'ii/: ■ ■:* yJ . h SOI M^3 (Ifornell Mnteraitg 2Iibrac9. Dttfata. New f orh 3 FROM THE BENNO LOEWY LIBRARY COLLECTED BY BENNO LOEWY 1854-1919 BEQUEATHED TO CORNELL UNIVERSITY HQ 50/.lS°63"' ""'"""^ "-'""^ ^''^lllHlllil»lll!ffi■,l,,!S,SMe a"f divorce 3 1924 021 846 773 All books are subjoct to recall after two weeks. Olin/Kroch Library DATE DUE w ;.■ ^r^T^v'^Wi'^ Tm^^ ^'^."- . tTJ*l996 Mi.m IMBf /thiff^ 1 . 1 f*** iCJQ'y "- E^^^H^^^ §^ffi^ i GAYLORD Pnll>frED IN U.S.A. Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021846773 THE JEWISH LAW MARRIAGE AND BIVORCE m ANCIENT AND MODERN TIMES, ITS RELATION T() THK LAW OF THE .STATE Rev. Dk. M. ^lELZlNER, I'nifissor I'i iJic- TiiJraud and ot the Rabbinical Disciplines atotlie Hkbhew Union Cui.i.i I TlIE BLOCn PUBLISHINII AND PuIXtLni; COMI-ANV, CrXCIXXATI, 1S,S4. 7 Enterefl according to Act of Congress, in the year 1881, tiy The BLOCH Publishing and Printing Cojnpany, in tlie Office of the Librarian of Congress at WaEhington. inscribed to the blessed memory of my beloved father and teacfler, Rev. benjamin MIEJ>ZINER, Late Rabbi in Schubin, Gekmajjv, in filiai- piety, The Author. PREFACE, In more than one respect, the subjeot treated in the fol- lowing book deserves a full share of our attention. Regarded merely from the general scientific poir|t of view, and espe- cially from that of the history of law imd of comparative legislation, it must be of the greatest interest to obtain a clear insight into a very minute and (*ircumstantial law of marriage, the origin of which dates back to Biblical anti- quity, and which, although adapted in many particulars to conditions that have since changed, neyertheless has a well- founded historical importance, from the* fact that, through a long succession of centuries, it has exerted the most salutary influence upon the domestic life of the Jewish j^eople all over the world. This law of marriage, however, lays claim to more than a mere historical and archaeological interest, inasmuch as it affects the life of to-day. In numerous instances it is still acknowledged as the rule and criterion of practical conduct. Many of its precepts and regulations are authoritative for religious Israelites even wjhere, as here m the United States and in some European countries, civil marriage cxisfn and the State takes no cognizance whatever *of the ecclesiastical element of marriage. In those countries in which the law is adapted to the different forms of faith of the recognized religious bodies, and where consequently the Jews hove also PREFACE, their own jurisdiction in matrimonial g,fiaira, as is the case, for instance, in Russia, Poland and partially also in Austria, Hungary, and other States, Jewish marriages are contracted and dissolved essentially^ solely in accordance with the ordi- nances of the Jewish Marriage Law. In consideration of the imiDortance of the subject in ques- tion, the Rabbinical Literary Association of America, at a meeting held in Detroit, Mich., in thS year 1880, declared, " that an exhaustive presentation of the historical and lit- erary material bearing upon the Jewisfi. Laws of Marriage and Divorce is very desirable,'' and a commission was ap- pointed " to collect that material and .to report thereon at one of the following meetings of this Association." (i) At the meeting held in Chicago the following year the com- mittee rc^iuested and was allowed further time for report. Since then there has been no opportunity for presenting -=uch report, for the reason that the Association, since the lamented death of its founder and President, the Rev. Dr. ]\I. Liliexthal, seems to have lost its vitality. As chairman of the above-mentioned committee, I liave nevertheless not neglected to give the subject my fullest attention. The rich material collected through a careful study of the sources, and l\v an investigation of the modern literature of the sub- ject, I have elaljorated into a course of lectures "On the Jew- ish Law of Marriage and Divorce," which I have delivered to the Senior Cla,«s of the Hebrew Union College. The essen- tial part of these lectures, considerably expanded, and with the addition of numerous notes and references to the sources) iis here presented to the reading public. ■; • The author indulges in the liope that thi.s treatise will not only be welcome to ministers of congi>egations and jurists, ^i) Report (if (lie rnicee'lin-js of tlic Seeoiicl Regular Meeting of the KabV)inii-al Literuvj' Association, published in the Ilehn^v) Tlri'leu', vol. I., p. 8(1, H »eq. PREFACE. 7 but -vviil also furnish not uninteresting reading for the edu- cated public in general. With the exception of an excursus i-n Dr. M. Kalisch's Commentary on Leviticus, which, treating of the Mosaic Mar- riage Law, pays also some attention to the rabbinical regula- tions, and of Dr. Ginsburg's article on Marriage, in Kitto's Cyclopsedia, adopted also in Clintock and Strong's Cyclopae- dia of Biblical Literature, nothing, so far as I know, has been published in English on this subject. In German there are some few able treatises, particularly one by the late Dr. Z. Frankel, (^) and one by the late Rabbi Leopold Loew, (^) to which I have occasionally referred in .the notes. The pres- ent work differs from them, however, not only in the sys- tematic arrangement and popular treatment of the material, but also in the special notice which it takes of all the ques- tions which have arisen in modern tiiJies, concerning the Jewish Law of Marriage, and of all the resolutions Avhich have been passed in the last forty years by the various Rab- binical Conferences and Synods for the purpose of bringing some of the provisions of the Jewish marriage law into har- mony with the changed circumstances of our time. For the first time, these important resolutions, which are scattered ill the reports of the respective sessions^ have been collected, and are given verbatim in their appropriate connection. (1) Grundlinien des mosaisch-talmudische a Eherechts, rom Director Dr. Z. Fkankel. Breslau, 1860. (2) EherechtUche Studien, von, Leopold Loew', published in the peri- odical Ben Chaaanja, vol. ITI.-V. ' Of other treatises on this subject we mention the following : Saalsciiuetz, j/ysa(sc/ics Jii'clit. Berlin, IH'y.l (sec. edition), chapters 102-106. Fassel,, Das Mosaiscli-rahhiiiisclie Civilrecht. Wien, l,sr)2, 1., pp. 28-71. LicHTSCHEiN, Dii- Ehe nacJi, TahnudiBclier Atfffassainj . Leip^iig, 1879. Besides, M. Duschak published a book — L>/i,s Moaaisch-Talm. Ehe- recht, which, however, 1 never had the opportunity to get a sight of. » PREFACE. Moreover, in the notes, proper attention has been paid to the provisions of the Common Law and of the laws of the various States of the Union on the subject, so that the relation of the Jewish law to the law of the land is in some cases more clearly exhibited. Only wbrks which are rec- ognized as authorities in America have been referred to, namely, Kent's Commentaries, BouviEiif's Institutes, and es- pecially Bishop on Marriage and Divorce. Before setting forth at length the esi^ential laws concern- ing marriage, a chapter has been introduced on tlie ethical doctrines of the Bible and the Talmud concerning this rela- tion, since, in practice, these doctrines have mitigated the severity of many of the provisions of the law, and have sub- stantially contributed to make the Jewish marriage, in all times and countries, a shining example of chastity, devo- tion and domestic bliss, so that it has itot infrequently beeu set up as a model by the adherents O'f other faiths. The Author. Cincinnati, August, iS84. TABLE OF CONTENTS. PACE, Intkoduction. ----- - - i;'r CHAPTER I. The Marriage Relation, according to the Ethical, Dootkines OF THE Bible and the Talmud. ^ 1, 2. - - - - IS- CHAPTER II. The Sources of the Jewish Marriage Law. ^ S. - ~ 20 Modern Modifications. ^ -l. - - - - - 22 CHAPTER in, Legai, View of Marriage. § 5. - - - - - -•'>• CHAPTER lY. Monogamy and Polygamy. a. Biblical and Talmudical Period. § 0. - - - 2S' b. Rabbinical Interdiction of Polygamy. § 7. - - 30 c. Circumstances Influencing the Prevalence of Monog- amy. § 8. - - - - - - - 31 PROHIBITED MARRIAGES. CHAPTER V. A. Consanguinity AND Affinity. ^ 9. - - - - ;;,'} (I. Biblical Degrees. § 10. - - - - - .14 h. Talmudical Extensions. ^ 11. - - - - ;!7 r. Not Objectionable Degree.'!. 6 12. - - .it) Table of Prohibited Degrees. - - - - - 41 9 10 CONTENTS. CHAPTER VI. PASE. B. Prohibition in Consideration of Chastity. I. The Divorced Wife. § 13. ^ - - • - 42 II. Tiie Adulterers. ^ U. - - - - - 42 III. Suspicion. §15. - - - - - - 43 IV. Mamzer. §16. 43 V. Spadones. § 17. . - - - - - - 44 CHAPTER VII. ■C. Prohibitions on Account of Religious anp Other Consid- erations. fl. Intermarriage. \ a. BibUcal and Talmudical Grounds. § 18 - - - 45 ■< b. The Question of Intermarriage in Moderp Times. §19. 47 / c. Further Opinions on the subject of Intermarriage. § 20. 49 Vj?. Conclusion. § 21. - - -" - - 52 S. Levirate and Chalitza. a. Biblical and Talmudical Precept. § 22. - - - 54 b. Modern Views and Resolutions of Rabbinical Confer- ences. § 23. - - - - - - - 57 3. Prohibitions Especiallg for Aaronites. § 24. - - - 59 CHAPTER VIII. Tempobaby Impediments. I. Preventive Against Uncertainty of Paternity. § 25. - 61 II. Pregnancy and the Suckling Child. § 26. - - 62 TIT. Mourning. § 27. - - - - - - 63 IV. Obstructive Days. § 28. - - - - ().] CHAPTER IX. 'Qualifications to Contract Marriage. 1. Consent, a. Mutual Consent, § 29. - - - - - 66 ii. Conditional Consent. § 30. - - - - 67 c Error and False Representation. §31. - - - 69 (}. Consent of Parents. § 32. • - - - 69 3. Mental Capacity. II. Idiocy and Lunacy. § .'^3. - - - - - 70 h. The Deaf and Dumb. § 34. - - - - 70 3. Legal Age. a. At what Age Marriage in Lawful. § 35, - - - 71 b. The Minor Daughter. § 36. - v - - 72 CONTENTS. 11 THE FORM OF CONCLUDING MARRIAGE. CHAPTEK X. PAGE. The Form of Marriage in Anhient Timijs. Introductory. § 37. - - - ' - - - 75 A. Betrothiiient. ■a- Its Term and Nature. ^ SS. - - - - H> h. The Modes by which Betrothme^tt was Effected. § 39. 77 ■c- Betrothal through Representatives. § 40. - - 80 4. Witnesses. Ml- - - - - - 80 ■e. Doubtful Betrothment. § 42. - - - - 81 /. Benediction of Betrothal. ^43. - - - 82 Ji. Nuptials. a. Interval between the two Acts. § 44. - - - 82 h. Term and Essence of the Ceremonies. § 4-5. - - 83 <-. Religious Ceremonies. § 46. - - - - 84 d. Combination of Betrothal and Xciptials. (j 47. - S.j f. ICethuba. § 48. - - - - - - 8,5 /. Form of the Kethuba. §49. - - - - 87 g. Former Importance of the Kethuba. § 50. - - 88 CHAPTER X.I. The Form of Marriage i.n our Time. 1. The Modern Mode of Solemn izulioii. § 51. - - - 90 Minor Differences. § 52. - ■ - - - 91 a. One or Two Wedding Rings. - - - - 91 6. The Formula of the Wedding CeKcmony. - ■ - 92 c. The Ritual. ------- 93 Civil Marriagi:. § 53. - - - . . 93 THE EFFECTS OF MARRIAGE. CHAPTER Xil. The Offspring of Lawful and Unlawful Marriages. Rabbinical Principles and Rules. ^ 54. - - - - 95 CHAPTER XIJTI, Husband and Wife. Introductory. § 55. - - - - - - - 98 1. Marital Duties and Rights. a. The Hu.sbaud's Duties, fj 5(1. - - - . ijs h. His Legal Rights. § 57. - - - - 102 c. The Wife's Duties and Riglits. § 58. - - - 103 3. Tlie Wife's Property. § 50. - - - - 104 12 CONTENTS. DISSOLUTION OF MARRIAGE; CHAPTER XIV. page: Dissolution by Death. Introductory. ^60. 10& a. The Evidence ot Death. § 61. - - - - 10!> b. The Witnesses to the Death. §62. - - - - llO r. Consequences of a Premature Remarriage. ^ 63i - 111 (/. Identification. § 64. - - - - - - 111' c. Absent and not heard of. § 65. - - - 112 /. Resolutions of Rabbinical Conferences. § 66. - - 113 CHAPTER XV. Divorce. 1. Introductory. § 67. - - - - - - l'ir> 2. Regulations of the Mosaic Law. § 68. - - - lift' 3. Rabbinical Interpretation and Provisions, i 69, - - llH 4. Restriction of the Right of Divorce. § 70. - - - 120' 5. Specific Causes for Divorce, a. Mutual Agreement. 4 "1- - - - - - I'-'l h. The Husband's Causes. § 72. - - - - 12'i c. The Wife's Causes. § 73. - - - - - 12S d. Divorce Against the Will of Both Part§3S, i 74. - 124 6. Causes for Divorce considered in Modern Degislation, § 75.. 12.5 7. The Bill of Divorce. ^ 7(5. . . - . - ]28. 8. Form of the Bill of Divorce. § 77. - - - - 129> CHAPTER XVI. The Jewish Law of Divorce in Modekn Timi;^. a. A Modern Question and its attempted solution. § 78. - 130 b. Propositions submitted to the PhilMelphia Confer- ence, ^79. - - - - - - - 1.'3- c. Resolutions passed by that Conference. § 80'. - l-''* d. Explanatory Remarks to those Resolutions. 4*1). - 136 e. Conclusion. ^ 82. - - - - - ir.7 Alphabetical Index, ------- 139 THE JEWISH LAW OF MARRIAGE AND DIVORCE. INTRODUCTION. Marriage is the most important and sacred of all •domestic relations. It is the origin of all other relations of life, and forms the foundation of human society. Besides, it is a relation in which nian's happiness for life is materially involved, and which serves to protect and promote moral purity. In Israel, marriage has at all tim(js been regarded in this light, as is already evident from the prominence Tvhich is given to it in Biblical and post-Biblical litera- ture. Many chapters and innumerable passages of Scrip- ture speak of this relation, and no less than five treatises lof the Talmud are almost exclusively devoted to regula- tions concerning husband and wife. But with regard to those relation's of .life, including marriage, which are regulated in the Bible and in the Talmud, a distinction should be made between Ethical Doctrines and Laws. Ethical doctrines teach the eternal principles of justice, love, and moral purity, as a standard qf duty and a model ■of perfection. La^v is the embodiment of these princijdes, their application to and modification in certain relations, under existing circumstances. Ethical doctrines regard iman as an ' individual created in the image of God, and 13 14 INTRODUCTION. destined to happiness and perfection. Law regards man as a member of human society and a subject of a certain state or government, and its main object is to protect that society and secure its welfare. Ethical doctrines appeal to man's reason, heart and will ; law regulates his actions. Obedience to ethical doctrines is a matter of conscience. Obedience to laws is enforced by penalties. Ethical doc- trines are uncompromising. They protest against all exist- ing evils of human society, and tell man what he ought to be, and how his relations ought to be ordered according to the will of God. Laws consider man as he is, and his relations as they are, and try to dimiliish and restrict general evils which under existing circumstances can not at once be abolished and extirpated. The Bible contains laws as well as ethical doctrines. The former are laid down in the second, third and fourth books of the Pentateuch (namely, Exodus, chapters xx.- xxiii. ; chapters xxv.-xxxi. ; chapters xxxiv. and xxxv. ; Leviticus, chapters i.-viii. ; xi.-xxv., xxvii. ; Numbers, chapters v.-x. ; xviii., xix. ; xxvii. -xxx.) and, with some modifications, are repeated in Deuteronomy, chapters iv.- xxvi. As all laws contained in these books of Moses are proclaimed in the name of God, who is the source of all ethical truth, it is but natural that even this legal part of Scripture is occasionally blended with ethical doctrines and principles. The prophetical, poetical and didactical books, to which also the first chapters of Genesis belong, contain ethical teachings only. As the Bible, so also the Talmud, contains both laws and ethical doctrines. The interpretation and develop- ment of the law is the object of the HIlacha, while the ethical doctrines and views belong to the province of the Agada. CHAPTER I. THE MARRIAGE RELATION, ACCORDING TO THE ETHICAL DOCTRINES OF THE BIBLE AND THE TALMUD. §1. The ethical view of the Pentateuch concerning mar- riage is indicated in the following passage in the history of man's creation : "And the Lord said, It is not good that man should be alone ; I will make him a helpmate for him. " He made a woman, and brought her u'nto the man. " And Adam said. This is now bone of my bone, and flesh of my flesh ; she shall be called Woman, because she was taken out of Man. " Therefore shall a man leave his father and his mother, and cleave unto his wife, and they shall be one flesh." (Gen. ii. 18-24.) To this must be added, from chapter i. 28: " And God blessed them and said to thein, Be fruitful, and multiply, and fill the earth and subdue it." The principles expressed in these passages are : 1. Marriage is a divine institution for man's happiness and welfare. 2. Woman is a part of man's own being; hence, not, as according to the degrading views of almost all nations of antiquity, his inferior and slave, bpt equal to him in dignity, and destined to be a help at his side. 15 IG KTinCAL DOCTRINES. -J. Through mutual, sincere affection, whicli is even more intensive than that which naturally exists between chil- dren and their parents, husband and wife shall become one flesh, that is, they shall coalesce in one being, one person. 