan's list, as pleading for the lawfulness of the marriage before us. We have already shown (p. 28) how our brother has misquoted this writer, and this led us to suspect he might be mistaken in classing him as he does. As the place is not cited, we were subjected to the trouble of several hours' search in his work to find the authority. The result of our labor is this: J. Taylor enumerates the following to be unlawful marriages:—
1. Between parents and children. They are unnatural. 2. Between brothers and sisters. They are incestuous, prohibited by positive law. "This discourse," he says, "is not intended so much as secretly to imply, that it can now at all ​be, or be made lawful, or is at any hand to be endured: for the marriage of brother and sister is against a secondary law of nature; that is, it stands next to the natural prohibition, and is against a natural reason, though not against a prime natural law." 3. Between a man and his father's wife. He regards it as unnatural. 4. Between uncles and nieces. Unlawful by positive precept. 5. He contends that the marriage of cousin-germans is lawful.
We could not find the place in which he pleads in favor of the marriage of a man with his deceased wife's sister.
"Affinity," he says, "makes conjunctions equal to these of consanguinity; and, therefore, thou must not uncover the nakedness which is thine in another person of blood or affinity, or else is thy father's or mother's, thy brother's or thy sister's, thy son's or thy daughter's nakedness. This is all that can be pretended to be forbidden by virtue of these words, near of kin or the nearness of thy flesh."
Hooker and Doddridge are set down as ​pleading in favor of this marriage; but as no reference is given of the places where they have expressed their opinion, we have been unable to find them.
Of Luther and Melancthon we have already spoken. (P. 32.)
Chancellor Kent certainly has not "pleaded for the lawfulness of such marriages." In his Commentaries, after naming N. Webster on the one side and Dr. Livingston on the other, he says, "It is not my object to meddle with that question; but such a marriage is clearly not incestuous or invalid by our municipal law."
Dr. J. P. Wilson has published no opinion on the subject. We knew him for many years, and never heard him utter his sentiments, nor did we ever hear that he had till we read the Puritan.
Judge Story, in his Conflict of Laws, says, Grotius "maintains, in strong terms, that there is no foundation for the prohibition;" and then quotes from the original Latin the following words as proof: "And by the most ancient canons, which are called Apostolical, he who married two sisters one after the other, or his ​niece, that is, his brother's or sister's daughter, was only incapacitated for the ministerial office."
Now, let the reader look at this insulated quotation, and find, if he can, that Grotius even thought such marriages to be lawful. If they were lawful, why should any contracting them be rendered incapable of holding the ministerial office, and be punished for doing no wrong?
But, when it is considered that, in the very section from which the quotation is taken by Judge Story, and immediately preceding it, Grotius states the marriages of parents and children, and of brothers and sisters, to be so in violation of the law of nature as to be "null and void," "but that the case is not the same as to laws concerning other degrees, since they are rather made to prevent certain inconveniences than to direct men from a thing that is in itself dishonest;" and further, that he had, in his preceding section, (see above p. 36,) asserted that the prohibitions in Levit xviii., in all the degrees of affinity as well as of consanguinity, in the ​collateral line, are sanctioned "by an express order of the Divine Will"—an order obliging not only the Jews, "but all mankind"—is it not apparent that the learned Judge has really "no foundation" for his assertion?
Now, in opposition to the Puritan's list of distinguished men "who have plead for the lawfulness of such marriages," (p. 23,) we place all the Reformers, the celebrated Divines of the Lutheran Church, the Synod of Dort, the National Synod of France, the Westminster Assembly, the Church of Scotland, the Church of England, &c. &c.
7. But all will not avail us. The unlawfulness of the marriage of a man with his deceased wife's sister, has a Popish origin, and the Protestant Church has not been able to free herself from the error to this day. (See the Puritan, p. 22, second paragraph and p. 23, first par.) Grotius states that Primitive Christians regarded the Levitical degrees as binding on the Church, (see above, p. 36, 37,) and the Puritan ​admits the marriage in question had been condemned by "the Council of Neo-Cæsarea, A. D. 314, and that of Elvira, A. D. 305." But all this he sets aside by a sweeping remark: "Though it is true that Popery in form was not established so early, many of the corruptions of Popery came into being long before that." He then goes on and describes the corrupt state of the Church in future times, and thinks he has made out the impure origin of the prohibition.
His argument is—The Church of Rome, in subsequent periods, gave rise to unscriptural rules relating to marriage; therefore this prohibition was unscriptural, and derived its existence from Papal influence.
