Science, Torah, and The Deceased Wife’s Sister Controversy: Part I

The Plan

We are going to discuss what we mean when we say that science changes. We are also going to look at some Jewish skeptics of science, and their understandings and misunderstandings of the concept of a science that changes.  We’re going to do this through the lens of Yevamot, and examine in some depth The British Medical Journal’s understanding of Ta’amei Hamitzvot, the reasons for the commandments in the Torah. But to do so will require a detour into a fascinating social debate that took place in Victorian England. We are going to dive deeply. So strap in. (Yes I know. Too many metaphors. Sorry.)

Background – Yevamot 8a.

In Leviticus (18:18) the Torah states

"ואשה אל אחתה לא תקח לצרר לגלות ערותה עליה בחייה".

You shall not take a women with her sister to become rivals, to lay bare her nakedness, while her sister is still alive. 

Based on the word בחייה – is still alive, the Talmud in Yevamot (8b) established that a man may marry his wife’s sister if, and only if, his wife had died.  

This is reflected in the Code of Jewish Law, the Shulchan Aruch, which ruled (as did Maimonides) that the prohibition against a man marrying his wife’s sister exists only while his wife is alive. On her death, a man may marry his deceased wife’s sister. 

 אחות אשתו אסורה לו מן התורה, כל זמן שאשתו קיימת, לא שנא אם היא אחותה מן האב או     מן האם,  ואפילו גירש את אשתו. אבל לאחר מיתתה, מותר באחות

(שולחן ערוך אבן העזר הלכות אישות סימן טו סעיף כו) 

Just to be clear – this is not the central focus of Yevamot, which is concerned with levirate marriage; that’s when a man marries his dead brother’s widow; but it is very important since it will touch on issues central to science and Yevamot.  Let’s see how.  

Was Henry illegitimate?

The Jewish law allowing a man to marry his dead wife's sister was not followed in Victorian England. Quite the opposite - a marriage like this was forbidden. But a debate about this law began with a question about the the legitimacy the Duke of Beaufort. Henry Somerset (d. 1853) the seventh Duke of Beaufort, had married Georgina Fitzroy and had fathered two girls with her. But Georgina died in 1821, and the sad Duke then married her younger half-sister Emily, with whom he had a further six daughters, and a son. (I know this is beginning to sound like a complicated episode of Downton Abbey, but bear with me. It’s worth it.)  That son was Henry Charles FitzRoy Somerset (1824-1899), who later became the 8th Duke of Beaufort. But there was a problem. Perhaps Henry was not a legitimate heir to the House of Somerset, since he was the child of a union of a man and his wife’s sister (or in this case, half-sister.) If the old Duke’s marriage to his dead wife’s (half-) sister was prohibited, then Duke Henry was a bastard child and his inheritance would have to be passed on to other males in the family line. There was a lot at stake.

The solution came with the 1835 Act to render certain marriages valid and to alter the law with respect to certain voidable marriages, introduced by Lord Lyndhurst. This Act retrospectively made any marriage like the old Duke’s valid, but prohibited any such marriages from taking place in the future.  In this way, the present Henry, Duke of Beaufort, was not a bastard child after all; he could inherit the estate, and all was made good.

Except that it wasn’t. The Act did not settle matters at all, and ignited a debate in England that lasted seven decades. 

In addition to regular parliamentary bills and debates, pamphlets, letters, treatises and statements from all sides were published steadily through this period; major journals carried articles from leading figures in the controversy…and at least five novels took marriage with a deceased wife’s sister as their explicit subject
— Wallace, Anne D. “On the Deceased Wife’s Sister Controversy, 1835-1907."

The Chief Rabbi and the Royal Commission

In 1842, and almost every year after that, the British Parliament debated whether to legalize the marriage between a man and his dead wife’s sister. Queen Victoria appointed a Commission to look into the whole thing, and look it did, producing a report of over 150 pages in 1848.  Buried in that report is a letter from the Chief Rabbi Nathan Adler, who made the Jewish position very clear.

...the marriage of a widower with the sister of his deceased wife… is not only not considered as prohibited, but it is distinctly understood to be permitted, and on this point neither the Divine Law, nor the Rabbis, nor historical Judaism leave room for the least doubt.
— Chief Rabbi Nathan Adler, Appendix to the Report of the Commissioners appointed to inquire into the state and operation of the Law of Marriage

It didn’t much matter. The law remained the law, though it seemed that the British public ignored their learned lawmakers.  In one 1849 parliamentary debate, it was estimated that there were some 13,000 such marriages. These marriages in turn produced about 40,000 children, all of whom were, by Victorian standards, bastards.

Things became especially heated in the late 1870s when some 3,000 farmers (all, apparently from Norfolk – what was happening in Norfolk?) signed a petition “praying for the legislation of marriage with a deceased wife’s sister.” And so, in May 1879, the Prince of Wales himself introduced a bill to legalize this marriage in Britain’s Parliamentary upper chamber, the House of Lords. Their lordships droned on, and on, and on (the transcript takes up some eight pages of single space font) until the measure was struck down in a vote: “Contents 81: Not-Contents 101”.

But even in England, things do change, and by the beginning of the twentieth century, Parliament was ready to legalize what many women were already doing with their dead sister’s husband. The Deceased Wife’s Sister’s Marriage Act of 1907 was passed, and British law finally caught up with that of the Talmud.


Next time:

The scientists weigh in on the Marriage Act as we look at The British Medical Journal and its understanding of Ta’amei Hamitzvot and Yibbum.

 

 

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