4. Marriage was ordained and blessed by God, not only for the purpose of securing the "material and moral welfare of the individual, but also lo i)reserve and con- tinue the human race. The consequences of these principles are : (a) As a divine institution, marriage inust be sacred and inviolable. {b) Perfect union and harmony shall exist between hus- band and wife ; in mutual love and affection they shall assist each other, contribute to each other's perfection and happiness, and share a common destiny as to the good or evil which shall happen to .them. (c) The principle that " man shall cleave to his wife, and that they shall become one being,'' excludes Polygamy as well as Divorce, as contravening the will of God and the design of marriage. (d) The double purpose of marriage to secure the welfare of the individual and preserve and propagate the human race, implies the duty of man to\\'*ird himself and to human society to leave the state of singleness and enter the state of married life, as soon as he is able to found and support a famil}'. The same sublime principles concerning the conjugal relation pervade the other ethical books of Scripture, (■specially the book of Proverbs : " Whopo findeth a wife findeth a good thing, and obtainoth favor of the Lord." (xviii. 22.) ETHICAL DOCTHI.NE^;. 1/ " House and riches arc the inheritance of Mhers, and a pru- dent wife is from the Lord." (xix. 14.) '■A virtuous woman is a crown to her husb'and." (xii. 4.) The last chapter of Proverbs contains a, glorious alpha- betical song in praise of the noble wife, beginning with the words : " Whoso findeth a virtuous wife, findeth that her price is far above rubies." '' She doeth him good and not evil all the days of her life." (xxxi. 10-12.) The same book i,s profuse in warnings against any vio- lation of the purity' and sanctity of the conjugal relation (ii. 10-1'.) ; V. S-22 ; vi. 24-o~> ; vii. 5-27, and other pas- sages). On the other hand, the purity of marriage life is recommended and its happiness praised^in the following figure : " Drink waters out of thine own cistern, and refreshini^ waters ■out of thine own well. " Let them be only thine own, and not strangers with thee. " Let thy fountain be blessed, and rejoice with the wife of tliv youth. — Be thou ravished always with her love." (vs. 15- (Similar, also, is the admonition in thic book of Eccle- siastcs ; " Live joyfully with the wife whom thou lovest." (ix. 6.) The discourses of the Prophets very often refer to the conjugal relation. The sacredness of this relation is there repeatedly used as a figure to sj^mbolize 'that relationship which subsists between God and his people. Thus, liosea ii. 21, 22, represents the Lord as concluding a covenant with Israel, saying : " And I will betroth thee unto me forcver» '• I will betroth thee unto me in righteousness, and in judg- ment, and in loving kindness, and in mercies. ■' I will betroth thee unto me in faithfulness." 18 ETHICAL DOCTRINES. Malachi speaks more directly abojit marriage when h& terms it a covenant, concluded in l;he presence of God, who looks with anger upon the treachery of faithlessness, and in whose eyes divorce is hateful : " The Lord has been witness between thee and the wife of thy youth, against whom thou hast dealt treacherously ; yet is she thy companion, and the wife of thy covenant. * * * * Therefore take heed to your spirit, and let none deal treach- erously against the wife of his youth. " For the Lord, the God of Israel, saith that he hateth dismis- sal." (ii. 14-17.) §2. The sublime ethical doctrines of the Bible concerning the matrimonial relation are re-echoed also in the Rab- binical sayings contained in the Talmud and Midrash. The following is a selection from these sayings : " He who liveth without a wife is no perfect man." (Yeba' moth 63.) " To be unmarried is to live without Joy, without blessings, without kindness, without religion, without protection, with- out peace." (Yebamoth 62. ) "As soon as a man marries, his sins decrease." (Yebamoth 63.) " First build a house and plant a vinejard (i. e., provide for the means of the household) and then take a wife." (Sota 24.) " No man without a wife, neither a -vyoman without a hus- band, nor both of them without God.»" (Bereshith Kabba,f chap. 8.) " If virtuous, they are helpmates to eafch other ; if not, they stand against each other." (Yebamoth 63.) " God dwells with the faithful husbaijd and wife. Without him they are consumed by the fire of strife." {^) (Sota 17.) (1) This sentence contains, in the original, an inimitable play on words. The word C'X ("Ish," the husband) and na"S ("Isha," the wife) have ETHICAL DOCTRINES. lij " Descend a step in choosing a wife." (Yebamoth 63.) " Let youth and old age not be joined in marriage, lest the purity and peace of domestic life be disturbed." (Sanhedr. 76 ;: Yebamoth 101.) " He who marries for money, his children shall be a curse tt» him." (Kidd. 70.) "A man's home means his wife." (Yoma 2.) "Let a man be careful to honor his wife, for he owes to her alone all the blessing of his house." (B. Metzia 69.) " If in anger the one hand removed thy wife, let the other hand again bring her to thy heart." (Sanh^drin 1076.) "A man should be careful lest he afflict his wife, for God counts her tears." (B. Metzia 69.) " Honor thy wife, and thou wilt be happy:" (B. Metzia 59.) " Who is rich? He who has a noble M'ife." (Sota 17.)' " Love your wife like yourself, honor her more than yourself ; you will then see the fulfillment of the premise : ' And thou shalt know that there is peace in thy tent.' '' (Yebamoth 63.) " If thy wife is small, bend down to her, to take counsel from her." (B. Metzia 59.) " Tears are shed on God's altar for the one who forsakes the love of his youth." (Gittin 90.) "He who divorces his wife is hated before God." (Gittin 90.) " He who sees his wife die, has, as it were, been present at the destruction of the temple." (Sanhedrin 22.) " The whole Tvorld is darkened for him whose wife died in his lifetime." (Sanhedrin 29.) " A husband's death is felt by none as by Ms wife. A wife's death is felt by none as by her husband." (Sanhedrin 22.) the letters Aleph and Shin, in common, to which the letter.s Yod and He are respectively added. These two additional letters form the name of God, iT' ("Yah"). If this name of God is taken from the faitliless husband and wife, then only 27X ("Esh," fiiv) remains on citlicr .side, indicating that the mutual fire of passion and strife i,\ ill surely fonsume them. CHAPTER TI. THE SOURCES OF THE JEWISH ilAERIAGE LAW. The main sources of the JeMdsh Marriage Law are the provisions of the Mosaic code embodied in the Penta- teuch, and those which are laid down in the Talmud. The Imws of the Mosaic code concerning marriage have ]ire-eminently a negative character, prohibiting that by wliicli the purity and sacredness pf the conjugal life might lie disturbed and defiled. They are very explicit, especially in regard to prohibited marriages. Adultery and incestuous connections, within certain degrees, arc treated as capital crimes. Concerning the mutual rights and duties of husband and wife and concerning divorce only a few positive provisions are made and some occa- sional hints are given. No fixed forms of concluding marriage are expressly mentioned. Whatever the law iiiuitted in this respect was probably left to the customs and usages Avhich had been estaBlished prior to the Mosaic legislation. The marital law of the Talmud, (i) which developed fi) The treati.'jfs of the Talmud almost eStclusively devoted to the laws on Marriage and Divorce are the following: Kiddushin (on be- trotluuent) ; Ketiicbotii (on dower and marriage settlementK) ; Yeh.a- MOTii (on Icvirate and proliibited marriages) ; Sota (on the woman suspected of adultery); Gittin (on divorce). Besides, these laws are occasionally discussed also in other parts of the Talmud. 20 SOURCES OF THE lJL\t. 21 during the period of the second Temple and the first centuries after its destruction, is on interpretation and enlargement of the Mosaic laws. The enlargement con- sists partly in extended provisions, niade by analogy and deduction from the Biblical law, part]}*'in the embodinicjit of those norms and usages which had been handed down by tradition from time immemorial, ■and which now be- came a part of the law; partly, in new regulations enacted by the Sophkkim (the Scribes) and Jater religious and civil authorities, according to the "exigencies of the changed times and circumstances. "The forms of con- cluding and dissolving marriage, as m'ell as the marital rights and duties, are minutely defmed and regulated, and, besides, innumerable casuistical cjuestions concern- ing this relation are particularly treated of in the Tal- mudic Law. Several of these regulation!^, however, under- went some modifications by the decisions of the Gaonim, who, after the close of the Talmud, flourished as the heads of the Babylonian Academies to the eleventh cen- tury. While the law in general is treated of in the Talmud in discussions and controversies, sevcml authorities in tlie Middle Ages furnished codified abstrapts thereof, for prac- tical use. The most important of these systematized code.s, in which due regard is paid, also, to the decisions of the Gaonim and later authorities, arc : 1, Yad Hachez.vka of Maimonides, in the twelfth century, and 2, the Shui.- CHAN Aruch of R. Joseph Karo, sixteenth century. Of the fourteen books into which the former is divided, the fourth, termed Sepher Nashim (comprising Ililchoth Ishuth, H. Gerushin, H. Yibbum uchalitza, H. Naarali Bethula and H. Sota), is devoted to the laws concerning; •Tl9 SOURCES OF THE LAW. the matrimonial relation ; while the Shulchan Aruch treats of the same subject in the third part, termed Eben Ha-Ezer, which is divided into 178 chapters. This latter code, together with the annotations by R. Moses Issrels, and other casuists, obtained general authority in Judaism, and down to our own time a^l questions concern- ing marriage and divorce have been decided according to its rules and regulations. MODERN MODIFICATIONS. §4. Strict adherence to the d}cta of this rabbinical code, was possible only as long as the Je,ws in the different countries of the Old ^Vorld occupied an exceptional posi- tion and wore subject to a distinct judicature, regulated to a certain extent by their own laws, especially in all matters touching marriage, divorce, and hereditary suc- cession. In modern times it js different. Since the Jews, in most of the European countries, haVe in all civil affairs been placed on the same footing before the law with their fellow-citizens, the Jewish courts have been abolished. The rabbi is no longer, as formerly, at the same time the civil judge ; he is now only the spiritual guide and adviser of his congregation. With the abolishment of the Jewish jurisdiction, that part of the rabbinical code which regulates the property and the mutual rights of hus- band and wife fell entirely into disuse. In this respect, as in all other purely civil affair.s, the Jews in our time willingly submit to the regulations of the laws of that country whose citizens they are, according to the Tal- SOURCES OF THE LAW. 23 mudic maxim : " Dina d'malchutha dina " — The law of the country is the binding law. Also, ipany provisions of ihe rabbinical code, especially those concerning the dis- solution of marriage, had necessarily to be modified in •order to make them conform to the requirements of the laws of the different countries. Modern Jews, moreover, find several rules and formalities of the ancient marriage law to be obsolete and impracticable in our days. The ne- cessity of revising the rabbinical code of marriage laws :according to the changed views and circumstances of our "time, has, during the last fifty years, been elaborately dis- cussed by prominent German rabbis iti Jewish periodi- •cals, as well as in separate pamphlets. (^) Subsequently, several rabbinical conferences and synods, especially the conference of 1844, held in Braunschweig, Germany ; the first Israelitish Synod, held in Leipzig in 1869, and the second, held in 1871 in Augsburg ; and .also the conference of American rabbis., held in 1869 in Philadelphia, discussed the subject and passed resolutions by which some of the objectionable provisions of the rab- binical code were declared abrogated and others were more or less modified. References to these resolutions will be made in the following chaptefs at the proper place. (1) See : Geiger, " Die Stcllung des weibliehen Geschlechts im Juden- .ithura unserer Zeit. " Wissenschaftliche Zeitschrift fuer jued. Theologie ^III. 1-14. HoLDHEiM, Aiitonomie der Rabbinen iind Princip der jued. Ehe. HoLDHEi.M, Vorschlaege zu einer zeitgemaesseii Reform der juedi- Kchen Ehegesetze. Schwerin, 1843. See, also: Gutmann's article on Levirate Marriage in Geiger's Wik- istengchaftl. Zeiischrifl, IT., and in Stein's Volksle}ixer I]'., and his and a. Wbchbler'k articles on the formalities of the «ct of divorce in the Batter periodical IX. 24 SOUECKS OF THE LAW. It must, however, be stated that the authority of these conferences is not generally acknoMedged. Their resolu- tions are accepted only by the followers of the principles of modern Judaism, while our conservative co-religionists regard all the norms of the rabbinical code as ever bind- ing and unchangeable. CHAPTER in. » LEGAL VIEW ()F iV[AERIAGK5. §5., In modern law writings, generally, marriage is denomi- nated a CONTRACT — a contract by which man and woman reciprocally engage to live with each other during their joijit lives, and to discharge toward eaclu other the duties imposed by law on the relation of hus*band and wife. "Our law," says Blackstone, (^) "considers marriage in no other light than as a civil contract." It differs, however, from other contracts in this — ^that it can not be rescinded by either party or both at pleasure, though that effect is brought about in either way by certain kinds of miscon- duct. Taking marriage in this civil light, the common law treats adultery as an immoral act, indeed, which offers valid grounds for a divorce, but yet not, in itself,, an indictable crime ; it regards it rather as misconduct, a private injury, which Jnay be condoned. l>y the offended party. The Roman Catholic Church holds liiarriage to be a sacrament, and, as such, indissoluble. Between these two extreme views stands that of the Jewish law. The act of concluding marriage is there (1) Comm. I. 4.'!2. 2.5 26 LEGAL VIEW OF MAREIAGE. certainly also considered as a contract, which requires the consent of both parties and the performance of certain formalities, similar to other contracts, and which, under certain circumstances, can be dissolved. But, inasmuch as marriage concerns a relation which is based on mor- ality and implies the most sacred duties, it is more than a mere civil contract. In such a contract, the mutual duties and rights emanate from the optional agreement of the contracting parties, while thos® who enter upon the state of married life must submit to the reciprocal duties ■which have been imposed by religion and morality. (^) (i) Compare Dr. Z. Frankel's Grundlinien des mosaisch-talmudisclien Eherechtes, page 4 : " Das mos.-talm. Eherecht kann zwar nicht umhin, das Ein/;ehen der Ehe als Y ertrag zu betrachten ; das Schliessen der Ehe berulit auf der freieii Willenseiklaerung ; fehlt von einer Seite der Con- isent, so ist die Ehe ungueltig; die eingegangene Ehe aber, die Ehe, sobald sie sich als Seiche setzt, rueckt aus'dem Gebiete des Vertrages in die hoehere, das Ganze des Menschen umspannende Sphaere der Sittlichkeit, vor der Willkuehr und Einzelwille aufgeht." Similar to this view is that of Kalisch's Commentary on Leviticus, II. volume, p. 247 : "The conclusion of a marriage partook, indeed, of the character of a contract, since it required the full agreement of both pai-ties ; but as soon as the marriage was concluded it was withdrawn from the arbitrary will of both husband and wife, and was removed to the higher sphere of duty and conscience." Compare, also, Leopold Jx)ew's " Eherechtliche Studien," in Ben Chananja, vol. iii., p. 211. Some very distinguished English and American writers on the Mar- riage Law almost coincide with the Jewish conception of the marriage contract, stated above, as may be seen from the following definition in Bishop's Commentaries on the Law of Msttriage and Divorce, I. § 3 : '■ While the contract is merely an executory agreement to marry, it diflFers not essentially from other executory civil contracts. * * « But wlien the contract is executed in what the law regards as a valid marriage, its nature as a contract is merged in the higher nature of the xtalun. And, though the new relation — that is, the status — retains some similitude reminding us of its origin, the corttract does in truth no longer exist, but the parties are governed by the law of husband and wife. In other words, when the parties agreed to be naarried, they undertook only io as.sume the marital hUUhk ; and, on its assumption, the agreement, being fully performed according to its terms, bound them no longer." LEGAL VIEW OF MARRMGE. 