[Brother to marry deceased Brother’s Wife, to raise up seed to his
Brother.]
§ 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?