§ 2. Provided always, that, in reference to the above prohibition of the brother taking his brother’s widow, it shall yet be lawful, authorized and required (under penalty of a stigma of disgrace, to be attached to him who fails in compliance), that in the case of a man’s brother dying childless, in order to prevent the extinction of a house in Israel, his brother shall take the deceased brother’s wife, and raise up seed unto his brother; and, therefore, that the first-born child of such union shall succeed in the name of the brother who is dead, and be accounted and taken by the law of this land as not of the family of the second brother, but of the first, and shall be the heir, both in name and possessions, of that deceased brother, whose widow’s child he is.
[But none to take a wife to her sister, beside the other in her life-time.]
§ 3. But, inasmuch as in the case of two brothers having married two sisters, the enactment of the preceding section might, and, in the event of one brother dying childless, would, authorize and require a man to take to wife two sisters, his brother’s widow being in such case his own wife’s sister, and whereas, if his own wife should at such time be alive, this might lead to rivalry and vexation, be it further enacted, that nothing herein enacted, in the previous section or in any part of this Act, shall authorize, permit or require any brother, even for the purpose of saving a house and family from extinction, to take to wife the sister of his own wife, his said wife her sister being yet alive; and be it therefore enacted, that in such case, where such would be the result of the enactment of the previous section of this Act the provision of the said previous section shall become inoperative and of none effect, rather than a man take a wife to her sister to vex her, beside the other, in her lifetime.
Upon this illustration I will only ask—Would not such an Act of Parliament be perfectly distinct and clear? Could any one possibly misunderstand it? Would not every clause and section have its own plain and intelligible sense? Especially would not the last clause or section have a full and sufficient both sense and application without any man’s dreaming for a single moment of there being contained in it a repeal of any portion of the table or schedule of degrees? I say contained in it, because no doubt the second section would contain something of this kind, and yet, be it observed, not a repeal, but a partial exception; that is, in one particular case, and for one particular specified purpose, the second section would modify one entry in the table, that of the brother’s wife or sister’s husband (as it is confessed on all hands, the law of the Levirate, Deut. xxv., does modify the law of the 16th verse of Lev. xviii.), but even so, I must insist upon it, not repealing it; for the exception would operate only when the brother had died childless, leaving the entry in the schedule in fulness of prohibition in all other cases. And it is beyond all question that that modification would be due to the second and not to the third section of the Act. The third or last section would have nothing to do with any relaxation of the law, but would be merely a restrictive provision in relation to the working of the previous section, being, as I have all along been shewing, a narrowing, not an enlarging the liberty given under the exception in the previous clause and having no further bearing:—therefore having nothing to do with any entry in the schedule; nothing to do with the permission to take the brother’s wife or the sister’s husband, and, if so, nothing at all to do with the object for which that clause, so to speak, is used by the promoters of the change in our law, as proposed in the Wife’s Sister’s Marriage Bill.
Moreover, does not this account make it perfectly intelligible why the first section should remain in the integrity of its enactment, and all the entries find their place in the schedule, because no single entry is repealed even by the modification caused by section 2? But surely it would have been absurd to enact, or to retain in the table, the entry as to a brother’s wife or sister’s husband, if an almost immediately subsequent contradictory enactment were wholly to repeal it, as contended by the promoters of the Bill in question.
I do not know that I have more to add unless it be to meet briefly a possible objection from the law of the Levirate not being found in the same place with the other two passages, nor indeed in the same book of Leviticus, but in another book of Holy Scripture. It may, perhaps, be asked—Is it not strange and unnatural to find the exception to an exception entered where the first exception itself is not recorded, and perhaps even before that exception was made at all?
I would reply, first—
If this be an objection, it is one to which the Mishna, and the Jewish Rabbis, and Dr. M’Caul are open just as much as I am. For they all acknowledge and maintain that upon that 18th verse of xviii. Leviticus is founded the prohibition which they all claim as to the brother in the case of two brothers having married two sisters; of the one not being permitted to obey the injunction of the law of the Levirate, as to taking the other’s wife in the particular case of the one brother leaving a widow whilst the other brother’s wife is yet living.
I would reply, secondly—
That the objection, from the exception in Deut. xxv. not possibly having been then made, is as nothing when the lawgiver is not man but God, who knows from the beginning all which He intends. [30]