27 Adultery is not merely infidelity toward the conjugal partner, but a violation of a divine qrder, a crime which can not be condoned by the offended party ; it invali- dates the very foundation of that marriage, so as to make its continuation absolutely impossible. (^) The higher nature of the marriage contract is also indi- cated by the peculiar and significant term used in the Jewish Law for this contract. It is called KiddusMn — " consecration," from the Hebrew word haddesh — to con- secrate, to set apart as holy and inviolable. The idea connected with this term is, however, quite different from that of sacrament in the Catholic Church, as will be seen from the following definition given b}' the rabbis : " The act of contracting marriage is termed KiddusMn, since by this act the wife is set apart for her husband, and ren- dered inviolable and inapproachable in respect to any other man. (-) (1) Under Jewish jurisdiction the husband Vas compelled by court to divorce his wife who had been found guilly of adultery. See Eben Ha-Ezer, chapter CXV. 7, 8. (2) Talmud Kiddushin, 2&. — Another rabbinical term for the mar- riage contiact is Araxia, or Erassin Ci'DITN), from the Biblical word aras (t;iX), to betroth, to espouse, to bind ia marriage. The state of matrimony, or the legal relation of marriage, is termed in the Rabbin- ical Law Jshuth, from the Hebrew Tsh — the husband. The Biblical language, not having many terms for abstract legal ideas, expresses the relation of marriage more concretely by hnxband and vife, in connec- tion with verbs or adjective pronouns, as, having a husband, taking a wife, his wife, her husband. CHAPTER IV. M O N C) G A M Y A X D P i. Y (x A M Y . a. BIBLICAL AND TALMUDICj^L PERIOD. According to the ideal of marriage as presented in the history of creation and in all ethical i)arts of Scrip- ture, marriage is the union of one maji with only oxk woman. Polygamy, however, actually prevailed among- almost all oriental nations of antiquity, whore it seem a to have been necessitated by climatic and other circum- stances. (1) The Mosaic Law obviously regarded polygamx' as an evil which, like slavery, revenge for bloodshed, and other evils, under the existing circumstances, could not at once be eradicated and in some way was preferable to the greater evil of concubinage. The law, therefore, endured polygamy under some restrictions, without, how- ever, expressly sanctioning it. On the one hand, it provides for cases where a man is married to more than one wife (Exod. xxi. 9 ; Lev. xviii. LS ; Deut. xxi. 15-17), while on^ the other hand, many of its provisions presup- pose monogainy as the rule (Deut. xx. 7; xxiv. 5; xxv. 5-11). Several of its provisions are evidently calculated (i; Comjiiirt' .Monte.si[uieii's Esprit iles LoiV, X\'I- '1-1 . 2S MONOGAMY AND POLYGAMY. 29 to render polygamy very inconvenient and in this way to- prepare for its final abolishment. SuJcli a tendency is evident, especially, in the prohibition as4o the neglect of conjugal duties toward the one wife on acc©unt of another. , secondary ordinances conccriiin.i; incestuous connections. A marriage within the former degrees is absolutely null ujid void from the beginning, so that no divorce is required fnr its dissolution, while a consum- mated marriage within the second class of prohibiteil 33 34 PROHIBITED MARKIAliES. degrees is voidable, that is, merely subject to dissolution, and hence requires a formal act, a bill of divorce. (^) a. BIBLICAL DEGREES. S 10. The Biblical degrees of consanguinity and affinity are contained in Leviticus, chap, xviii., and repeated also in Lev. XX. 11-21, where certain punishments are appointed for particular kinds of incestuous, connections. Besides, some of these degrees are mentioned also in Deut. xxiii. 3, and xxvii. '.^0, 22, 2.'!, in connectioh with other execrable crimes. The first-mentioned chapter is introduced by the words: " Like tlio doings of the land of Egypt wherein you dwelt, shall you not do, and like the doings of the land of Ca- naan, whither I bring you, shall you not do. * * * * (1) ^ra'ITp 'p2 ICC.n Xi, Talm. Kiddushin, p. 676; Maim. Isliuth IV. 12, 14; Eben Ha-Ezer XV. 1 ; XLIV. 6, 7. By the common law of England, martiagea within the prohibited degrees of consanguinity and affinity arei voidable, not void. But by statute of the year 1835 it was provided that all marriages thereafter solemnized, within the prohibited degrees either of consanguinity or affinity, should be void. (Bishop's Marr. S,nd Div., I., § 119.) In most of the American States such marriages are by statute void, in some voidable only. (IlrUL, § .320.) The difference between void and voida- ble, as set forth by Bishop (§ 105), is the following: "A marriage is said to be void when it is good for no leg|il purpose, and its invalidity may be maintained in any proceeding, in any court, between any par- ties, whether in the lifetime or after the death of the supposed husband and wife, and whether the question arises directly or collaterally. 'A marriage is said to be voidable, when the* imperfection can be inquired into only on a proceeding conducted for the purpose of setting it aside,- during the lifetime of both the husband and wife. Until set aside, it is practically valiil ; when set aside, it is rendered void from the begin- ning." CONSANGUINITY AND AFFINITY." 35 None of you shall approach to any that Is near of kin to him, to uncover their nakedness. I am the Lord." (vBrses 2-6.) After enumerating the eases of prohibited connections,, the chapter concludes with the warning : '" Do not defile yourselves with any of these things, for by all this the- nations are defiled which I cast out before you. * * * I am the Lord 3-our God." (verses 24-30.) This exhortation at the beginning and the impressive warning at the conclusion of the chapter sufficiently char- acterize the prohibitions enumerated as not ceremonial ordinances nor political statutes, but divine laws based on morality, and, like all moral precepts^ binding upon air nations and intended to be unalterable in all times. The order in which the prohibited alliances are enu- merated in the Mosaic Law (Lev. xviii.) is the follow- ing : 1. Mother, (v. 7.) 2. Stepmother, (v. 8.) 3. Sister and half-sister, (vs. 9 and IL) 4. Granddaughter (son's or daught€il"'s daughter). (v. 10.) 5. Father's sister, (v. 12.) 6. Mother's sister, (v. 13.) 7. Father's brother's wife. (v. 14.) S. Son's wife. (v. 15.) 9. Brother's wife (except in the case of levirate). (v. 16.) 10. Wife's mother, (v. 17.) 11. Wife's daughter (stepdaughter), (v. 17.) 12. Stepson's daughter, (v. 17.) 13. Stepdaughter's daughter, (v. 17.) 36 PROHIBITED MARRIAGES. 14. Wife's sister (during the life of the former), (v. 18.) In this Ust DAL'GHTKK is not expressly mentioned, but tshe irf a fortiori implied in the prohibition of grand- 'daughter, stepdaughter and daughter-in-law. The prohibitions of these degrees, which, on account ■of the iiaine of the book in which they are set forth, are commonly termed the Levitical Degrees, are so eyi- deiitl)' founded on moral considcx'ations as to find a place in the code of every civilized nation of our time. (^) The Talmud finds these biblical prohibitions to be as >manifestly resting on common sense and morality as tlie prohibitions of murder and theft. {^) Philo (de speeialibus Legibus, p. 7T8), Saadja (Emu- noth ve-Deoth III.), Maimonides (More Nebuchim iii. 49), and modern scholars assigned different reasons for these prohibitions. The most plausible of these reasons are, that the toleration of such connections between near rela- tives would impair the quiet and concord of families and endanger female chastity in the domestic circle. Hereto •must, in regard to consanguinitj^, still be added the phy- siological reason of degeneration, as marriages between (1) The English law, being in this respect mostly based on the Ca- nonical law, adds to these Levitical Degrees several extensions, which partly go even beyond those made by the rabbis, as will be seen fur- ther on. The law of other Protestant countries, however, as the Prus- sian code, though in general adopting the proliibition of confanguinity and affinity, disregards the Levitical Degrees in this, that it neither interdicts alliances with the aunt nor with the brother's widow. See Preuss-Landrecht, Th. ii., Tit. 1, § 3. (2) See Talmud Yoma, p. 676. Maimonides seems to have had a dif- ferent \crsion o£ that j'assage, since he in his Sh'mone Perakim, chap- ter vi., maintains tliat the Talmud classifies the prohibited degrees among those positive laws which are not conceivable by human under- standing. (O.NSAXGUrXITY AM> AFKIXITY. ;>, ^ persons closely allied in blood are apt to produce an off- spring feeble in body and tending to insanity in mind. (^) h. TALMUDICAL EXTENSION'S. § 11- By the authority of the Sopherim, the Talmudic la^- partly extended the Biblical prohibitions to the ascend- ing and descending lines of whatever degree, partly went one degree above the Biblical, parti}'- added a new homo- geneous degree. (- ) {a) The first-mentioned extensions are jn general of very slight practical consequence, on account of the great disparity of years between the parties. The extensions are made in the following cases : (1) See Bishop's Marr. and Div., i., 4 313. (2) Talm. Yebamoth, p. 21: Maimonides Ishutb I- 6; Kben Ha-Ezer XV. The guiding principle of the rabbinical Law was to extend the prohibition to the whole line wherever the Mosaic law refers to lineal ascendants or descendants, and also, where a mistake miglit easily be made on account of a common appellation. Thijs, mother's mother'^ mother, and so upward, is forbidden, because the mother is interdicted in the Mosaic Law ; while the extension to the father's mother, thougli not mentioned in the Mosaic Law, was made because the appellation GRANDMOTHER is used without distinction for both the mother's and father's mother. It is hardly necessary to remark, that in making these . extensions ad wfinitum the rabbis had merely theoeetical conse- quences in view, just as the "Table of Kindred and Affinity" of the Anglican Church, interdicting thirty alliances to men, and the same number to women, opens with : "A man may not marry his — 1, grand- mother; 2, grandfather's wife; 3, wife's grandmother." Of more practical purport are the extensions going only one degree above the Biblical prohibitions in the lateral liaies. They are partly deduced from them by analogy, partly intendejl to be a preventive against transgressing the express interdictions of tlie ^to.saic Law . ;i'^ PROHIBITET) MARRIAGES^. .Vs tile mother is forbidden, so is the grandmother and the great-grandmother, and so upward; As the stepmother is forbidden, so is also the father's or jnother's, or the paternal grandfather's stepmother, and so upward. As the wife's mother is forbidden, so her grandmother, and so upward. As the wife's daughter (stepdaughter) is forbidden, so her granddaughter, and so downward. As the son's wife is forbidden, so the grandson's wife, ^md so downward. As the granddaughter, so the son's or the daughter's .granddaughter, and so downward. (b.) Of the extensions going only one degree above the Biblical prohibitions in the lateral lines, Ave men- tion the following : As the father's and mother's sisteps are forbidden, so are the grandfather's and grandmother's sisters. As the father's brother's wife is forbidden, so is also the paternal grandfather's brother's yife. (o.) One new degree homogeneous to the Biblical was added in the following case : While the Mosaic Law expressly forbids only the ]^vther's brother's wife, the Talmudic Law n,dds also the i\roTHER's brother's wife, and besides, tlie father's uterine brjother's wife. According to the opinion of some authorities, it is ajraiust decency, though not against °t-he law, for a man If) marry the stepmother of his deceased Avife. (^) (I) Jerns. Talm. Ycbamoth ii. 4; Kben Ila-Ezer XV. 24. — The Ro- man law proliibits such a marriaue i- greal-.L.'raiids(iii's wife. 11. Fatlier's wife (step-mothor). 12. Father's brother's wife. ].'5. Sun's wife. 14. Brother's wife (except in the case of levirate). 41 CHAPTER VI. R. J'KOHIBITIONS IN CONSIDERATION OF CHASTITY. Besides the impediments of consanguinity and ajB&nity, *he Jewish Law contemplates several impediments which evidently are based on considerations of cliastity. I. THE DIVORCED WIFE. §13. According to the Mosaic Law, a man is not permitted to remarry his divorced wife who had lAarried a second time and become a widow or been divorced from her sec- ond huisband. (^) Neither, according to the Rabbinical Law, is a man per- mitted to remarry his former wife whom he divorced on the express ground of her bad reputation or on account of her barrenness. (-) ir. THE ADULTERERS. § 14. Pie who had committed or was under strong suspicion (1) Bent. xxiv. 4 ; compare, also, .Jeremiah iii. 1. According to Nach- liANiDES, this law was intended to prevent the immoral practice of ex- changing wives, which practice prevailed among arfcient nations. (2) Mishna Gittin I\'. 7, S ; jNIaimonidos Gerushin X. 12, 13; Eben Ha-lvzcr X. 3. 4-2 im COJSSIDERATION OF CHASTITY. 4o ) : "Si ispadoni mulier nups(>rit, distinguendum arbitror, castniiljs fuerit nee ne, nt in castrato dicas, dotem non esse ; in eo qui castratus non est, ijuia est matrimonium, et dos, et dotis actio est." ■" (fi) Si-c Ebon Ila-Ezer V. 10. CHAPTER VTT. «'. PROHIBITIONS ox ACCOUNT OF KELKItOUS AND OTHER CONSIDERATIONS. i. J.XTERM. I HlilA OK. ■a. BIBLICAL AXI) TALilUTHCAL UKOUND. § ]S. The Mosaic Law prohibits intermarrtage with certain Canaanitish nations, seven in Jiumbcr : " Thou shalt not make marriages with them, thy daughter thou shalt not give unto his son, and his daughter slif^lt thou not take unto thy son." As a motive for this prohibition is added : " For they will turn away thy son from following me, to serve other gods." (Deut. vii. 3, 4.) Actuated by this motive, and at the same time, by the desire to preserve the purity of the Jewish race, Ezra and Nehemiah extended the Mosaic prohibition of intermar- riage so as to include all the pagan nations of the coun- try, and with great rigor compelled those'who liad cjitered such marriages to separate from their heathenish wives. {Ezra ix. 1, 2 ; x. 10, 11 ; Nehemiah x. 31 ; xiii. 23-25.) In the spirit of Ezra's ordinance, later religious authori- ties in the time of the Maccabeans and in the time of the 45 4b PROHIBITED MARBIAGES. wars against the Romans, interdicted matrimonial con- nections between Israelites and Gentiles, (^) and this, prohibition is the established law of the Talmud and the Rabbinical Code. (^) A difference of opinion exists only as to whether the prohibition of intermarriage with any of the other na- tions besides those seven expressly mentioned in the law (Deut. vii. 3) is to be regarded as Mosaic or only Rabbin- ical. (3) After having embraced the Jewish religion. Gentiles are perfectly admitted to intermarriage. (*) No special provision is made in the Rabbinical Law concerning intermarriage with Christians. These, though in other respects not regaxded as heathe-ns, (^j were actu- ally included in the general prohibition of intermarriage with Gentiles. On the other hand, the Christian empe- rors and the Canonical Law strictly interdicted all mar- riages between Christians and Jews. (^) (1) Talm. Aboda Zara 31b. (2) Maim. Issure Biah XII. 1 ; Eben Ha-Ezer XVI. 1. (•") Talm. Kiddusliin 686. The first opinion is ascribed to K. Simon BEN YocHAi, and the second to the other rabbis. Maim. Iss. B. XII. i.,. decides, according to R. Simon, but R. Mose of Goucy, in Sriiaf/ Laviit, CXII. and Tur Eb. Ha-Ezer XVI. decide differeatly. (4) Maim. Iss., B. XII. 22, 25 ; Eben Ha-Ezer IV. 9, JO. (5) Talm. Chulin V,h: p V"J IS? yiX7 -"^"In^r C'l::, "the Gentiles' among whom -we are living now are no heathens." See, also. Rabbi Isaac ben Sheeheth's (fourteenth century) Responses, No. 11!) : a*1iJi;~ C'DffiW n'13 C'Nip: ; compare, however. Maim. Maachaloth .Vssuroth XL 7. (0) Thus, the Emperor Constantius prohibited the intermarriage between Jews and Christians under penalty of death. The prohibi- tion was renewed by the later emperors. See Qod. Theod. Liber III. Tit. VII. Lex II. ; Cod. Just. Liber I. Tit. IX. Lex \ll. TNTERMARRIAGE. 47 h. THE QUESTION OF TXTRRAr ARRIAGE IN MCD'ERX TIMES. § 19. In the year 1807 Napoleon I. conyoned a Jewish Synod (Sanhedrin) in tlie city of Paris, and among other ques- tions to be answered was also that as 'to whether Jewn were permitted to intermarry with Christians. The answer was : " The great Sanhedrin daclares that mar- riage between Israelites and Christians, contracted accord- ing to the laws of the ' Code Civil,' are, from a civil stand- point, binding and valid, and, although such marriages can not be invested with the religious forms, they shall not entail any disciplinary punishment (anathema)." {^) This declaration obviously retains the'Talmudic princi- ple that a marriage between Jews and Gentiles can not be invested with the sanction of religion. It does not say that intermarriages between Jews and Christians are permitted, but only that such a marriito;o, if contracted according to the civil law, is civilly binding; which, how- ever, was not at all the question to be .answered bj' the Sanhedrin. The remission of the disciplinary punish- ment of oherem (anathema) was rather illusive, since this disciplinary punishment had at that time already entirely fallen into disuse in France. The Rabbinical Conference held at Braunschweig, Ger- many, in the year 1844, although inteftiding merely to indorse the declaration of the above-mentioned Sanhe- (i) The original reads as follows: "Le grand Sanhedrin declare, en outre, que les manages entre Israelites et chriStiens, contractus con- iorm^ment aux lois du Code Civil, sont obligatoires et valables civile- ment, et que, bien qu'ils ne soient pas susceptiblfes d'etre revStus des formes religieuses, ils n'entraineront ancun anathfeme." Ki^cueil de» lois, etc., par A. E. Halphen, Paris, 1851, p. 25. 