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9

we here, then, to justify Dr Eadie's appeal to the clear Jewish interpretation of the statute, as proving that a man, in any circumstances, might lawfully marry the sister of his deceased wife? Nothing of the smallest weight. And the whole is the opinion of some alleged volume found at Jerusalem some time, on a very different point, namely, in what circumstances the child of the levirite was or was not spurious. The opinion of this nameless genealogist is contrary to the generally, if not universally received opinion, that a man who had repudiated his wife was not thereby at liberty to marry her kindred as if he had never married her, even after the repudiated wife was dead. The Rabbis Ob De Bartenora and Maimonides, commenting on this passage, carefully state that the levirite is precluded from any one justly within the negative precept "Non veniet," &c., and that the child of every such one is spurious. Although they add that the child of a menstruous woman, with whom it was unlawful to have intercourse, was not spurious; which shows, though the son might not be spurious that it does not follow that the connection was lawful. And, farther still, Maimonides, a somewhat illustrious "Child of the Covenant," lays down, at the outset of the treatise, certain fundamental principles to rule the understanding of it, the second of which is the following::- "The second fundamental point is, if the brother of any one hath died and left a wife, the wife is unlawful to the brother or to one of the brethren, who are bound to undertake the levirate, or to give the shoe to be plucked off; for example, if the wife of the dead husband were the daughter of the living brother, or the sister of his wife, this brother to whom this woman is prohibited on account of the incest, he shall not enter into the levirate with her, because it is written, Lev. xviii. 18, npn 85 nnins ba n, and Deut. xxv. 1 says, by, as if he had said, what I have told thee, her levir (brother-in law) shall come to her, it ought to be understood when she has been the sister of thy wife, thou shalt not take her to afflict her with sorrow, and thus we shall teach many incests of the sister of a wife.” * That is to say, the first connection was unlawful incest, and the repetition of it would be the repetition of many incests. Bartenora teaches the same doctrine in his commentary, as to the levir of the woman, who was herself stuprata, according to Leviticus xviii. 17. That is, if the marriage of the levir with the sister of the deceased wife were allowed in these cases, there might be an endless succession of incests; clearly holding the general principle that marriage with the sister of a deceased wife is incest; and that this general principle was fundamental to the right interpretation of the law of the levirite, and one incest cannot hallow, nor ever form the foundation for hallowing, what could only be another. The reader will now judge how far the reference, Yebamoth iv. 13, is so clear proof of uniform interpretation of the statute in favour of Dr Eadie's view. In fact, so stringent, according to the Mishnah (Yebamoth, cap. iv. 7), was the law on this point, that it says that the man who gave the shoe to be plucked off, that is to say, refused to perform the duty of the levirate, nevertheless, by the presentation of the shoe to be plucked off, contracted propinquity, and was thereby, even in this case, prohibited from certain relations of the woman to whom he had given the shoe to be plucked off, and among these is her sister. The

"Sive Legum Mischnicarum Liber qui inscribitur DE RE UXORIA cum clarissimorum Rabbinorum Maimonides et Bartenoræ, Commentariis Integris, &c. Latinitate donavit ac notis illustravit, Gul. Surenhusius. Pars Tertia Amstelodami,

1700."

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OPINIONS OF THE JEWS-MAIMONIDES.

brother who had no connection by marriage, or by actually performing the duty of the levirate, but merely being asked to do so and refused, thereby contracted such propinquity that he was prohibited from marrying her sister while in life; that is, not the husband of the woman prohibited to marry the sister of his deceased wife, but his brother prohibited to marry her sister while she was alive, if she, his brother's widow, had called upon to him to act the part of the brother and he refused. Maimonides on this says, "The matter stands as if she were his wife and he had

repudiated her."

There is another passage which, like the preceding, is referred to by Gill on Lev. xviii. 16-18, viz., as seeming to favour the opinion that certain Rabbins held such marriages lawful, viz., Maimonides, Hilcoth Issuri, Biah., c. ii. v. 9. For the sake of connection we give verses 7, 8, 9, of which the following is a translation :——

“7. When a man takes a wife, six of her relations are forbidden to him, each of which is an uncleanness (y) to him always, whether living together or divorced, during his wife's lifetime or after her death. They are the following:-(1) Her mother; (2) her mother's mother; (3) her father's mother; (4) her daughter; (5) her daughter's daughter; and (6) her son's daughter. If he come to any of these whilst his wife is still alive, they should both be burned.

"8. But when he came to them after the death of his wife they should be cut off (7) [meaning either that they should die some other way, or be excommunicated]; as it is written, they should burn in the fire him and them, which is only when they are both living, viz., his wife, and she to whom he came in, then only should both himself and they be burned, but when they are not both alive, then there is no case of burning.

"9. Even so his wife's sister is an my to him until his wife dies, whether she be her sister from her father or her sister from her mother, whether be lawful marriage or by fornication, she is an my to him."

