Page images

daughters of Zelophehad, were married unto their father's 'brothers' sons.' So in Judges it is stated (chap. i. 13), that Caleb gave Achsah his daughter to Othniel, the son of Kenaz his younger brother, to wife. The case of Ruth is also in point; Boaz felt hesitation in making her his wife, not for want of affection, nor because of the affinity between them, but for a contrary reason. • It is true that I am thy near kinsman; "howbeit there is a kinsman nearer than I ;' and in the next verse he promised her that if that kinsman refused to take upon him the nuptial obligation, he would himself marry her. Ånd in a later age, we find Tobit, who had married his kinswoman, thus instructing his son— My son, chiefly take a wife of the

seed of thy fathers, and take not a strange woman to wife, 'which is not of thy father's tribe ; for we are the children of

the prophets, Noe, Abraham, Isaac, and Jacob; remember, my ‘son, that our fathers from the beginning, even that they all

married wives of their own kindred, and were blessed in their children. Now, therefore, my son, love thy brethren, and despise not the sons and daughters of thy people, in not taking a wife of them.'-Tobit ix. 12, 13.

From these instances, and from the whole tenor of the Jewish history, it appears that near affinity was always regarded as a reason for marriage, and not an objection against it. And it is equally clear that marriages with strangers were strongly reprobated, and when contracted were visited with divine severity. We can only refer to Deut. vii. 2,3; Ezra x. 10–14; and Nehemiah xiii. from verse 23, passim.

The truth seems to be, that with one express addition, namely that of marrying the childless widow of a deceased brother, and certain provisions of indulgence on the subjects of divorce and polygamy, the Levitical code left the original law of marriage untouched; that in fact, with regard to degrees of relationship within which marriage would be unlawful, it contains no prohibitions. Yet as the abominations denounced and forbidden in the above chapter are greatly aggravated by their incestuous character, the Jews must have had some definite views on the subject of incest in reference to marriage; what these were we have no means of ascertaining. It is certain that several of the affinities expressly named by the Jewish lawgiver as enhancing the guilt of mere sexual intercourse, have never been regarded by the Jewish nation as forming any barrier to the union of the parties by marriage. Thus, while violating a brother's wife is severely censured, the Israelite is expressly commanded to marry her should she become a childless widow.*

* It is a practice among the Jews that no childless widow can marry a second time without offering and subjecting herself to the acceptance or refusal of her

We trust that the stand we have this taken will either bring down upon our statements contradiction and refutation, or that the Levitical degrees will be abandoned, or that the law of marriage as it regards propinquity of relationship, will be enforced on the ground of a reasonable humanity-alike unswayed by ascetic superstition and licentious infidelity. Till, however, these views of the Levitical law are equally entertained by the litigant parties as to the point where lawful marriages end and incestuous criminality begins, the controversy must be encumbered with all the old notions. But it is satisfactory to feel, that even with this admission, the state of the canon and statute law, as it now exists in England, has no sanction whatever from the Jewish code; and this will appear as we advance in our inquiries.

On the subject of the degrees of kindred and affinity, as it was understood during the time of Christ, the New Testament sheds very little light. The only case which is mentioned, and reprobated as a violation of the law of nature, is that which occurred in the Corinthian church-it does not appear to have been a case of marriage, but of aggravated impurity--which the apostle declares was not so much as named among the Gentiles.'-1 Cor. v. l. This determines nothing on the subject of the degrees of affinity within which it would be immoral for