4S PROHIBITED MARRIAGES. ilriu, really went far beyond that declaration by resolv- ing "that the intermarriage of Jews arid Christians, and, in general, the intermarriage of Jews with adherents of •any of the monotheistic religions, is not forbidden, pro- vided that the parents are permitted "by the law of the State to bring up the offspring of sucll marriage in the Jewish faith." (i) This decision of the Braunschweig Rabbinical Confer- ence, Avhich entirely abandoned the Taimudic standpoint, has been strongly criticized not onlyj as was to be ex- pected, by rabbis belonging to the conservative school, but even by some of the most pronounced advocates of ireformed Judaism. (^) Even the author of that resolution, Kabbi Dr. LuD- wiG Philippson, has since greatly modified his views concerning this subject, as may be seen from the follow- ing quotation from one of his later works : " Religion must pronounce against mixed marriages. It has ^leen said that such marriages will contribtitc toward the pro- motion of tolerance and toward bringing the different religions nearer to each other. But, on the other hUnd, it must be con- ceded that they contribute as well toward the weakening of true religiousness and sincerity in matters of faith. It is cer- tainly our duty to widen the sway of tolerance so that it may rule over all classes and individuals, however they may differ in regard to creed and religious life. But this duty is not done l)v merely leveling the religious ground in order to gain a little more space for the dominion of tolerance. (1) Protokolle dor RabliinervGrsammlung in BrauiiBchweig, p. 73. One of the membiTH of that conference marte tlie motion to add : ■■'And the rabbi iw permitted to solemnize such marriages," bnt this juotion ViUS not carried. (-) Amotion made in the Augsburg i^ynii indorse the resolution iif the Braunschweig Conference was tal)led. See N^erhandlungen der Zweiten isr. Synode, pp. 109, 110. INTERMAKRIAGE 49 " Therefore, little as any true friend of religion and humanity could wish that religion should stand between those who sin- cerely love and cling to each other, deeply as it naust pain him ^to grieve such persons, still, from the standpoint of religion and of a sincere religious life, he can not but disapprove of mixed marriages." (i) The position of modern Judaism, in general, regarding the question of intermarriage is simijar to that taken by Protestantism or Roman Catholicis«i, both of which discountenance mixed marriages on purely religious grounds. The principal reasons against such intermarriages are, that peace and harmony can not be .expected to reign supreme in a marriage in which the parties belong to religions so widely diverging from eaoh other in regard to certain dogmas. Experience, besides, demonstrates that it is only in the rarest cases of such mixed mar- riages that domestic life can be condu'cted and children brought up in the spirit of our religion. Judaism being the religion of the minority, as a matter of self-preserva- tion is, therefore, also opposed to mixedl marriages, which, if prevalent, w^ould weaken its influence and endanger its very existence. tf. FURTHElt OPINIONS ON THE SUBJECT OF INTICKMAK- RIAGE. §20. Considering tlie great importance o*f the question of intermarriage, w'e shall, in addition to the above, quote here the official opinions of two celebratgd banner-bearers (1) Israelitisohe Keligionslehre (Leipzig, ISfw), vol. iii., p, 250. 50 PROHIBITED MAKKIAGES. of modern Judaism, the late rabbis of Berlin, Dr. Geiger and Dr. Ai-p.. Both of them belonged to the committee appointed by the first Jewish Synod 'held at Leipzig in 1869, to report, among other question's, on that concern- ins marriage between Jews and Christians. Geiger, after having demonstrated the difference between the moral standing of the Gentiles of ancient times and that of the Christians of our days, comes to ithe conclusion : "The marriage between a Jew and a Christian, when con- cluded in a legal manner (by civil authorities only), is by no means without moral worth, and reli'gion, even from its standpoint, can not deny the validity of such a marriage. " It is, however, a different question which faces us when we ask whenier mixed marriages ought to be favored and encour- aged by religion itself. On the one hand, it appears that the fraternity of the human race, which religion so emphatically proclaims as its highest ideal and hope, will be promoted by intermarriages. But, on the other hand, it must be conceded that the divergence of spiritual life resujting from the differ- ence of creed is apt to disturb conjugal peace and mar the sincere union of hearts. Besides this, the apprehension of a mutually detrimental influence in regard to the religious views of either party can not well be suppressed. Religion, then, especially that religion which is not the prevailing one, and which, because of being in the minority, is always at some disadvantage, can not be fairly blamed if she hesitates to lend a helping hand to further such marriagesi, if she prefers, under such circumstances, rather to make the entrance into her folds less difficult to the outside party than otherwise, in cases of proselyting, her duty would prompt her." (i) Dr. AuB, in his report on the question before us, says : (1) Beferate ueber die der ersten isr. Synode ?u Leipzig ueberreichten Antraege, pp. 187, 188. INTERMARKIAGE. 51 "According to somo Biblical and even some rabbinical Utterances, the marriage between Jews and Christians might be declared as sanctioned. vSuch intermarriages already- occurred as early as the Middle Ages, until interdicted by the church. The moral possibility of such a marriage is con- ceivable only when both parties to the marriage disregard all positive doctrines and laws of their respective creeds and simply adhere to a natural religion. But as long as either of them clings to the doctrines of his original CT.eed— one observ- ing the Day of Atonement and the other celebrating Good Friday in order to obtain remission of sins-"— the two are not ONE, not of one mind. Mixed marriages are, as a rule, far removed from the ideal of marriage. At all events, the desire to have such a marriage sanctioned by a clergyman can, from the nature of the case, not be a strong and sincere one. Either both parties are indifferent to the claims of i^ligion, or at least one of them is so — why, then, ask the assistance of a minis- ter? Or both still adhere to their respective faiths — how, then, can the one party be satisfied with 'the forms of the other's faith? In such instances a cordial address could as well be delivered by any layman. This will, at all events, satisfy the Jewish party, whose faith recognizes no ordained priests. "The education of the children that may be born of such wedlock is likewise a strong consideration against mixed mar- riages. "Wherever the State permits such mixed marriages, they are legally and morally binding when perfarmed by the civil authorities. The religious form or the church blessing, which is only a ceremony, may and should be a matter of indiffer- ence to a bridal pair belonging to different faiths. In Judaism, which has no priests and no sacramental marriage, the express approbation of the rabbi is, in such cases, of no use. He can and will tacitly and willingly accept the validity of the mixed marriage actually concluded according to the civil law." (^) The late Rev. Dr. D. Einhoen expressed himself still more emphatically concerning the question before ns. _^ _„ s . (1) Eeferate ueber die der ersten israel. Synodeueberreichten Antraege, p. 193. 52 rHOIIIBITED :\IAERIAGESi. In a coiitrovers}^ regarding mixed marriages he held that " such marriages are to he strictly prohibited even from the standpoint of Reformed Jjidaism," and he added : " To lend a hai^d to the sanctification of mixed marriage iy, according to my firm conviction, to fuknish A NAIL TO THE COFFIN OF THE SMALL JeWISH RACE, WITH JTS .SrnLIME MISSION." (1) CONCLUSION. ' § '2J. In conclusion, the latest enunciatioir concerning this subject may find here a proi^er place. It is that of the I-tev, Dr. I. M. Wise, in a public lecture on "Intermar- riage." ("-) After having reviewed the historical side of the ques- tion, he continues : " This question iu regard to intermarriage was raised by Xapoleon I., to the Sanhedrin, which he convoked, and was (1) See the Jewish Tiinea, Vol. I., Nos. 45 and 48. — For the sake of impartiality, we shall state here that a few radical rabbis in Germany advocated mixed marriages and did not hesitate to solemnize them in the name of religion. Of those rabbis especial mention may be made of the late Dr. S. Holdheim, who tried to defend his views in a pam- phlet entitled "Gemischte Ehen zwischen Juden und Christen. " (BerKn, 1850.) Here in this country, a similar position on this question is taken by the Eev. Dr. S. Hirsoh, who defends the permittance of solemniz- ing intermarriages under certain conditions, though he freely adiaits that he would not recommend such mixed martiagos, as in nine cases out of ten they prove failures. See his article on this subject in the Ji'iiviith Times, I., Nos. 27-36, and Einhorn's reply in the articles quoted above. See, also, the articles " Zur Mischehenfrage," in Die Deborah XXIV., Nos. 10-22, in which some of the American rabbis expressed their different views on both sides of the question. (2) Published in the American Israelite of the 2l8t of December, 1S.S3. IXTKEMARKIAGE. • i.> raised again and again in various rabbinical rouferences, and the decisions given were always unsatisfactory in principle. Moses forbade intermarriage with certain heathens to prevent the falling back of children of Israel to heathenism. Pro- ceeding upon this principle, the rabbis of old applied this hw to all heathens in any place. But those anodern Sanhedrin and conferences maintain the Islam is no heathenism, Chris- tianity is no heathenism ; and yet they negatived the question of intermarriage as mere matter of discipline and utility, that we few Israelites be not lost among the vast multitudes of Christians- and Mohammedans. Evidently those gentlemen have taken very low ground, non-justifiable in law. " They might have taken a much higher and more holding; ground. The peace, happiness and prosperity of the family, and the performance of its sacred duties to God and man, ii^- the higher ground which they might have taken to much bet- ter advantage. As long as the orthodox Christian looks upon the Jew as a damned and doomed soul, of fess worth here and worthless hereafter, peace and good will, mutual respect, con- fidence and genuine affection can hardly be expected to sway a durable scepter in the family, the members of which look upon one another with such degrading and damaging preju- dices. The offspring of such families are usually the worst sufferers, and the duties of the family, upoli which are based the morals, ethics, the weal of society and the country, natu- rally remain unfulfilled, or but partially fulfilled. ^lutual respect is the first condition in a family, which is not well possible in connection with such prejudices. Again, as long as desertions, abandonments and divorces, adultery and con- cubinage are of daily occurrence, also, in "the best classes of society, the Jew and the Jewesses had better wait before they marry out of the pale till the morals of society be improved in that particular respect. "But then it might be urged that there ,§,re thousands and tens of thousands of individuals in this country who profess no religion at all; hence they are free of those prejudices: Why should any rabbi refuse to solemnize i*n behalf of Juda- ism the marriage of such irreligious parties, wliose parents happened to be Jewish on the one side and Christian on tlie other, if no existing law restrains him? And we have' seen that 54 PROHIBITED MAEEIAGES. 110 such law rightfully exists. To this might be replied : Be- xause the parties are irreligious ; or because such solemniza- tion would be a mere mockery to persons who profess no religion ; and no rabbi will abuse the authority vested in him to perform the task of a lower magistrate ; no rabbi has a right to act the part of an ordinary stage actor— to go through a performance and pronounce formulas and benedictions to parties who believe in neither, and can not consider them- selves benefited by either, as the next justice of the peace can declare them man and wife without any performance or 'benediction. " If the rabbi believes, as he ought to, that matrimony is a sacred institution, sanctified by the law of the covenant, by the expressed will of the Maker of man, in whose name and hy the authority of ^vlaose revealed law h^ unites the couple liefore him in the holy covenant of matrimony, and invokes upon them God's blessing; he will not make a comedian of himself to do and say all that for persons who do not believe a word about it. If any one does not believe in the Living ijod of Israel and the Sinaic revelation, he has no reason whatever to believe in the sanctity of the piarriage compact as being instituted by the law of God, and consequently has no cause to be married by a rabbi, who acts by that authority only. This is certainly higher ground, which it might be dif- ficult to controA^ert." (') 2. LEVIRATJJ AXn CHALITXA. a. lUBLICAL AND TALMUDI(_;.\I. PRECEPT. §22. The widow whose husband had died childless, leaving, liowever, a brother, is not permitted to jnarry a stranger, unless tli(^ surA'ivins brother declares that he is not wil- (1) The lecUu-e concludes with the suggestion that the question of intermarriage sliall be deciilcil, in connection witli tlie proselyte ques- ticin, bv a .Jewish Svnod. LEVIKATE AND CHALITZA, 55 ling to marry her, and submits to tlie pres'cribed formality termed Chalitza. (Deut. xxv. 4-13.) From Genesis xxxviii. 8, where Anan is called upon to marry his brother Er's widow, it is evident that already in the patriarchal period it was an esta'blished custom that in the case of a man having died Artthout children his surviving brother was in duty bound to marry the widow. (1) The Mosaic Gode retained this custom, so that the general prohibition of marryiag the brother's wife (Lev. xviii. 16) was set aside in c^se that brother liad died without descendants, in whi.ch case it was regarded as a duty incumbent on one of the surviving brothers to marrj' the widow in order to detain the name and family property of the deceased. Such a marriage is termed Yibbum, from the Hebrew yabam, " brother-in- law." It is also termed Levirate, from the Latin levir, which has the same meaning as yabam. The purpose of the levirate marriage Avas obviously to avert the extinc- tion of the name of liim who died childless, "that his name be not put out of Israel." Besides, it stood in con- nection with the ancient agrarian law in Israel, which tended to retain all property intact Avifliin each tribe and family. The brother-in-law, in marrying the widow, 1)ecame the sole heir of her deceased husband's estate, which otherwise would have to be divided among all his brothers, who in this case were the legal lieirs. ('-) (]} The same custom has been found to exist among various oriental nations, ancient and modern. See Benaky, Pe H-ebraeorum Leviratu (BerUn, 1835), p. 31 ss, and Redslob, Die Levirate- Elie, bei den He- brfeern (Leipzig, 1836), p. 7; compare, also, T. E. Espin, in Spealier's Comment, on the Pentateuch, p. 888. (2) The connection of the levirate witli the ajiiiiiiuii law jm also indi- 56 PROHIBITED MAKRIAGES. In retaining this ancient custom, the Mosaic Law modified the former strictness thereof by permitting escape from that obligation, which under certain circum- stances might be onerous and even repugnant. Tho surviving brother could refuse to marry that widow, but had to submit to the ceremony of Chulitsa, which was of a somewhat stigmatizing character. The ceremony described in Deut. xxv. 7-10, consisted in this, that after the surviving brother had declared before the court his unwillingness to marry the widow, she was directed to loose his shoe from off his foot, spitting before his face and saying : " So shall it be done unto that man that will not build up his brother's house." (^j This formality having been performed, the widow wai+ at liberty to marry a stranger. The law concerning the levirate marriage and the act of Ohalitza is very minutely elaborated in the Talmud and in the Rabbinical Codes. (^) A divergence of opinion is expressed in the Talmud, as well as among the post-Talmudic authorities, as to cated in the Talmud Yebamoth, 176; X;)2n-1 X7n n'?n:D Dir. It must also be stated here that, according to Talmudic interpretation {ihid. p. 24o), the provision of the levirate law "that the first-born which she beareth shall succeed to the name of the deceased brother" (Deut. xxv. 6) is not to be taken literally as if the first child born in that marriage was to be named after its deceased upcle, but rather figura- tively that the name of the deceased shall remain on the inheritance which passes to the surviving brother who accepts the levirate. (1) The formality of loosing the shoe was prbbably a symbolic ex- pression of taking from the unwilling brother all right over the wife and property of the deceased, while that of spitting before his face was intended to aggravate the disgrace conceived to attach to his con- duct. (2) Talm. Yebamoth; Maimon. H. Yibbum u-Chalitza; Eben Ihi- Ezer, chapters 156-176. LEVIEATE AND CIIALITZA. 