No. LV.
MOURNING FOR THE DEAD.
Modern Judaism, or the religion of the Jews, as it is professed by the majority of the nation scattered through the world, confessedly consists of two parts. The first is composed of those laws which are מן התורה, i.e., which are either really found in the written law, or are supposed to be based upon some passage of it. The second, of those laws which are מדברי הסופרים “of the words of the scribes,” and which are, therefore, mere human institutions. Concerning those that were given by God, we readily grant that they can be changed or abrogated only by God himself. But respecting the latter, both reason and Scripture concur in assuring us, that what human authority has ordained, a similar human authority may also abrogate. We grant that so long as the Jewish polity remained, and the scribes were magistrates, their ordinances, so far as they were not contrary to the Word of God, were binding upon the Jews: but even then those ordinances were not immutable. They might have been repealed by the scribes and magistrates who succeeded them. And even then, whenever they stood in opposition to the Word of God, it was the bounden duty of the Jews to refuse obedience. For what reason, then do the Jews of the present day still pay the same homage to the words of the scribes that they do to the Word of God? The scribes are not now the civil magistrates of the countries where the Jews reside; their words, therefore, carry with them no authority whatever. The Jews are now in different circumstances—are subject to other magistrates and lawgivers. The magisterial sanction, which the words of the scribes had before the dispersion, has long since been lost; but God nowhere commands the Jews in England to obey laws made by the civil magistrates of Palestine two thousand years ago. There is not a shadow of obligation remaining; and therefore the Jews of the present day have a full right to examine into their tendency and effects, and if they should be found injurious or unsuitable to present circumstances, to reject them. If the words of the scribes be not obligatory by virtue of Divine authority, the only imaginable reason for observing them is the supposition that they are conducive to the welfare and happiness of Israel, but if it can be shown that this supposition is false, then both reason and religion would suggest the wisdom of rejecting them. We have already shown of several such laws that they are alike noxious to man and dishonouring to God, and think now to exhibit a similar result with regard to the laws concerning mourners for the dead. Of many of these it is confessed that they are not of God, but simply ordinances of the scribes: thus, of the command to mourn seven days, it is acknowledged, that it is not to be found in the law:—
ואין אבלות מן התורה אלא ביום ראשון בלבד שהוא יום המיתה ויום הקבורה אבל שאר השבעה ימים אינו דין תורה ׃
“The only mourning commanded in the law is that on the first day, which is the day of the death and of the burial. But that of the rest of the seven days is not an ordinance of the law.” (Hilchoth Avel., c. i. 1.) And thus with regard to the various things from which the mourner is to abstain during those seven days, it is acknowledged expressly that the command is altogether an ordinance of the scribes:—
אלו הדברים שהאבל אסור בהן ביום הראשון מן התורה ובשאר ימים מדבריהם אסור לספר ולכבס ולרחוץ ולסוך ולשמש מטתו ולנעול את הסנדל ולעשות מלאכה ולקרות בדברי תורה ולזקוף את המטה ולפרוע את ראשו ולשאול שלום הכל ׃
“These are the things which the mourner is prohibited from doing, according to the law, on the first day, but according to the words of the scribes on the remaining days—shaving, washing the clothes, bathing, anointing, duty of marriage, putting on shoes, working, reading in the words of the law, elevating the chair, uncovering the head, asking after the peace of any one.” (Ibid., c. v.) As therefore the rabbies themselves do not pretend that abstinence from these things during those days of mourning is required in the law; and it is further a matter of fact, that this abstinence is not inculcated by the laws of the land, it naturally becomes a question, Why then do the Jews now observe these rites? Are they conducive to the happiness and welfare of Israel? We might doubt respecting several of them, but one is so obviously oppressive to the poor as to be almost beyond controversy; we mean the prohibition to work during the seven days’ mourning. We do not mean to deny, that when death enters a family, it is a providential call to humiliation and serious reflection, and that therefore those who can should withdraw for a while from their every-day occupation, and seek by prayer and penitence to have the affliction turned into a blessing. But to require of those who have not food for themselves or their families to embitter their cup of sorrow by adding the pangs of hunger, is to act the part of an inconsiderate and merciless tyrant, and this is what the oral law does. It says—
כל שלשה ימים הראשונים אסור בעשיית מלאכה , אפילו היה עני המתפרנס מן הצדקה , מכאן ואילך אם היה עני עושה בצנעה בתוך ביתו ׃
“All the first three days it is unlawful to work, even though the man should be so poor as to live on alms. But after that, if he be poor, he may work privately in his own house.” Thus, all those whose business lies out of doors, and who are obliged to wander about in order to get a livelihood, are completely cut off from the possibility of supplying the wants of their family. The law was evidently made under very different circumstances from those in which the Jewish people are now found. It presupposes that every one has got some trade or occupation whereby he can earn his bread at home, but this is not the case at present. A large proportion of the people, in every part of the world, now get a living by frequenting the public resorts of men: to forbid these, then, from going forth to their work, is equivalent to forbidding them to eat during seven days. Why then should Israel be bound by these laws, which even, according to the confession of the rabbies, have no Divine authority, and are now only oppressive to the poor?
But it is not merely of inconsideration for the poor that the oral law is guilty: we have more than once remarked the proud contempt with which it treats the poor and the unlearned, and are sorry to find it even in the laws concerning the last sad offices to humanity:—