The above has been furnished for me by Mr Wolf, himself a Christian Jew, with the original words. Maimonides lies before me.

There is no greater source of error than arises from taking detached sentences or portions of passages of any writer, without examining the scope or design of the writer in the context. We have already seen the effect of this in some preceding instances. It is not less apparent in the reference now under consideration. From taking the words of ver. 9, now quoted, it has been concluded that this is a declaration by Maimonides of the lawfulness, according to the Jews, of marriage with the sister of a deceased wife. Now, were this the case, it would make his opinion of little value, seeing we have already had it expressed to the opposite effect, both in his "More Nevochim," and in the second fundamental principle laid down to regulate the interpretation of the treatise in the Mishnah concerning the duties of the levirite. But, on looking to the passage before us in its context, we see that there is no inconsistency in the opinions of Maimonides. In ver. 7 he shows in what cases the punishment of burning followed connection with certain relations of a man's wife; but in ver. 8 it is added, that the same connection after the death of the wife did not involve death by burning, but the punishment of cutting of, whatever that meant. Still there was a punishment, and the connection was, therefore, unlawful. In ver. 9 it is added, "Even so, his wife's sister is an л to him,” an uncleanness, meriting death by burning;

KARAITES AND TALMUDISTS-SELDEN.

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but, as in the previous cases, the punishment was not burning after the death of his wife, so in this also; that is to say, it was placed in the same category of guilt and punishment as the preceding relations mentioned in ver. 7. The wife's sister is an ny to him."

Hitherto, therefore, I have not seen any passage from the Talmudists simply declaring that they held marriage with the sister of a deceased wife lawful, as a general proposition.

In so far as the opinions of the Jews are made available in this controversy for what they are worth, they are to be found embodied in those of the Karaites and Talmudists. They are fully expounded in the learned Selden's works, and especially in his "Uxor Ebraica," lib. i. Both sects held the general principle, that certain marriages were forbidden, as well by affinity as by consanguinity. The Talmudists professed to find eighteen forbidden in express words, or by undoubted consequence, from the sacred law, partly in the name of consanguinity, and partly in the name of affinity or propinquity. Selden (lib. i. cap. i.) says:" As to what belongs to the first species of forbidden marriages, or those which are forbidden in name of consanguinity or affinity, the decisions of the Talmudists and Karaites. differ. With the Talmudists, according to the express words of the Mosaic law, and that which so follows from them by necessary consequence that it must in all reason be admitted (ut non admitti nulla cum ratione queat), there are held for forbidden, partly in name of blood, partly in name of affinity, only eighteen (in which also mother, step-mother, sister, are equally forbidden to them by natural law, or by the patriarchal law), as in the following scheme." They were so forbidden," he adds, after giving the scheme, in which the sister of a wife is included, "that only fifteen are forbidden in the express words of the sacred law, and three remaining ones, they say, by necessary consequence. Those fifteen are exhibited in the scheme in capital letters," and the sister of the wife, SOROR UXORIS, is one of them. They quote the following passages in proofLev. xviii., from verse 6 to 18, and xx., verses 14, 17, 19, 20, 21; Deut. xxii. 30, xxvii. 20, 22, 23. Any one who will consult these passages, especially Lev. xx. 21, and remember that they held prohibitions in affinity equally with those in consanguinity, can have no doubt of their views. In addition to these, there was what they called secondary women, whom it was forbidden to marry by the decrees of the Scribes and the institutions of their ancestors. Of these there were twenty, some forbidden under the head of blood, and some of affinity.

The differences between the Talmudists and Karaites it were more difficult and tedious than profitable to determine; but on the point of the marriage of a man with the sister of his deceased wife, they seem not to have greatly differed. Certain it is, there were Talmudists who held the same view as the Karaites. An attempt has been made to throw contempt on the Karaites as a small despised sect, for what reason we know not, except that the advocates for license on the marriages in question think they are more express than the Talmudists against them, though this does not very clearly appear. They professed to decide, in contradistinction to the Talmudists, solely and simply "according to the literal and simple sense, neither adding nor diminishing." Hence they were called Scripturists. They carried the number so forbidden greatly beyond what the Talmudists admitted. The Talmudists slandered them as Sadducees, just as their antitypes of Popery slander the Protestants as infidels, and accuse their