57 whether Yibbum or Ohalitsa is to bo preferred, that in, whether it is better for the surviving .brother to fulfill the duty of levirate marriage or to submit to the pun, ishment for non-fulfillment ; because it was considered doubtful whether he who marries his brother's widow with other than the purest motives is not actually com- mitting incest. (^) The levirate marriage having been found in many cases very onerous and, especially since the abolishment of polygamy, often impracticable and impossible, it fell more and more into general disuse, so that the ceremony of Ohalitsa took its place, by which the widow received the permission of marrying a stranger. To prevent the brother-in-law from exacting conditions from the widow who wished to be liberated from the restriction to her new marriage, it bet3ame customary that at the wedding of a young couple-, the brothers of the bridegroom were induced to sign a document (termed Sh'iar Chalitsa) declaring that, if circumstances should require it, they will execute the ceremony of CTialitzce without any claim of remuneration. J). MODERN VIEWS AND RESOLUTIONS OF RABBINICAL CON- FERENCES. §23. Modern Judaism, in general, strongly objects to the whole formality of Chalitza. The levirate marriage hav- ing been entirely abandoned, this ceremony, which is so decidedly contrary to modern customs and views, has- (1) Yebamoth .')9/>; Bechoroth 13o; Eben Ha-Ezer 165. 58 PROHIBITED MARBIAGES, been found to be superfluous and meaningless. For, why should the surviving brother arid the unfortunate widow go through a disgracing formality to establish the non-fulfillment of a marriage which they are no more permitted to enter? The question of abolishing the whole formality has been discussed in different essays (i) and in several rabbinical conferences. The Conference of American rabbis, held in Philadelphia (1869) unani- mously passed the following resolution : "The precept of levirate marriage, and eventually of Chalitza, has lost to us all meaning, import and binding force." (2) A resolution to the same effect was passed after an ■elaborate discussion, also, by the Jewish Synod held at Augsburg (1871). It reads as follows : "The Biblical precept concerning the Chalitza has lost its importance, since the circumstances which occasioned the levirate marriage and the Chalitza no longer exist, and the idea underlying this whole precept has become foreign to our religious and social views. "The non-performance of the Chalitza is no impediment to the widow's remarriage " For the sake of libertj' of conscience, however, no rabbi will refuse, on request of the parties, to conduct the act of Chalitza in a proper form." (^) (1) Of the numerous essays and articles written on this subject special mention may be made of those of Babbi M. Gutmann, in Geigbr's Wis- senschaftliche Zeitschrift fuer jued. Theologie, vol. IV., pp. 61-87, and in Stein's Volkslehrer, 1854, Nos. 53 and 57 ; 1'855, No. 62. See, also, Babbi Isaac M. Wise's article in The American Israelite, 1855, Nob. 38 and 39, and Geiger's article in Juedische Zeitschrift, 1862, p. 35 s^. (2) Protokolle der Rabbiner-Conferenz gehalten zu Philadelphia, p. 39., (3) Verhandlungfii der zweiten israelitischen Synode zu Augsburg, pp. 138-155. THE AAEONITES. 59 3. PROHIBITIONS ESPECIALLY FOR 4ARONITES. • § 24. There are, in addition, some religious impediments to marriage which affected only the PEiEsitY tribe — the descendants of Aaron. According to Leviticus xxi. 6, 7, 14, the priests were to maintain a peculiarly high standard of legal puritj' in their family relations, because it was their office to offer sacrifices to the Lord. Hence a common priest was not permitted to marrj'^ a prostitute, a profane (i. e., one descended from the illegitimate marriage of a priest) nor a divorced woman ; the high-priest was, besides, not to marry a widow. Though the priestly office was abolished with the de- struction of the temple, the Rabbinical Law retained those prohibitions concerning the descendants of the priestly tribe (Aaronites or Cohanim) and implied in those prohibitions, also, that of marrying a proselyte woman. (^) In modern times, however, these prohibitions con- cerning the Aaronites are not generally regarded, and the Rabbinical Conference held at Philadelphia (1869) unanimously adopted the following resolution : " The priestly marriage laws, which are predicated upon the sanctity of the Aaronites, have lost all significance, and are no longer to be respected, since the destruction of the temple and the cessation of the old sacrificial worship de- stroyed the basis upon which the exclusive position of the Aaronitewas established." (^) (1) Maim. I.sh. B. XVII. ; Ebeii Ila-Kzer YI. X-) Protokolle der liabbiner-Conferenz abgehalten zu Pliiladelphia, 60 PKOHIBITED MAEEIAGlJy. A motion to tlie same effect was offered by Dr. Geigkk at the Leipzig Synod, (i) It was referred to a committee for report, but no action was taken. At the second Synod in Augsburg the proliibition of an .Varonite's marrying a proselyte was indirectly removed by the following resolution, which, though having u gen- eral character, refers to this special ease : " Whereas, The ordinances of the Christian Church and the laws of modern States are, in regard to the prohibited degrees of affinity, almost still more rigorous than the Jewish Marital Law ; and whereas, they regard marriage as a nioral union, and i-onsequently, at its conclusion, forbid everything which is In the least against strict morality ; " Therefore, the Jewish Synod declares : " That the Talmudical Marriage Law in reference to jn-ose- lytes of heathen origin does not apply t0"such joersons as are converted to Judaism from Christianity." (-) (1) Verhandlungen der ersten isr. Synode zu Leipzig, 1869, p. 260. (■i) Verhandlungen der zweiten iuedischen Sypode, p. 156. CHAPTER A^TIT. TEIMPORAUY I^n^EDI.MEXTS. There are still some impediments which exist for a limited time onty, after Avhicli thcj' cease of them- seh'es. I. PREA^ENTIVE AGAINST UNCERTAINTY Ot PATERNITY. S 25. A widow, within ninet}' days after her husband's death, and also a divorced \\ onian, within the same period from the day of having received the document of divorce, are prohibited from contracting a )iew marriage. {^) The reason of this rabbinical j^rohibition is to prevent an uncertainty of paternity in regard to the first child born in the second marriage. The lapse -qf ninety days is, however^ required even in such cases nvhere the wife can not well be jjresumed to have been pregnant at the time of her husband's death or her divorce. ('-) (1) Ycbamoth, p. 41 ; jMaim. H. fierushin XI. IS; Eben Ha-Ezei- XIII. ] . (2) The ancient Roman Law prohibited a widow to remarry before tho lapse of ten months. The reason was there partly the apprehension ol' turhatio sanguinis, partly the regard of the respect d«e to the memory of the deceased. The French Law coincides with tlie ancient Koraan Law. The Prussian Law requires the lapse of a Vear for a widow. Gl 62 TEMPORARY IMPEDIME^WS. II. PREGNANCY AND THE SUCKLING CHILD. §26. A widow or a divorced woman, being in a state of pregnancy, is not permitted to remarry until after her delivery. If the widow or the divorced woman has a suckling child, she is not to marry before twenty-four months after that child's birth, (i) The prohibition in both cases was prompted by a regard for the child's welfare. In thg second case, espe- cially, the prohibition was predicated upon the opinion, generally prevalent in ancient time^, that it is neces- sary for a new-born child to be nursed at the mother's breast for a period of at least twenty-tfour months, which period might become shortened by the mother's new marriage. The views of modern times differ also in this respect from those of former days, and, as circumstances often make it desirable for the widow to Temarry before the lapse of two years, the Jewish Synod of Augsburg modi- fied the law by the following resolution : " A widow having a child from her former marriage need not wait longer than one year with her new marriage. Where particular circumstances in the interest of the widow or of the Here in this country there is, in general, no law to regulate the time during which a woman must remain a widow before she marries a sec- ond time. But decency requires that no marri&ge shall take place till at least the end of one year. See Bouvieh, Institutes I. 291, and Law Dictionary, article "Widowhood." (1) Yebamoth, p, 42 ; Maim. Gerushiu XI. 25 ; Eben Ha-Ezer XIII. 3,11. MOURNING. — 0B8TKUCTIVE DAYS. ii'r\ child render the postponement of the new marriage inadvisa- ble, it may take place even before that period." (i) III. MOURNING. §27. According to the ritual law, no marriage is to be entered upon within the first thirty days of mourning for the death of a near relative. (^) A widower is not to remarry before the lapse of three festivals after the death of his wife. (") The reason assigned to the latter restriction is, that it was regarded improper for the husband to live with a second wife while his heart is still filled Avith the memory of another one. Under some circumstances, however, 'this restriction could be dispensed with, especially wh«n the widower has little children who need the care of a second mother. (*) IV, OBSTRUCTIVE DAYS. § 28. On Sabbath and festivals no marriage is to be con- tracted, as such an act falls under the category of legal transactions, which, in general, are not -permitted to be performed on consecrated days. (■^) (1) Verhandlungen der zweiten i->ynode, pp. 71-74. (2) Yore Dea, chapter 392, § 1. (3) Ibid., § 2. (*) Ibid., gloss. (5) Talm. Betza, pp. 36, 37 ; Eben Ha-Ezer LXIV. 5 ; compare, also. Orach Chayim, chapter 339, i 4 and chapter 524, § i.» ■64 TEMPORAKY IMPEDIMEN'ts. The marriage contract, however, although performed on such days, is perfectly valid, if good in other respects. (^) ' . In former times it was also customary not to cele- brate marriages on certain days corhmemorating great national calamities in our history, especially during the days between the first and the ninth of the month of Ah, commemorating the destruction of the Temple. (-) Some over-zealous authorities extended the time, mak- ing it from the 17th day of Tamuz to Jhe Ninth of Ah. {^\ For some unknown reasons, also, the days between Pasach and Shahuoth, with the exception of some single days, -were added. ('') A popular superstition, consequently, looked upon those days as ominous for marriage ; hence the custom of abstaining from celebrating mar- riage on such days is still kept up by many, though those days have otherwise ceased to be a time of mourn- ing. (5) (1) Orach Cliayim, ihiil.; see K. IMos. IsserJ-es' gloss to tliat para- graph. (2) Orach Chayim, chapter 591, § 2. (3) See R. Mos. Isserleb' gloss to that paragrapli. (4) Orach Chayim, chapter 493. (5) Kabbi Dr. Landsbebger, in an elaborate and very interesting .article in Geigeb's Juedische Zeilschri/t fuer Wissenschaft und Leben VII. pp. 81-96, proves tlie custom of abstaining from celebrating mar- Tiage between Pasach and Shahuoth, to be of .heathen origin, as also among the ancient Romans the popular superstition prevailed that nuptials during the month of May portended ill luck to the young couple. Compare Ovid. Fast., lib. V. 487-490. From the Romans that superstition was transplanted to France, where it still prevailed in the seventeenth century. (Bayle Pensees diverses, § 100.) Walter Scott, in his third letter on Demonology and AVitchcraft, p. 104, reports .that he found the superstition also in Scotland. OBSTRUCTIVE DAYS. ()5 The Jewish Synod of Augsburg, on motion, passed the following declaration concerning this unwarranted restriction : " The custom of abstaining from performing the marriage ceremonies on certain days regarded as ominous, especially in the time between Pasach and Shahuoth, besides within the three weeks preceding the Ninth of Ah^ with the exception of the three weeks in which Tiaha b'Ab falls, is»entirely without foundation ; it contributes toward promoting superstition, and corresponds with no religious sentiment. The Synod, therefore, regards this restriction as abolished." (') h) Yerhandluiigen, etc., pp. 76-7'J. CHAPTER IX. QUALIFICATIONS TO CONTRACT MAERIAGE. There are certain requirements in the contracting parties which are so essential that theit non-fulfillnient, under certain circumstances, would irtvalidate the mar- riage, though formally concluded. Tljese requirements are : 1. Consent of the parties. 2. Mental capacity. 3. The legal age. /. CONSENT. a. MUTUAL CONSENT. §29. The contract of marriage, like every other contract, requires the mutual consent of the parties. Without such a consent the marriage is void, =though the pre- scribed forms have been complied with. {^) A consent obtained by poece is no consent. Some authorities, however, make a difference between these two cases, viz., where the female or the male party had been forced to the marriage contract. In the former case the marriage is void ; in the secdnd it is regarded (1) Maim. H. Ishuth IV. 1 ; Eben Ha-Ezer, XLII. 1. 66 CONSENT. 67 as valid. The reason assigned for this distinction is the circumstance that, according to the ancient law, a wife could not divorce her husband, while he could divorce her even against her will. Hence, if he was not willing to accept the marriage forced upon hiin, he still had it in his power to free himself by a bill of divorce. (^) Since, however, in later times, by the authority of Rabbi Gershom (eleventh century), the rule was estab- lished that no man must divorce his wife against her will, both cases ought to be treated alike, and the mar- riage should be void, whoever may have been the forced party. (2) b. CONDITIONAL CONSENT. oU. If the consent was given under certain conditions on either side of the parties, the validity of the marriage depends upon the strict fulfillment of those conditions. Such conditions must, however, be distinctly and juc- cisely formulated according to certain rules of the Tal- mudic Law ; otherwise they are without effect and have no influence upon the validity of the marriage con- tract. (3) To understand the rabbinical provisiqns regarding con- ditional consent, it must be borne in mind that anciently, as will be seen in a following chapteK, a period of one (1) See Maggid Mishne to Ishuth I\'. 1. (2) Compare Ture Zahab to Eben Ha-Ezer XLII. 1. (3) The particulars concerning the form and nature of such conditions are found in Maim. Ishuth VI. ; Eben Ha-Ezer :ixXA'III. 68 MARRIAGE QUALIFICATIONS. month to a whole year usually intervened between the act of contracting mai'riage (termed Kidduahin) and the nuptials (termed Nissu-in). It then sometimes occurred that the consent to a contract of marriage was given on certain conditions, which, if not fulfilled, eventually vacated the contract. But the consummation of such a conditional contract by the nuptials, or by cohabita- tion, Avas rcgaided as a silent annulment of the condi- tions, so that their non-fulfillment did not affect the validity of the marriage. (^) It is hardly necessary to be stated that in our time, wliere the act of contracting marriage is combined with tlie nuptials on the wedding dajs the consent of the parties to marriage must be absolute, without any •CnXDITIOXS WHATEVER. (1) 8ee Tal. Kethuboth 74a; Maim. Ishuth VII. 23.; E. H. XXXVII. :i."). — A certain analogy to this Rabbinical Law is found in modern law writing in reference to conditiok.\l promise op kutuee marriage, fol- lowed by cohabitation, and also in regard to mAkkiages procured by FHAUD and duress. AV'e quote the following: "If (in a conditional promise of future marriage) the condition is of a nature not to be puri- fied until after the copula is had, the law will not found on the trans- action a marriage; but, if the condition could be purified before, or at tlie time, the law will presume it was so purified, and will infer a pres- ent mutual consent. An illustration of the latter.case is : If a man has ii^rced to marry a woman when he can do so with comfort, or when she finds caution that is free from debt, or worth a sum of money named, the.oondition, in its nature, may at any time be purified, and, if copula follows such a promise, the law will hold the parties to be married." Bisliop, Mar. and Div. (fourth ed.), I. 263. Regarding a marriage pro- cured by rK.^UJ), the Same authority says (p. 2185 : "In fraudulent mar- liijrew, cohabitation, with knowledge of the fraild, will bar the right to luive the marriafi-e set aside. * « « We may tDbserve that the fact of the marriage not having been coiisummated Ras in many instances liowcrfuUy influenced the court in favor of settipg it aside." COJV'SENT. . ' 69 0. ERROR AXD FALSE REPRESENTATION. §;>]. Error in respect to the qualities of one of tlie con- tracting parties, as his fortune, rank, character and circumstances, does not render tlie mlirriage void, unless the consent had been given on the express condition that the representation made be verified. (^) Whether error respecting physical imperfections affects the validity of the marriage contract, is a doubtful ques- tion. Even if their non-existence had been stipulated, only certain imperfections, generally regarded as such, vitiate the contract. (-) d. THE CONSENT OP PARENTS. § 32. The consent of parents is no legal requirement when the parties to the marriage are of age. (^) In conse- quence of the high respect and veneration, however, in which father and mother have ever been held among (1) Maim. H, Ishuth VIII. 1, 6; E. H. XXXVIII. L'4.