deceased husband's brother. The command rendering marriage imperative in the instance of a brother's childless widow is purely conventional. Christians and heathens were always at liberty to disregard it. But as the command, though conventional, could not be a violation of the eternal principles of morality, it is a necessary inference that to marry the widow of a deceased brother under any circumstances is perfectly consistent with those principles, and on this point the Jews entertain no scruples. The reason for the command-in this particular relation as a principle—is much stronger when applied to one of similar degree of affinity. If a Jew was compelled to marry the widow of his brother in order to raise up seed to his brother, it ought certainly to be permitted to a Christian to marry the sister of his deceased wife. The reason, as Dr. Franklin observes,' being rather stronger in the one case than the other; if the one were enjoined that children might be produced, who should bear the name of a deceased brother, the other ought not to be forbidden, as it is more apparently necessary to take care of the education of a sister's children already existing than to procure the existence of children merely that they might keep up the pame of a brother.' In their present state of dispersion the Jews regard this law as oppressive, and utterly unadapted to their altered circumstances. In order to evade it they not unfrequently, before a marriage is contracted, exact from the brothers of the intended husband, in case of the survivorship of the wife without children, a written engagement to renounce their claim; and where this has been neglected, the friends of the widow have been known to purchase her release by paying to the exorbitant claimants a large sum of money. For in England the Jews are placed in this awkward dilemma,-if they obey Moses, they must violate the law of their adopted country,

either Jew or Christian to marry. To seduce and to prostitute, is in all cases a crime; even where marriages would not only be lawful, but most commendable; and the nearer the degrees of affinity existing between the parties—which might not be a barrier to their conjugal union, would be nevertheless a most heinous aggravation of their guilt should their intercourse be criminal. It is evident that the Jews felt no repugnance to the marriage of one woman with seven brethren in succession ; and when our Lord was interrogated as to whose wife she should be in the resurrection, he passed no censure either on the impiety or the immorality of the supposition (it may be reasonably doubted whether it was not a fact), but simply replies, that 'In 'heaven they neither marry, nor are given in marriage. A strange answer to such a question if, indeed, the fact or supposition implied in it had been founded in wickedness; if it implied either a Levitical or a natural offence. But the instance of Herod, and the intrepidity of John the Baptist, which cost him his head, have been relied upon as establishing the canon law of Christendom on the Judaical law of Moses, namely, that it is immoral or impious to marry a brother's widow. Herod lived adulterously with Herodias, his brother Philip's wifewhat has this to do with the question of marriage ? Philip was alive at the time.

Thus it appears that the original law of marriage has no reference whatever to degrees of kindred and affinity; that the most favored servants of God did not feel themselves under

any restraint with respect to marriage in any case of relationship by affinity; that the law of Moses does not interfere with the law of paradise, nor with the practices of the patriarchs and founders of the Jewish nation; that its prohibitions contained in the eighteenth and twentieth chapters of Leviticus have no reference to marriage, or if the contrary, for the sake of argument, be admitted, that their restrictions do not extend to a deceased brother's wife, on any nioral ground, nor to the sister of a deceased wife, nor to several other degrees of propinquity condemned by the canon law of Christendom; that we have no reason to suppose that marriage was prohibited in these cases in any later period of the Jewish history, and that Christ enjoined nothing on the subject of marriage affecting its validity on the ground of any relationship that might exist between the parties contracting it, but that he left it to his followers to adapt their marriage laws to the circumstances in which they might be placed. And well would it have been for mankind if those who in after times presumed to be rulers in his church, had observed the same discretion. There are two ways of weakening the bonds of moral obligation. By extreme tension, on the one

hand, and by undue laxity on the other. The law of marriage has suffered by both. Superstitious asceticism and infidel licentiousness have wrought to one and the same end. The former began by forbidding to marry, and the latter by declaring the conjugal relation dissolvable at the pleasure of the parties. Infidelity, however, has been far less mischievous in this respect than superstition, which was soon taken advantage of by priestcraft, and became the foundation of an enormous system of prohibitions, exactions, dispensations, and impositions, by which the Roman pontiff filled his coffers and augmented his power; while Christians were robbed of their dearest immunities, their social and domestic rights annulled, and every charity of the heart sacrificed on the altar of spiritual domination.

One of the pamphlets at the head of this article succinctly and satisfactorily accounts for the rapid progress of these enormous abuses.