Let the Unitarian seize this weapon, and how would he use it in trying to demolish the glorious fabric of our common Christianity! Your doctrines of the Trinity, of the Godhead of Jesus Christ, of his vicarious atonement, of the personality and divinity of the Holy Spirit, are to be found, not in the Bible, but in Papal devices.
"But," says our brother, "the last fifty years have developed a great advance of the public ​mind towards the truth." (P. 23.) And what was the state of the public mind fifty years ago? In the middle of the last century Voltaire and his impious associates formed their conspiracy against Christianity, and labored diligently, in their unholy vocation, to overturn the Church of Christ, and to bless the world with the reign of infidelity and Atheism. Their efforts were crowned with most alarming success. Frederick the Great of Prussia patronized Voltaire. Princes and crowned heads were poisoned with infidelity. The French Revolution burst forth like a terrible and destructive volcano. Infidelity became ascendant. Religion was laughed to scorn. The Sabbath was abolished. The goddess of reason was enthroned and worshipped. The baneful influence of infidelity and atheism was spread more or less over a large part of Europe. Nor did this country escape the miserable contagion. Such was the depressed state of religion and the prevalence of infidelity about fifty years ago, that a venerable Theological Professor advised his pupils (the writer heard him) to prepare their minds for a season of persecution.
​Such was the actual state of Europe and of this country at the time when, the Puritan says, "a great advance of the public mind towards the truth was developed." Was it truth or was it error, towards which the advance was made? Certainly the state of things was not favorable to religious truth. While the public mind was thus shrouded with darkness, and the public eye shut against the light of divine revelation, the minds of men were not prepared for discerning religious duty, and enacting laws for protecting the sanctity of marriage, and securing domestic purity. The removal of restraints on sensual passions by human legislators, in such circumstances, a wise man would naturally look upon with a suspicious eye. Indeed, what the Puritan regards as a great advance of the public mind towards the truth, we regard as a retrograde movement towards error. And judging merely from the actual state of things when it commenced, we think there is better ground for our opinion, than the actual state of things in the early period of Christianity furnished our brother for his opinion about the Popish origin of the prohibition against which he contends.
​Let it be also observed, that in this "advance towards the truth" the State has taken the lead. In former acres the Church went before the State. She received the law of her God on the subject of marriage; and from her example, and the light of Christianity which she diffused abroad, the laws of the Roman Empire derived such a salutary improvement in regard to this fundamental institution in human society. But now the Puritan would have the State to reform the Church. "In this country," he says, (p. 23,) "all the States but one allow of the marriage of a wife's sister. In the Protestant States of Europe, the case is similar. Throughout the whole of Prussia, Saxony, Hanover, Baden, Mecklenberg, Hamburg, Denmark, and most other Protestant States, such marriages may be contracted." Here is a numerical display.
It would require much labor to test fully the correctness of this statement. As it is unnecessary, we only remark, that, with the exception of Prussia and Denmark, the European States enumerated are small; that beyond this number we are unable to count more than four or five other Protestant States in Europe; and that ​England, and Scotland, and Holland do not allow these marriages: yet the Puritan swells his enumeration by the additional clause, "most other Protestant States of Europe!" Judge Story has, in his Conflict of Laws, the same enumeration, and the same additional clause. Probably our brother, copying from the Judge, was led into the mistake by his guide.
But whatever change has taken place in the laws of States in regard to marriage, no change is stated by the Puritan to have occurred in the laws of the Churches. If any have been made by the Churches of Germany we are not informed; and, when it is considered how those once flourishing Protestant Churches have been swept over by the blighting influence of infidelity; and how the pulpits, from which formerly was heard the pure and holy gospel of Jesus Christ, are now occupied by Errorists and Neologists, who mislead and deceive the people; who would be surprised to hear that a change in the practice of the Churches has occurred, as unscriptural and deleterious as what has occurred in the life-giving doctrines of divine revelation?
* ↑ De Jure Belli ac Pacis, lib. ii. chap. 5. sect. 13. J. Barbeyrae's Trans.
* ↑ Hetherington's History of the West. Assem., pp. 173, 174.
* ↑ P. 242.
* ↑ See 2 Vent. pp. 16–22.
* ↑ Kent, 2 Com. p. 82.
* ↑ Ductor Dubitantium, pp. 225–231.
* ↑ Vol. ii. p. 85, note a.
* ↑ Note p. 105, 2d edition.
* ↑ De Jure Belli et Pacis, lib. ii. chap. 5, § 13, 14. J. Barbeyrac's trans.
* ↑ Page 105, note, 2d edition.