— We may observe that an error in regard to the identity op person, as, it one person be substituted for another, will invalidate the marriage aecord- ing to the Jewish Law, as well as it does according to the modern la"ws. (2) Maim. Ishuth VII. ; Eben Ha-Ezer XXXIX. (3) Maim. Ishuth III. 12 ; Yore Dea, ch. 240, 25 gloss.— Also nooord- ing to modern laws in general, the consent of ,parent3 is not require- yisions giving aright to the father to sue for a, penalty the clergyman or magistrate who shall marry his minor child. 2 Kent's Com. ,S(i : Bouvier Inst. I., No. 253. The last-mentioned law writer remarks, in this connection: "It is to be regretted that paternal authority is not more respected, for whenever that is disregarded other duties are iiei;- lected." 70 MARKIACE QUALIFICATIONS. Israelites, the cases of contracting marriage without the parents' consent fortunately belong to the rarest excep- tions. S. MENTAL CAPACITY, a. IDIOCY AND LUNACtY. § 33. Since consent is absolutely requisite to the marriage contract, neither idiots nor lunatics are capable of con- tracting a valid marriage. {^) The marriage of a person subject to temporary in- sanity is, however, not void if contracted in his lucid intervals. (^) Although it is very improper to enter upon the sacred relations of matrimonial life in a state of intoxication, still the marriage would not be void if contracted in such a state, provided the intoxication- had not reached the degree of unconsciousness. (^) h. THE DEAF AND DUMB. §34. Persons deaf and dumb were in anbient times gener- ally looked upon as a kind of idiot, hence considered legally incompetent to contract marriage. The Tal- mudic Law, hoAvever, conceded them the power of con- cludii^g such a contract ljy means of signs ; but this (1) Maim. H. Ishuth TV. 9; Ebeu Ha-Ezer XLIV. 2. (2) See R. >[. TssEiiLEs' gloss to the section of E. H. just quoted. (3) Maim. ibiiJ. § IS; E. H. ibid. § :i. ^EGAL AGE. 71 marriage, being merely tolerated, had not all- the effects and consequences of a perfectly valid marriage. (^) S. LEGAL AGE. a. AT WHAT AGE MARRIAGE IS LAWFUL. § 35. In the ethical teachings of the Talmud the age of eighteen years is fixed as the proper period of entering the state of married life, (^j Certain considerations, how- ever, rendered it advisable to permit marriage to take place at a still earlier period. (^) The legal age for contracting a n'alid marriage is, according to the Talmudical Law, the age of puberty, which, in general, is assumed to be the completed thir- teenth year in males and the completed twelfth year in females. (*) A marriage contracted by minors under that age is void. {^) (1) Talmud Yebamoth, p. 1126; Maim. Ishuth IV. 9; E. H. XLIV. 1. The laws of modern States declare such persons competent to contract a valid marriage. — Some learned rabbis of our time are of the opinion that the provisions of the Talmudic Law in this respect can not apply to the deaf and dumb o£ our days, who are for the most part well edu- cated in the institutions established for this pnr|)ose, where they become enabled to communicate their ideas in writing, as well as in audible words. See the articles on this subject by A. Hochmutu, Leopold LoEW, M. DuscHAK and S. Back, in Ben Ciiananja I., p. 374 sq.; 465 sq.; II. p. 79 sq. (2) Aboth V. 13. (3) Talmud Yebamoth 62 ; Kiddushin 29. (4) Tal. Nidda, p. 44; Maim. Ishuth II. 1, 10. (5) Kidd. 50; Maim. Ishuth IV. 7; Eben HarEzer XLIII. 1. According to the common law of this country, no persons are capable of binding themselves in marriage until they have arrived at the age of consent, which is fixed at fourteen in males, and twelve in females. This law was no doubt borrowed from the Roman Law, which estab- lished the periods of twelve and fourteen as tile competent age of con- senX to render the marriage contract binding. Kent's Com. II. 78. 72 MARRIAGE QUALIFICATI(5nS. h. THE jriXOIt DAUGHTER. An exception to this rule was ma{ie in former times in favor of a minor daughter. Her father could give her in marriage before her puberty, and this marriage was regarded perfectly valid. Without the father's consent, however, the marriage of the minor is void, (^) If she bo fatherless, her mother or brother could give her in marriage ; but in this case the contract is voida- ble at the election of the infant at the time of her becom- ing of age. She could then either confirm the marriage, thereby making it afterward ever binding without any further ceremonies, or she could protest against it. Such a protest, termed Me-un (px'D), rendered the marriage void, and set aside the necessity of a divorce. (-) In order to understand the impulse toward the custom of contracting marriage in behalf of minor daughters, which prevailed in oriental antiquity, it must be borne in mind in what a pitiable state of forfornness an unmar- ried female was, in case of her father's death or pov- erty. Careful fathers, therefore, tried to insure their minor daughters against such consequences by contract- ing marriage in their behalf, while uilder their authority. Such contracted infant marriages Avere, as a rule, not actually consummated before the parties had reached tlie age of puberty. Even as early us in the third century, one of the most (1) Maim. Ishuth III. 11, i:^ ; Eben Ha-Ezer XXXVII. 1, 4. (j) Maim. Geriishin XI. ; Eben Ha-Ezer CLV. LEGAL AGE. 73- celebrated Talmudic authorities, Abba Areka, of Surft, raised an emphatic protest against the practice of such infant marriages, by declaring : " It is a moral wrong that a father should contract a mairiage in behalf ot' his daughter before she has attained the age of con- sent." (1) In disregard of this warning, the custom of giving infant daughters in marriage came again into vogue even among the European Jews urpose there are two especial formalities, cither of which gives legal A^alidity to the marriage conti^act. One of these (1) See Talni. Kiddushin, ]i. 126; Maim. Isliuth III. 22; Kbeh Ha- Ezer XXVI. 4. C^) Maim. II. Medicru T. 1 ; II. 8; YIl. S, 9, 78 ANCIENT MARRIAGE FORM. formalities is termed Kaseph (i. e., money), the other Sh'iar (i. e., a written instrument). (^•) Tlie betrothal by Kaseph consisted in tliis, that tlie man gave, in the presence of two witnesses, to his chosen bride, a piece of money (even a Peruta, the smallest copper coin used in Palestine, was sufficient for that purpose), or any object of equal valup, with the words : "Be thou consecrated (wedded) to nae." ('^) (1) The Talmudic Law speaks, besides, of another mode by which,, under certain conditions, mari-iage is legally contracted, namely, Be-ah (i. e., copulatio carnalis). But this rather too primitive mode of con- tracting marriage was already in ancient timea declared morally objec- tionable, and even pmiishable. Tal. Kiddushin, p. 12 ; Maim. Issure Be-ah XXI. 14; Eben Ha-Ezer XXVI. 4. (2) Maim. Ishuth III. 1; Eben Ha-Ezer XXVII, 1.— The formality of contracting marriage by means of a piece of money did probably not originate before the time of Herodes ; this is evident from the circum- stance that the schools of Shamai and Hillel still differed as to the minimum, value which that piece of money must have (Mishna Kidd. I. 1). In the apochryphal book of Tobit the act of contracting a mar- riage is occasionally described (chap, vii.), but no mention of that formality is made, tliough the whole tone of ttie narrative bespeaks a late time of its composition. It ia not improbable that the formality was adopted from the Roman Law, in which a similar formality was- established as one of the three modes of forming a legal marriage. The formality — there termed coemptio — is described in the following way. (see Bouviek's Law Diet., art. "Coemptio") : "The parties met and gave each other a small sum of money. They then questioned each other in turn. The man asked the woman if she wished to be his mater-familias. She replied that she so wished. The woman then asked the man if he wished to be her pater-familias. He replied that he so wished. They then joined hands. And these were called nup- tials by coemptio." The rabbinical formality differs, however, from the Eoman in this, that the act is done by the man only ; he gives the money or its value, and he speaks the formula, while her consent is expressed by her silent acceptance of both. This passivity on her side is in consequence of the Talmudio principle based on the expres- sion used in the Mosaic Law; "If a m.^n taketh a wife;" " h(+ takes and she ia taken ; he is the active and l^he the passive party. ' ' Talm, Kiddushin 26 and 5fc. BETBOTHMENT. 79' As the formality of contracting marriage by money had in the Rabbinical Law merely a symbolical charac- ter, a coin of the least value, and even any other object representing such a value, could be used to perform this formality. The formula, " Be thou consecrated (wedded) to me," could also be replaced by other words expressing the same idea, as : " Be thou my betrothed," " Be my wife," " Be mine," etc. The first-mentioned formula was gen- erally used, and was later increased by the additional words : " According to the Law of Moses and Israel." (^) The betrothal by Sh'tar consisted in giving to the bride a written instrument containing the formula before mentioned, instead of a piece of money or its value, the same formalities being observed. This mode of betrothal seems, however, to have* been resorted to^ only under extraordinary circumstances, as the former mode prevailed. (^) During the Middle Ages it became customary for the act of betrothal by Kaseph to be performed by means of a plain ring, instead of a piece of money, (^) and (1) See R. M. Isserles' gloss to Eben Ha-Ezer XXVII. 1. The addition, fX^d niyTi m2, is already mentiotied in Thosifta Kethu- both IV. as having been used in the written marriage contracts (Kethuboth) at the time of Hillel, but it was not before the twelfth century that these words were generally added to the formula of betrothal. Compare Frankel's Orundlinien, p. XXV., note 4, and Sen Chananja III., p. 219. (2) Maim. Ishuth III. 21. (3) Mention of the wedding ring is made neither in the Talmud nor in the earlier rabbinical writings, which proves its later origin. The French and German rabbis of the thirteenth and the sixteenth centu- ries mention it as an established custom. See Tosaphoth Kidd. p. 9a, and gloss to Eben Ha-Ezer XXVII. — In the Christian Church the wedding ring was used much earlier, as it is already mentioned by the Fathers of the Church. Thus, Isidob Hispalen (De offic. ecclesiast. so AXCIENT MARRIAGE FORM. this custom has ever since prevailed up to our time, in which the plain circle of pure gold .is general^ looked upon as a symbol of conjugal fidelity, and as a reminder that the love of married people should be infinite, (i) C. BETROTHAL THROUGH REPRESENTATIVES. §40. The presence of the pai'ties at the act of betrothment WHS ]iot absolutely necessarj', as either of them could be represented by an agent, appointed for that purpose. In this case the formula of the betfothment had to be ■changed according to the circumstaHjces. It was, how- ever, regarded more proper that the parties be present in person, (-) d. WITNESSES. §41. The presence of two competent and qualified witnesses is an absolute requirement for the validity of the act of II. 20) symbolizes the ring in the following wa}' : " lUud vero quod impritJii|.s annulus a Sponso sponsae datur, fit hoc vel propter mutute fidei signum, vel propter it magis, ut eodem pignoro eorum corda jun- gantur." The church probably adopted the oustom from the ancient Romans, who, according to Pliny, hist, nat., lib. XXXIII., c. 5, made use of an iron wedding ring (annulus pronubus) as a symbol of strength and duration. See Ben Chananja X., p. 420, note 11. (1) A modern English writer, in speaking of tlic wedding ring, remarks: "The reason why a ring was pitchad upon for the pledge, rather than anything else, was because anciently the ring was a seal, by which all orders were signed, and things of value secured, and therefore the delivery of it was a sign that the person to whom it was given was admitted into the highest friendship and trust. For this reason it was adopted as a ceremony in marriage to denote that the wife, in consideration of being espoused to the man, was admitted as a sharer in her husband's counsels, and a jo'int partner in his honor aTid estate." AVilliam Jones, Finger Ring Lore (London, 1877), p. 297. (2) I\Taim. lahuth III. 19; Eben Ha-Ezer XSXV. BETROTHMENT. 81 betrothal. No compliance with forntis is, according to Jewish Law, of any avail when such witnesses are not present. According to the Talmddic Law, only males who are of age, of sound mind and of moral character, are, in general, regarded as competent to act as witnesses. Besides, the witnesses may be closely related neither to each other nor to either of the parttes to the marriage. Persons suspected of unchastity are strongly objected to. (1) As some rigorous rabbis objected even to persons not observing the Eitual Laws, the Israelitish Synod of Augsburg found it necessary to pass the following reso- lution : " No person can be rejected as witness to mar- riage and divorce on account of not observing the Ritual Laws." (2) e. DOUBTFUL BETKOTHUENT. §42. A betrothment in regard to whose validity any doubt arises, be it on account of an irregvllarity in the mode of its conclusion or on account of incompetency of the witnesses, or on account of stipulated conditions which have not been fulfilled, is either to be concluded anew according to the prescribed formalities or to be dissolved by a formal divorce. (^) (1) Maim. Ishuth IV. 6; Bben Ha-Ezer XLII. 2-5, and gloss to the last paragraph. Regarding the general qualifications of the witnesses, see Maim. Eduth IX. and XIII. (2) Verhandlungen der Zweiten Synode, p. 62-71. (3) Maim. Ishuth IV. 6; Eben Ha-Ezer XLII. 5. S2 ANCIENT MARRIAGE FORM. f. BENEDICTION OF BETROTHAL. § 43. The ritual law of the Talmud requires that a benedic- tion be pronounced at the betrothment. The benedic- tion, termed Berchath Kiddushin or Arusin, expresses the Lord's praise because of the reguld.tion and sanctifica- tion of the matrimonial relation." Besides, it alludes to the law that the betrothed parties are not permitted to enter upon the conjugal life before their union has been completed by the ceremonies of the nuptials. {}) The legal validity of the betrothal is by no means affected by the omission of that benediction. a. NUPTIALS, a. INTERVAL BETWEEN THE TWO ACTS. §44. Between the betrothal and the nuptials an interval elapsed, varying, in the Talmudic times, from a month for widows to a full year for virgin^. (2) This interval was principally for the purpose of making the bride's outfit and the necessary preparation for the nuptials. During this period she lived with her friends, and every intimate intercourse between herself and her future hus- band was strictly prohibited. (^) (1) Talm. Kethuboth 7; Maim. Ishuth III. 24; Eben Ha-Ezer XXXIV. 1. (2) Kethuboth, p. 57. (3) Maim. Ishuth X. 1 ; Eben Ha-Ezer LV. 1. NUPTIALS. 83 i. TERM AND ESSENCE OF THE CEREMONIES. §45. The nuptials are termed Chuppa or Nissu-in. The latter term means, literally, taking (namely, the wife). Ghvppa originally denoted the bridal chamber, or the nuptial apartment, usually in the young husband's house, to which he conducted his bride, and around which the festivities of the occasion took place during the first seven days of their conjugal life. (^) In later times, the word Chuppa denoted the baldachin, under which the cere- monies of solemnizing marriage took place. (^) Some authorities take the term in a rather figurative mean- ing, denoting the first intimate interview {yichud) be- tween the bridegroom and bride. {'^) The nuptials have ever been attended with many kinds of ceremonies, which varied in different ages and countries. The essence of the ceremonies consisted in the act of conducting the bride from her home to that of the bridegroom, or a place representing his home. By this act, indicating that she was now placed under his marital authority and that they now commenced to live together as husband and wife, the ma'rriage was regarded as having been consummated. They were then, in all respects, considered as husband and wife, though no conjugal intercourse had actually taken place. (*) (1) Ps. xix. 6 ; Joel ii. 16. In this meaning the term was still used during the Talmudic period. (2) Eben Ha-Ezer LV. 1, gloss. (3) Maim. Ishuth X. 1. (4) Talm. Kethuboth, p. 48; Maim. Ishuth X. 2; Eben Ha-Ezer LXI. 1. Also the Roman Law requires the deductio in domum mariti, or a place representing his home, to complete Ithe marriage. Compare L. 5 D. de R. N. ; L. 5 de usu et habit. 7, 8. 