• The purity of the early Christian converts, not satisfied with the rejection of the wanton allowances of Gentile customs, not contented with the voluntary adoption of the severest Levitical prohibitions, invented for themselves new rules of continence, which God had never imposed upon his chosen people, whom, in this as in every other virtue, they were ambitious of surpassing. * Thus before long, the fair face of Christianity began to be deformed by a dark stain of ascetism, altogether alien from the benevolent and social spirit of its divine Founder. Then it was, in process of time, that austere men began to talk

Of purity, and place, and innocence ;
Condemning as impure, what God declares
Pure, and commands to some : leaves free to all.'— Millon.

And thus, the venerable rite of marriage, which in our admirable liturgy is described as “instituted of God in the time of man's innocency, signifying unto us the mystical union that is betwixt Christ and his church;' that holy law by which

• Relations dear, and all the charities
Of father, son, and brother, first were known.'

began to lose the mysterious reverence' with which it was regarded

* Recte tamen fecerunt Christiani veteres, qui leges non illas tantum in commune datas, sed alias peculiariter Hebræo populo scriptas, sponte sua observarunt : imo et ad gradus quosdam ulteriores protenderunt verecundiæ suæ fines, ut hâc quoque in virtute non minus quam in cæteris,-Hebræos antecederunt.'-Grotius de Jure Belli, &c. I. II., c. 5, s. 14, 3.

by the earliest followers of that Saviour' who had adorned and beauti. fied it by his presence,' and 'to lie in disgrace with most of the ancient doctors, as a work of the flesh, almost a defilement, wholly denied to priests, and the second time dissuaded to all ; as he that reads Tertullian and Jerome may see at large.'— Milton. Thus under a state of feeling, in which the natural emotions were branded as a crime, and marriage only tolerated as a necessary evil, it is not surprising that celibacy should soon have been regarded as the nearest approach to the divine perfection ; that the monastic principles and institutions should have been established, with all their monstrous train of evils ; and that degrees of marriages, already prohibited, should have been gradually extended beyond the limits which are prescribed by God, or which the necessities of domestic intercourse could possibly require.* Thus, by the laws of Theodosius, at the end of the fourth century, the marriage of cousins-german was expressly prohibited. It is said by Jeremy Taylor, that at the time of many of these early prohibitions, the Goths prevailed by the sword; and the church, to comply with the conquerors, was forced to receive this law from them, for the Goths had it before the Romans, and it is very possible that this barbarous people were the great precedents and introducers of the prohibition. Then, as the ecclesiastical authority grew and increased, as the spirit of extortion and venality in the Roman church became more powerful, these prohibitions were found to be good drains for money, and levies for rents ;' they were extended and supported by the most sophistical quibbles of papal ingenuity, and soon led to the most immoral and irreligious consequences. Thus, it is observed by Mr. Hallam, t that the principles of the church, in the middle ages, led indirectly to the prevailing license of repudiation and even polygamy; of which there is evidence,' says he, in many capitulations of Charlemagne.' adds, Marriages were prohibited, not merely within the limits which nature, or those inveterate institutions which are called nature, have rendered sacred, but as far as the seventh degree of collateral consanguinity, computed from a common ancestor. Not only was affinity or relationship by marriage put upon the same footing as that by blood, but a fantastical connexion, called spiritual affinity, was invented, in order to prohibit marriage between a sponsor and god-child.' These were extended to the ninth degree of spiritual relationship, and arose as well out of the celebration of the sacrament of confirmation as that of baptism ; and Lord Coke ţ mentions, that before the statute of Henry VIII. there might be divorces because the husband had been godfather at baptism or confirmation to his wife's cousin.

'Le mariage n'étoit point defendu par les Loix Romaines, entre les personnes qui ne se touchoient d'affinité que dans la ligne collatérale, jusque à la Loi de l'Empereur Constance, qui defendit, comme incestueux le mariage avec la veuve de son frère, ou avec la sæur de sa defunte femme. Cette loi fut renouvellée par Valentinien et Theodose. Honorius contrevint à la loi de son père, en epousant successivement les deux filles de Stilicon.'—Potier, v. iii. p, 201. Traité du Contrat de Mariage. + Hallam's Middle Ages, v. ii. c. 7. p. 293.

# 2 Inst. 684. VOL. IX.


« PreviousContinue »