Exposition of the Laws of Moses, Exegesis 8 · Chapter 34
CHAPTER XXXIIII. Whether a brother naturall (to keepe the Tribes diſtinguiſhed) might marrie his brothers wife or not in Iſrael, or is it meant onelyonly of the next kinſman?
DEVT. 25.5. If brethren dwell together, and one of them hauehave no ſeed, &c.
THe Law is given firſt to naturall brethren, and not to kinſmen onelyonly: for the Text ſaith, if brethren dwell together, and one of them die and hauehave no child, Numerus cardinalis pro ordinali, vuus pro primo: as the evening and the morning was one day, that is, the firſt day. Gen. 1.now what brethren dwelt together? are they not naturall brethren: and one of them hauehave no ſeed, that is, if the eldeſt of them hauehave no ſeed, vnus pro primo.
And that it is meant of naturall brethren, ſee it by the practiſe of the people of God, for when Er died Onan was bound to raiſe up ſeed to him, Gen. 38.9. So Ruth 1.The ſecond brother was to marrie his eldeſt brothers wife. when Machlon the elder brother died without children, then the inheritance came to Chilion. And when Chilion died without children, then his Vncle his neereſt kinſman was to ſucceed; and laſt the brothers children or couſin germans, and he who was to ſucceed in the inheritance, it was he who was bound to marrie his brothers wife: wherefore the Law meaneth firſt of the naturall brother, and if there were no naturall brethren, then the couſins or next kinſmen were to doe this dutie.
When the Sadduces propounded the queſtion to Chriſt, that ſeven brethren married one wife; it is meant of ſeven naturall brethren, ſee Tobit 3.8. And where it is ſaid Deut. 25.5. the wife of the dead ſhall not marrie with a ſtranger, what is that, with a ſtranger? That is with one who is not of the familie of him who is dead. And firſt ſhe was bound to marrie with the naturall brother, who was not a ſtranger, and if there had not beene a naturall brother, then with the next of the kinſmen, who was not a ſtranger. Wherfore ijbbam and foreign are underſtood firſt of the naturall brother, and then of the next kinſman.
Object. But it is promiſed under the Law as a great bleſſing, that he ſhould leaue a poſteritie behind him, and that his name ſhould not be blotted out in Iſrael. But if the brother married his brothers wife, then his children were not called his children, but his eldeſt brothers children, and ſo his name was blotted out in Iſrael: and ſo he might hauehave ſet up a pillar as Abſalon did for continuance of his name, becauſe he had no children of his owne.
Anſw. But to hauehave the name of Ieſus Chriſt continued is a greater bleſſing, Pſal. 72.19.To be the father of Ieſus Chriſt according to the fleſh, a greater bleſſing to the ſecond brother, then to hauehave children of his owne. coram ſole filiabitur nomen ejus per ſucceſsionem filiorum, we ſee what befell Onan becauſe he refuſed to doe this dutie, hee ſaid the ſeede ſhould not be his, therefore the Lord ſlew him, Gen. 38.9.10.
Object. But God expreſly forbad in his Law, that a man ſhould lie with his wives ſiſter, and by the ſame Law it is forbidden that a man ſhould lie with his brothers wife, this might ſeeme to bee inceſt and confuſion.
Anſw. God indeed forbad in his law that a man ſhould lie with his brothers wife, but God who gaue that law,God hath many exceptions from his owne Law. hath given this law alſo. And as the Iewes ſay, qui obſervare juſſit Sabbatum, is etiam juſſit profanare Sabbatum. So the Lord who forbad a man to lie with his brothers wife, hath reſerved this priviledge to himſelfe to make an exceptiō from the law. The Lord commanded in his Law Deut, 24.4. If a man put away his wife and ſhee goe from him, and become another mans wife, he may not take her againe to wife; yet the Lord tooke his Church againe Ier. 3.1. he hath reſerved ſundry priviledges to himſelfe and exceptions from the Law.
Morale poſitivum. Divinum poſitivum.Secondly, we muſt diſtinguiſh here betwixt theſe lawes which are morall poſitiue lawes, and theſe which are divine poſitiue lawes.We muſt diſtinguiſh betwixt the morall poſitiue part of the Law, and the divine poſitiue part. Morall poſitiue lawes are ſuch, which the very light of nature commaundeth. Divine poſitiue lawes are theſe, which are acceſſory commaundements added to the firſt. Example. This is a morall poſitiue law, that a man ſhould not lie with his mother, nor with his mother in-law; for this is a fornication that is not named amongst the Gentils, 1 Cor. 5.1. And it was for this ſort of inceſt that the Cananites were caſt out of Canaan. So this is primarium jus naturae, or morale poſitivum, that a man ſhould not lie with his daughter, nor his daughters daughter, deſcendendo deſcending downward.What is primarium, and what is ſecundarium ius naturae. But this againe is divinum poſitivum, or ſecundariū jus naturae, in the collaterall line that a man ſhould not lie with his ſiſter or his brothers wife, no marriage in the collaterall line was forbidden at the firſt by the law of nature, or morall poſitiue law, but it was forbidden afterwards by the divine poſitiue law, Levit. 18.16. When Iuda lay with his daughter in-law, this was inceſt in the higheſt degree, becauſe it was contrary to jus naturale, or morale poſitivum. So when the Corinthian lay with his mother in-law, it was againſt morale poſitivum, foreign Amita, it ſhould not be tranſlated Patruclis his couſin german but, his fathers ſiſter. See Num. 26.59.or jus naturale. But when Amram married Iochabed his fathers ſiſter, Exod. 6.20. this was not againſt the morall, poſitiue, or naturall part of the Law, becauſe it was not in the right line, but in the collaterall, although in the neereſt degree, it was againſt the divine poſitiue law.
And for to repleniſh his Church with people, God overſaw this ſort of marriage at the firſt. But God doth more here, he commandeth the brother to raiſe up ſeed to his brother. Firſt this is not contra primarium jus naturae, becauſe it was not in the right line. Secondly it is an exception from ſecundarium jus naturae: for when God willed them to doe this, he willed them not to doe this to ſatisfie luſt, for that was contrary to primarium jus naturae, but onelyonly that the elder brother might bee a type of Ieſus Chriſt, who ſhould neuer want a ſeed in his Church. If a woman were barren, the Lord could not command another man to goe in unto her and beget children upon her, for that were contra primarium jus naturae; the Lord will not ſuffer now that a brother ſhould marrie a ſiſter, as he did in the beginning of the world, neither if a brother now ſhould marrie his eldeſt brothers wife were it lawfull, for now the eldeſt brother is not a type of Chriſt, and it ſhould not bee an exception from the Law, but contra ſecundarium jus naturae.
Concluſion. The concluſion of this is. God who giveth the Law maketh not a Law to himſelfe, but he hath reſerved to himſelfe exception from the Law, when and where it pleaſeth him.