84 ANCIENT MARRIAGE POllM. C. RELIGIOUS CEREMONIES. §46. The religious ceremonies attending the nuptials con- sist mainly in the recital of certain benedictions estab- lished by the Ritual Law for that occasion. In contra- distinction to the Berohath Arusin — the Benediction of the Betrothal — these benedictions are termed Berchoth Nissu-iv — Nuptial Benedictions. They refer to the divine ■origin of marriage, and invoke God's" blessing upon the young couple. The presence of at least ten persons is required at the recital of these benedictions, in order to give the act publicity and solemnity. (^) Although a marriage is legally valid without the bene- dictions at the betrothal and nuptials, (2) still a mar- riage without such a ritual is of the rarest occurrence among Hebrews, as some religious ceremonies are gen- erally regarded as highly appropriate to attend the act of concluding the most important and sacred relation of life. The presence of a rabbi or minister is, according to the Talmudic Law, not required at the betrothal or the nuptials. The prescribed benedictions were pronounced either by the bridegroom or by any of the friends pres- ent. Such was also the custom duririg the Middle Ages. The intervention of a rabbi was necessary only in cases where a doubt arose concerning the validity of the con- cluded marriage. Subsequently, however, it became a settled rule to have the assistance of a rabbi in order (1) Talm. Kethuboth, pp. 7 and 8; Maim. IsWth X. 3-5; Eben Ha- Ezer LXII. 1-4. (2) Maim. ihkl. X. 6; Eben Ha-Ezer LV. 3 and LXI. 1, gloss. NUPTIALS. 85 to supervise that important act. In modern times it is generally regarded as a privilege of the rabbi or the authorized minister to solemnize the marriages within his congregation. d. COMBINATION OF BETROTHAL A-ND NUPTIALS. § 47. The interval between the betrothal and the nuptials, having probably been found to lead to some inconveni- ence, it has since the sixteenth century become a general rule to join the act of betrothal with the ceremonies of the nuptials on the wedding day. B|r this combination, the act of concluding marriage receited more solemnity and impressiveness. The joint act took place usually under the nuptial haldachin, which represented the ancient CTiuppa — the bridal chamber.. It was also cus- tomary to introduce the ritual of the act of betrothal and that of the nuptials with a benediction over a cup of wine, (^) as a symbol of joy, and finally to let both the bridegroom and the bride drink out of that cup, which, in modern time, is usually symbolized as an indication of their willingness henceforth to drirflj together from tlio cup of life whatever Providence may allot to them, e. KBTHUBA. §48. In order to protect the wife in the event of her becom- (1) See Eben Ha-Ezer LXII. 9. — That the combination of betrothal and nuptials occasionally occurred also in forruer centuries, is evident from Tosafoth Pesachim, p. 102b. ■SG ANCIENT MARRIAGE FORM. ing widowed or divorced, it was established by the Jewish Law tiiat, before the nuptials, the hu&band was to make out an obligation in writing, which entitled her to receive a certain sum from his estate in the case of his death or in the case of her divorcement. This obligation was termed Kethuha (the marriage deed). As minimum of this obligation waB fixed the sum of two hundred silver denarii at the marriage of a virgin and one hundred at the marriage of a widow. This amount could, in either case, be increased at the option of the husband, which increase was termed Thosaphoth Kethuha — additional obligations. For the security of the wife's cyim to the amount fixed in the Kethuha, all the property of the husband, both real and personal, was mortgage"d. The institution of the Kethuha was originated or regu- lated by Simon ben Shatach, President of the Sanhedrin in Jerusalem (about 100 B. C). {^) In later times, the document of the Kethuha was to- contain, also, some articles of marriage settlements, set- ting forth the general duties of the husband to his wife, and stating the amount of vdilue of the portion she brings to him in marriage, which amount, with an addition of fifty per cent., she was to receive in case her husband died or divorced her, As all legal documents of the ancient rabbis, so also that of the Kethuha was formulated in the Aramaic Ian guage, and had to be signed by two 'witnesses. (1) Tal. Kethuboth, p. 826; Sabbath, p. 14. The Kfthvim is also mentioned in the book @f Tobit, VII. 14, where it is termed Sungraphe. KETHUEA. 87 f. FORM OF THE KETHUBA. §49. The following is a translation of the original form of the Kethuba : {^) " On (day of the week) the — day of the month ■ , in the year A. M., according to the Jewish reckoning, here, in the city of , Mr. , son of , said to the vir- gin , daughter of : ' Be thou my wife, in accord- ance with the laws of Moses and Israel, and I will work for thee, and I will hold thee in honor and will support and maintain thee, in accordance with the* customs of Jewish husbands, who work for their wives, hold them in honor and support and maintain them. I will furthermore set aside the sum of two hundred silver denarii to be thy dowry, according to the law, and besides, provide for thy food, clothing and necessaries, and cohabit with thee according to the universal custom.' " Miss , on her part, consented to become his wife. The marriage portion which she brougjit from her father's house, in silver, gold, valuables, clothes, etc., amounts to the value of . Mr. , the bridegroom, consented to increase this amount, from his property, with the sum of , making, in all, . He furthermore declared : ' I take upon myself and my heirs the responsibility for the amount due according to this Kethuba, and of the rparriage portion, and of the additional sum (by which I promised to increase it), so that all this shall be paid from the best part of my prop- erty, real and personal, such as I now possess or may here- after acquire. All my property, even the mantle on my shoulders, shall be mortgaged for the security of the claims above stated, until paid, now and forevqr.' " Thus, Mr. , the bridegroom, has taken upon him- self the fullest responsibility for all thp obligations of this Kethuba, as customary in regard to the daughters of Israel. (1) The original forra of this document is to-be found in Maim. Hil. Yibbum IV. 33 ; also in the book Nachlath Shib'a, which treats of all kinds of legal documents established "by the rabbis. 00 ANCIENT MARRIAGE FORM. and in accordance with the strict ordinances of our sages of blessed memory : so that this document is not to be regarded as an illusory obligation or as a mere form of documents. " In order to render the above declarations and assurances of the said bridegroom, , to the said bride, , perfectly valid and binding, we have applied the legal for- mality of symbolical delivery. " [Signature of the Groom.] " [Signature of the two witnesses.] " g. FORMER IMPORTANCE OP THE KETHUBA. §50. As long as the ancient law prevailed, by which a man, could divorce his wife against her will, the greatest im- portance was attached to the Kethula. Her claims, tO' which she was entitled by this obligation, proved, in many cases, an effective means of protecting her against a rash and inconsiderate divorcement, (i) It was, there- fore, in general, regarded as indispensable that such a document be written in due form, before the parties en- tered into conjugal life. In some places, however, it was not deemed necessary to write a formal document, as the husband was regarded bound to the contracts of the Kethuha, though not made out in writing. From the time when the husband's right of divorcing his wife against her will was restricted by the generally adopted decree of the Synod of R. Gershom (eleventh century), the Kethnha lost its former importance. (^) Nevertheless, it was retained as an ajncient custom, and looked upon as a kind of formal marriage settlement. (1) Tal. Kethuboth, p. 11 ; Maim. Ishiith X. 7. (2) See R. IssEKLEs' gloss to Eben Ha-Ezer LXVI. 2. KETHUBA 89' As the wife, in our days, is sufficiently protected by the civil laws of the country, and in many cases also by special marriage settlements made in h more legal form,, the Kethuba is generally regarded as an unnecessary, use- less formality, and is almost entirely dispensed with. CHAPTER XI. THE FORM OF MARRIAGE IN OUR TIME. 1. THE MODERN MODE OF SOLEMNIZATION. § 51. In the modern mode of solemnizing marriage, the essen- tial elements of the combined acts of betrothal and nup- tials are retained, though more or less modified. These essential elements are the placing of the wedding ring on the- bride's finger by the bridegroom in the presence of two witnesses, and the recital of the established for- mula of betrothment by him, preceded by a benediction {Berchath Arusin) and followed by* the nuptial bene- dictions (Berckoth Nissu-in). Some immaterial and ob- solete ceremonies and iisages, howeyer, as the nuptial haldachin, the reading of the Kethuha, etc., are mostly done away with and replaced by other forms, correspond- ing better with the views and the taste of our days. To the laudable innovations almost generally adopted in the nuptial ceremonial belong : 1. The introductory address by the ofiiciating rabbi, in which he reminds the parties to the marriage of the importance of the step they are about, to take, ^d of the If 90 SOLEMNIZATION. ' 91 sacredness of the mutual duties whicli their new relation imposes upon them. 2. The question he puts to each of the parties, whether they, of a free will, consent to be united as husband and wife, and pledge themselves to fulHU their respective duties in love and faithfulness. This question is to be answered in che affirmative by each =of the parties. MINOR DIFFERENCES. § 52. Eegarding some points in the ceremonial, no perfect uniformity prevails in our time. a. ONE OR TWO WEDDING RINGS. While, according to the established custom, only one wedding ring is used, which the bridegroom places on the bride's finger (usually on the index of the right hand), while pronouncing the ancient formula of be- trothal, some modern rabbis introduced the custom that, in addition to this act, also the bride on her part tenders a ring to the groom while pronounciiig similar words, (i) By this innovation it is intended t® express the full equality of woman with man in the conjugal relation (1) The same difference in regard to the use of one or two rings is found to exist also among the various denominations of the Christian Church. While the Greek and the German Lutheran Churches gener- ally adopted an exchange of rings, the English and the American Churches retained the Roman Catholic custom of usins; only one ring, Avhich the man puts upon the fourth finger of the woman's left hand in pronouncing a formula which greatly resembles the Jewish. It runs : " With this ring I thee wed, and with all my worldly goods I thee endow." 92 MODERN MARRIAGE FORM. and in moral life, so that, just as he consecrates her to be his alone, so she consecrates hird to be hers alone, in person and affection. The Rabbinical Conference of Philadelphia (1869) passed, in this respect, the following resolution : " The bride shall no longer occupy a passive position in the marriage contract, but a reciprocal avowal should be made by the bridegroom and the bride, by pronouncing the same for- mula, accompanied by an exchange of rings." (^) The question of using two wedding "rings was discussed also in the Augsburg Jewish Synod (1871). The Synod, however, did not think it advisable to make this inno- vation obligatorj'^, but only declared ist to be permissible and optional. The resolution passed on this subject reads as follows : "In the act of concluding marriage, after the bridegroom having given ^nto the bride a ring with the words, ' Be thou wedded to me by this ring,' it is permitted that the bride like- wise give unto him such a ring with corre§,ponding words." (^) h. THE FORMULA OF THE WEDDING CEREMONY. The established formula of the wedding ceremony is : " Hare at mlhuddesheth le b'taba-ath zu kedath Moshe ■u'Fis- roeV In literal translation : " Be thou sanctified (wedded) to me by this ring, according to the law of Moses and Israel." This formula is generally still used in the original language. Some modern rabbis, however, prefer to use (1) Protokolle, p. 19 sg. (2) Verhandlungen, pp. 30-49. CIVIL MARRIAGE. 93 a corresponding formula in the vernacular. The Phila- delphia Conference adopted for this purpose the for- mula : " Be thou consecrated to me according to the law of God." (1) 0. THE RITUAL. The established benedictions (thfe Berchatk Arusin preceding and the Berchoth Wissu-in following the act of giving the ring) are, in general, retained in the He- brew language, omitting only the references to Jerusalem. In the ritual of some reform congregations, those bene- dictions are replaced by new prayers in the vernacular. (2) Some modern rabbis have also done away with the cus- tom of using a cup of wine at the marriage ceremony. This ancient custom, though certainly not essential, has received a beautiful symbolical meaning, which might recommend its preservation. «. CIVIL MARRIAGE. § 53. Under rabbinical autonomy and jurisdiction, a Jewish marriage was recognized as only then complete and law- ful when contracted strictly accordii% to the forms pre- scribed in the Talmudic Code. (^) In modern time, (1) Protokolle, pp. 22-25. (2) The ancient "Wedding Ritual is found in Leeser's Prayer Book, p. 216,. As to the modern Rituals used in the American Jewish con- gregations, see Einhorn's Prayer Book, German, p. 441 ; English, p. 351 ; Huebsch's Prayer Book I., p. 230 ; Szold and Jastbow's Prayer Book for Domestic Service, p. 60. (3) See Eben Ha-Ezer XXVI. 1. 94 CIVIL MARRIAGE. Jewish marriages, like all other marriages, are generally placed under the authority of the civil laws of the coun- try. No person has a right to solemnize a marriage unless duly authorized by these laws. In general, the ministers of the different religious corporations; are invested with this authority, and by the statutory laws of several of the States of this country it is expressly provided "that all persons may celebrate their marriage according tO' the rules and principles of that religious society, church or denomination to which they belong." But the State laws permit, also, civil marriage, that is, a marriage without any religious solemnity, contracted before a judge of any court of record or by a justice of the peace. The modern rabbi will not hesitate to recognize the validity and sanctity of a marriage contracted in this civil way, though from a religious standpoint he may disapprove members of his flock treating the most sacred relation of life merely as a civil co|itract, by entering- upon it without the consecration of irnpressive religious solemnities. In this spirit the Second Israelitish Synod, held in Augsburg (1871), on motion, passed the follow- ing resolution : " The civil marriage has, according to the view of Judaism, perfect validity or sanction, provided that the Mosaic Laws of prohibited degrees (for instance, the marriage between aunt and nephew) are not violated. The religious solemnization, however, is required (urgently recommended) as a consecra- tion befitting the dignity of marriage." (^) (1) Verhandlungen, p. 106 and p. 257. THE EFFECTS OF MARRIAGE. CHAPTER XII. THE OFFSPRING OF LAWFUL AND UNLAWFUL MAR- RIAGES. § 54. In regard to hereditary succession, the Rabbinical Law makes no distinction between children born in lawful and those born in unlawful wedlock. . E'^en the most oppro- brious kind of bastard, a mamzer, though in social and religious respects ranking very low, was regarded a legiti- mate child, capable of inheriting his putative father, (i) The guiding principle, in this respect, seems to have been that, if the father did wrong to the child in occa- sioning it to be brought into the world in a shameful manner, this wrong must not be increased by depriving it of its heriditary rights. (^) But in regard to the religious status of the offspring, it was of consequence whether a marriage was valid and (1) See Talm. Yebamoth, p. 22, and Maimonides Nechaloth I. 7. i}) See Feankel, Grundlinien, p. xxi., note 6. — A different view is taken by modern laws, in wliicli it is generally held that the qualities of husband and wife in lawful marriage must be possessed by the parents in order to make the offspring legitirfiate. In Virginia, how- ever, it is provided by a statutory law, that the issue of marriages deemed null in law shall nevertheless be legitimate. See Bouvieb's Law Diet., under " Legitimacy." 95 96 THE OFFSPRING. legal or not. In this respect, the following four rules are laid down in the Rabbinical Law : (^) 1. Wherever a marriage is valid and entered into without viola- tion of any law, the child follows the status of the father. ( -) For instance, it is, in general, lawful- for a Kohen (that is, a descendant of the ancient priestly families, who for- merly had certain religious prerogatives and duties) to intermarry with common Israelites. Hence the offspring ■of a KoTien is regarded a Kohen, though the mother he a ■common Israelite, while the offspring of a common Israel- itish father is regarded as a common Israelite, though the mother be a descendant of a Kohen. 2. Wherever a marriage is not void, though entered into in vio- lation of a 'prohibitory law, the child follows the inferior status of ■either of the parents. (^) For instance, a mamzer, that is, one born in an incest- uous or adulterous connection, and an Israelite, shall not intermarry. (^) Still, their marriage, if entered into, is not void, though voidable. Hence the offspring of such a marriage is regarded as a mamzer in either case, whether the father or the mother had that character. 