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victims, the poor Waldenses, of being Manicheans.* It was chiefly on this general question that the disputes between these two sects and their subsects existed. The more ancient sects of the Karaites and their followers held that the relations of the wife were equally forbidden to the husband as his own, on the ground that the unity of person was such between man and wife that they were called insiti, or engrafted, and that even when divorce took place, that unity of person and relationship still subsisted to the third instance of marriage, and regulated all the relationships accordingly, and only ceased with the fourth. The more recent Karaites rejected this latter notion as extravagant. Nevertheless the first of the sect who rejected this notion, taught that the whole prohibition of incest, according to the sacred law, in its fundamental principles and rules, consisted in five classes; in the third of which is that of a man marrying the sister of his wife ;- so that," adds Selden (plainly intending to say, notwithstanding the strictness of their rule of interpretation) "the Karaites do not doubt but that the sister of a wife, whether dead or remaining, is to be held as in the forbidden degrees.' He adds, "which the Talmudists do not admit." That is,—if we do not altogether misapprehend Selden's meaning in the passage already quoted, they did not admit that they were forbidden in express words, while nevertheless the Talmudists did not deny that such marriages were forbidden, but maintained that they were forbidden by necessary consequence. I can discover no other way of reconciling the apparently contradictory statements of Selden on the point. Any one reading his whole discussion, and not catching at an isolated sentence, will see there is no contradiction. He refers in the margin to,his work, "De Jure Naturali et Gentium Juxta Disciplinam Ebræorum," lib. v. cap. 10. On referring to that work, it will be seen that the same question is discussed, viz., whether these degrees held by them as forbidden, among which the sister of a wife was one, could be determined by the law of nature and nations, according to the discipline of the Hebrews, and whether affinity was constituted by adultery and fornication. They held that they were, and that, though the wife were divorced, it was prohibited to marry the full or the half-sister: "for they never doubted (viz., as to the point of adultery or fornication in the case of a wife divorced constituting this prohibition by affinity) concerning the sister of the deceased wife, because the words of the law concerning the WIFE are, while she is alive," and therefore divorce does not alter the matter. This is the point raised where the preceding words are used. If any one will adduce plain passages from the Talmudists to the contrary, we shall be content to plead ignorance as our apology; but, meantime, this has not been done by any of the writers on the opposite side; and though it were done, it might prove what the opinions of the Talmudists were, but would no more than other vain traditions alter the sense of Scripture.

Since writing the above, I have seen the observations of Dr Janeway, of America, on the point as stated by Selden. He is justly dissatisfied with the "Puritan," another American writer, who supposed he had full proof in the words of Selden already quoted-viz., "Quod Talmudici non admittunt" for saying, in opposition to the Karaites, "the Talmudists teach otherwise." Dr Janeway does not seem fully to have apprehended See Selden's " Uxor Ebraica," lib. i. cap. iii.

Boehmer says of Selden, that he obscured everything by the multitude of his parentheses.

PHILO JUDÆUS-JONATHAN BEN UZZIEL.

13

Selden's meaning in the passages we have referred to; but, in referring to it, he tries to find some authority for Selden for what in reality he does not state, and he incidentally quotes a passage from Philo Judæus, who flourished about the commencement of the Christian era, and which has an important bearing on the historical question before us. It is as follows:" 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 remains a widow or be married to another man, (Moses) accounted it UNHOLY for her 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 him; for from these things arise violent jealousies and fierce contentions, producing an unspeakable multitude of evils." * Dr Janeway argues justly that Philo does not hint at the lawfulness in this passage of marrying the sister of a deceased wife. He evidently held this connection in some circumstances unholy," and a violation in some form or other of the right of consanguinity.

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1 may notice here that in another part of his work, and for a different purpose, Dr Janeway quotes from the Targum of Jonathan Ben Uzziel, a passage, of which the following is a translation, on Lev. xviii. 16:— Turpitudinem uxoris fratris tui non revelabis vivente fratre tuo, aut post mortem ejus si habeat filios: nuditas fratris tui est."-"The shame of thy brother's wife thou shalt not reveal during his life, or after his death if he have children: it is the nakedness of thy brother." It is clear from this passage that he held it unlawful, on account of the incestuous sin involved, to marry his brother's widow if she had had children to the deceased brother; because, if it had been for the reason pled in modern times for such marriages, a widow and her children had as much need of a brother's protection by marriage, as a widower and his children of a sister's -clearly showing also that the leviral law was limited to the peculiarity of raising up seed to his brother.

In one of the thin leaves issued by the Libertarians, there is the following opinion: "Though a man might not marry two sisters together, it seems a natural conclusion from the phrase in her lifetime' that he might marry the sister of his deceased wife; and thus, we learn from Selden, the Jews in general understood it!-Dr DODD." Where Selden gives this information, Dr Dodd has not stated; if he meant in the passages already considered, his allegation is, at the least, doubtful. Another opinion, quoted by the same parties, is not much more to the purpose. It is as follows:Certainly, after the death of the wife, it was permitted to the husband to marry her sister, because she (the sister) is not among the other enumerated kindred of the wife.-RABBI LEVI." If this be only Rabbi Levi's opinion, it is simply that of a Talmudist against a Karaite, who held that Lev. xviii. 16 was express to the prohibition. If it be given as a historical fact, it is a bare assertion, and of no earthly value as proof.

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Not more satisfactory is the vaunted evidence of Dr Adler, which is as follows:- "It is not only not considered (by whom-modern Jews?) as prohibited, but it is distinctly understood to be permitted; and on this * "De Specialibus Legibus," p. 602. Geneva, 1613.