3. Where the mother tvas incapable of contracting a valid mar- riage with her child's father, but capable of being married to others, ■that child is to be considered a mamzer. This rule applies exclusively to the offspring of either (1) Mighna Kiddushin III. 12 ; Eben Ha-Ezfer VIII. 1-5. (2) Similar to this rule is the maxim of the Civil Law : Cuvi legill- mae nuptiae factac sunt, patrem liheri sequuntuif. — " A child born under a legitimate marriage follows the (social) condition of the father." (•■j) Also this rule has an analogy in the Eppian Law regarding the civil rights of the offspring of a matrimonium nan justum. See Ulpian. in fragm. Y. 18 : Lex Mensia ex alterulro peregHno natum, deterioris pa- rentis conditionem sequi jubet. (4) See above, p. 43. THE OFFSPETNG. an adulterous or any of ihe incestuous connections dis- tinctly prohibited in the Mosaic Law. (Lev. xviii.) 4. Where, in either of the parents, absolu^ly no capacity to con- tract a (Jewish) marringe exists, the child foUows the status of the mother. (^) The capacity to contract a Jewish inarriage is by the Rabbinical Law restricted to Israelites by birth, and to such Gentiles as have embraced Judaism. (-) Hence the children of a Jewish father and a non-Jewish mother are regarded as non-Jews, while those of a non-Jewish father and a Jewish mother are deemed Jews. Although in modern time such interjnarriages are legal- ized by the civil laws of the country, ithis rule, regarding the religious status of the offspring of a mixed parentage, is still generally adhered to in the Jewish community. The adherence to this rule is also recommended by the consideration that children, in their religious training, are mostly influenced by their mothei< (1) The Mishna Kidd. III. 12 speaks only of cases of such incapacitj' on the mother's side, but the Geniara and later rabbinical authorities decide that the rule applies as well to cases where the incapacity is on the father's side : TW "iblH 5S12?-' n3 TJ NDH 12:}: '■tDl, Yebamoth.p. 45 ; Eben Ha-Ezer IV. 19. — The difference between the rule 3 and the rule 4 is obvious. There is a case of a moral crime (incest or adultery), in which both of the parents participated ; hence their offspring becomes branded with the character of a mamzer; while-the fourth rule refers to an incapacity based on purely religious consideijations, which are bind- ing only upon the Jewish party of the parents'; hence their offspring is not considered a mamzer. [ See the Bev. Dr. A. Huebsch's (Senior) arti- cle ' 'Puncto Mischehen, ' ' in Die Deborah, \'ol. XK VII. No. 30. ] That the child in the latter case, follows the status of the mother, is in Talm. Kidd., p. 686, based on Scriptural passages, but the underlying princi- ple has an analogy in the maxim of the Civil Law : Qui nascitur sine logititno matrimonio, matrem sequitur." — " He who is born out of lawful marriage follows the condition of the mother." D. I. 5, 24. (2) See above, p. 46. CHAPTER XIII. HUSBAND AND WI.FE. § 55. The marriage relation imposes on husband and wife certain obligations and confers upon them certain rights. These duties and rights are largely (fonsidered and very- minutely regulated in the Rabbinical Law. (^) As the modern Jews, in all civilized countries, are, in this respect and in all purely civil affairs, entirely gov- erned by the laws of those States whose citizens they are, we do not propose to enter here minutely into all the details of the Rabbinical regulations concerning this sub- ject, but shall confine ourselves to the leading principles only regarding — 1. The marital duties and rights, arid 2. The wife's property. 1. MARITAL DUTIES AND MIGHTS, a. THic husband's duties. §56. The Mosaic Law contains no exprisss provisions con- (1) Talm. Kethuboth, chapters IV.-XIII. ; Maim. Ishuth XII.- XXIII. ; Eben Ha-Ezer LXIX.-CXVIII. 98 husband's duties. 99 cerning the marital rights and duties, except the injunc- tion made in a cercain case : " Her food, her raiment and her conjugal eight shall he (the husband) not diminish." (Exodus xxi. 10.) Upon this casual intimation are based the elaborate regulations of the Rabbinical Code concerning the hus- band's obligations, -which are treated of under the fol- lowing headings. It is his legal duty: 1. To furnish his wife with the necessaries of life, in- cluding — (a) food ; (J) clothing ; (c) dwelling. 2. To have conjugal cohabitation with her. 3. To provide suitable medical care and nursing when she is sick. 4. To protect her and to ransom her in the eventuality of her falling into captivity. 5. To provide for her burial in case of her death. The extent of the obligations cojicerning her food, clothing and dwelling depends upon his fortune and situation in life, and also upon the lo,cal customs. If he become poor, she must be content with his modest way of living. In case of necessity, he is, -according to some authorities, bound to hire himself out as a day laborer in order to gain the means of supporting- his wife. (^) But a man of wealth is under obligation to maintain his wife according to his fortune, without regard to her lower situation in life before marriage. In this respect it is a Talmudic maxim : " The wiffe ascends with her husband, but she does not descend with him." That is to say, she is entitled to all the advattages of his stand- (1) Eben Ha-Ezer LXX. 3. 100 HUSBAND AND WIFE. ing in societ.y, without losing those which she enjoyed in her parental home. (^) Generally, the wife is to I'eceive her board in her hus- band's hpuse, at his table, but in the case of her lawful absence it is his duty to provide her with the necessaries ■ of life in that place where she abides. (^) A husl)and neglecting to maintain kis wife can be com- pelled by court to fulfill his duty. If he deserted his wife without making provision for her support, the court adjudicated to her an alimony from his property. (^) He is also liable for the refunding of .amounts which she, in his absence, borrows for her actual support, on his account, though he had given public notice not to trust her. (*) But if a third man, of his own free will, furnishes a married woman, in the absence of her hus- band, with the necessaries of life, he has, .to use the rab- binical phrase, " put his money on the horn of a deer," that is, he has lost his money, as he can hot maintain an action at law against the husband for the outlay. (^) (i) Talm. Kethuboth, p. 61. (i) Eben Ha-Ezer LXX. 12 and gloss. (3) Eben Ha-Ezer ibid. § 5, gloss. ^(J) Ibid., §§ 8 and 12, gloss. (J) Mislina Kethuboth XIII. 2. It is added there, that the priestly COURT in Jerusalem (probably a kind of court of equity) differed on this point, holding the husband to be liable. As an interesting parallel to this difference of view between common courts and courts of equity regarding a similar case, as treated iii modern times, we shall quote here the following from Bishop's Marriage and Diyorce II. 612, fourth edition : " Money may buy necessaries, but it ia not such in itself. Therefore, if a man lends to a married woman, whose husband, being under obligation to furnish her necessaries, negleqts so to do, money which she actually expends in this way, he can not maintain an action MARITAL DUTIES ASp EIGHTS. 101 The husband is not answerable for the wife's debts contracted before her marriage, nor for those which she incurred afterward without his authority. Nor is he ha- ble for her torts and crimes. If she have no separate property, all judgments against her for debts, torts, fines, etc., remain a claim against her, which she is to pay from her dowry when becoming a widSw or divorced, (i) The duty of conjugal cohabitation is legally, as well a& ritually and ethically, regulated 'in the Rabbinical Code. A continued refusal, on either side, regarding this duty, if not excused by sickness and circumstances, offers a ground for divolrce. (^) Concerning the duty of ransoming the wife in the case of her falling into captivity, it niust be borne in mind that the frequent invasions of Bedouins in the oriental countries and the continual wars in Europe during the Middle Ages made the express provision for such an eventuality quite necessary. The husband was in such at law against the husband for the money. " " * But in equity — that is, in that form of legal proceeding which is carried on in a court of equity, in distinction from a court of common law — the person who lends money to the wife with which to buy necessaries, can recover the money, on showing that it has been so expended in. fact." (1) Eben Ha-Ezer XCI. 4 ; Choshen MiShpat, chapter 349, 1.— It must be remembered that, by the Jewish Law, the husband is merely a usu- fructuary of his wife's property; hence he can not be chargeable for her debts, torts, fines, etc. It is different in the modern, especially the common law, in which the principle'is established by which " the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the matrimonial union." This principle vests in the husband what- ever personal property belonged to the wife before marriage, and throws upon him, during coverture, all the obligations of the wife, so that he is answerable for her debts before coverture, and liable for all the torts and frauds of her committed during coverture. Compare Kent's Comm. II. 144-150, (2) Kethub. 61-64; Maim. Ishuth XIV. ; Eben Ila-Ezer LXXVI. 102 HUSBAND AND WIFE. eventuality under obligation to ransom his wife, even at the expense of an amount far beyond that of her dowry. (^) The duty of providing for the wife's burial includes i\\so that of providing for a tombstcfne and for funeral solemnities according to his and h&r standing in so- ciety. (2) i. HIS LEGAL RIGHTS. § 57. The husband's rights are, by the Jewish law, the fol- lowing : 1. He is entitled to whatever she may earn by her labor and industry. 2. He is entitled to whatever she gains by chance. 3. He is entitled to the usufruct of all the property which she brought into marriage, as iier portion, and of the property she during her coverture /eceived by inherit- ance, donation, legacy or otherwise, 4. He becomes her sole heir on her death. His right to her earnings is regarded as the considera- tion for his duty of supporting her. Hence, if she, of her own free will, renounces her claim of "being supported by him, her earnings are her own and can be held free from tlie claims of her husband. But the husband can not compel her to live on her own earnings by such a settle- ment. (^) (1) Eben Ha-Ezer LXXVIII. 3. (i) Ibid. LXXXIX. (3) Eben Ha-Ezer LXIX. 4. MAEITAL DUTIES AND EIGHTS. 103 In this way the wife was protected against a husband squandering her earnings and against his niggardliness. Regarding his right to the usufruet of her property, and to the succession to her estate on her death, we shall speak further under the heading, " The wife's prop- erty." 0. THE wife's duties AND* EIGHTS. § 58. On marriage, the wife takes the domicil of the hus- band. If he afterward changes his domicil, she is to follow him, but she can not be compelled to follow him into a foreign country where a different language is spoken. She can also object to his removing to an- other place which in sanitary respects or in regard to comfort is inferior to her present abode. But if it is impossible for him to make a living in his former place of residence, it is her duty to follow him. C-) It is, in general, the wife's duty to manage the house- hold, to engage in the female work of domestic life, such as cooking, baking, sewing, etc. It belongs also to her duties to nurse her children, generally, herself. Even if able to keep many servants, she is nojt permitted to live in idleness, as "idleness leads to sin." Under all circum- stances, she has personally to perform certain services of loving care for her husband's ease and comfort. C^) The rights of the wife are implied in the husband's duties, treated of above. (1) Talm. Kethuboth, p. 110 ; Maim. Ishuth XHI. 13 ; Eben Ha-Ezer LXXV. (2) Kethuboth, p. 696; Maim. Ishuth XXI. r Eben Ila-Ezer LXXX. 104 HUSBAND AND WIFE. By the Jewish law, the wife does not succeed to her husband's estate on his death, but receives the portion which she brought into marriage, and besides, the dowry fixed in the Kethnha. As long as the widow does not claim the amount of her dowry, and as long as she does not remarry, she has the right to remain in her deceased husband's house and be supported by his legal heirs in the same way as she was accustomed during his life- time. (1) S. THE WIFE'S PROPERTY. §59. In the Rabbinical Law, the wife's property is divided into three classes, governed by differ eat rules : 1. Dotal property (Hebrew, Nedunja), that is, her portion, consisting in money, goods or estate, which she brings to her husband in marriage. The total value of this property was usually mentioned in the marriage deed, with the express or implied understanding that the husband be responsible for this amount. 2. Paraphernal property, that is, whatever she either brings in marriage above the dotal property, and which she reserves for herself under her own responsibility, or the property which she, during marriage, acquires by in- heritance or by gift, grant or bequest from any person other than her husband. 3. Her strictly private property, that is, property which her husband donated to her during marriage, or which a third person donated to her with the express (1) Maim. Ishuth XIX. 21 ; Eben Ha-Ezer XCIII. 4 and gloss. THE wife's property. 105 condition that it be exclusively for llgr own use for cer- tain purposes. (a) Dotal property vests in the husband as trustee for the wife. He is entitled, however, during marriage, t& take and use the rents, fruits and profits thereof. His are also its betterments. But he is -responsible for the loss, damage and deterioration of that proper iy. At the dissolution of marriage by his death, or by divorce, it is to be returned to her in that condition in which it was, or with that value which it bad at the time when vested in him. In contradistinccion to the second class, this property is termed, in the Talmudic. Law, Tson Barzel {pecus ferreum) — property of iron sheep, as it was like sheep, from which profit (the wool) is derived, and, on the other hand, it resembled iron, m so much, as its substance could not be destroyed nor its value deterio- rated; (I) Regarding the paraphernal property, the husband is likewise entitled to all the fruits and profits derived therefrom, but he is not responsible for its loss and de- terioration. Upon his. death, or in case of divorce, thi& property returns to her in that state hi which it is found at that time. The Talmudic term for such property is Nechse Me- lug — property of simple usufruct. (c) The property characterized as the wife's separate estate is beyond her husband's control, and the rents and profits thereof are not subject to his disposal. She is, however, not permitted to alienate the substance of prop- erty which the husband donated to hfer during marriage, as he is entitled to inherit it on her death, (i) (1) Eben Ha-Ezer LXXXV. 7. 106 HUSBAND AND WIFE. The wife being the owner, and the husband the usu- fructuary of the dotal and paraphernal property, it is not ^^ubject to the debts of the husband, npr liable to be taken in execution for her debts or damagps. Such property can be sold or transferred to third persons only with the joint consent of both husband and wife. The husband is permitted to sell his usufruct of that property, but for a limited time only. In any lawsuit against third persons concerning the substance of such property, the husband needs a power of attorney from his wife to act in her 'name. Such power of attorney is, however, not required where the action con- cerns the profits of the property only. (^) Upon the wife's death, the husband becomes, by the Talmudic Law, the sole heir of all her property, the dotal and paraphernal as well as her separate property. This refers, however, only to property of which she was in ac- tual possession at the time of her death, but not to prop- erty in expectancy, which falls to her descendants, or, in the absence of such, to her nearest relation. This Tal- mudic Law was modified in the twelfth century. Sev- eral distinguished rabbis of France and Lombardy, under the celebrated R. Jacob ben Meir (Rabenu Tam), en- acted the law providing that, when the wife dies childless within the first year after marriage, the whole amount of her dotal property is to be returned to her father or his legal heirs. To this the Jewish congregations of Spire, Worms and Mainz subsequently added the provision that, if the wife dies childless in the second year after marriage, half of the dotal, and, according to some au- (1) Eben Ha-Ezer, ibid., § 4. THE wife's property. 107 thorities, also half of the paraphernal property, is to be returned to her relations. This provision (termed nJpn n"ic) became, later, an established rule among the Ger- man Jews. (^) (1) The particulars concerning the wife's jproperty and the hus- band's right of inheritance are to be found in Eben Ha-Ezer, chap- ters LXXXV.-XCIl. See also Moses Mendelssohn's Ritiialgesetze der Judea betreffend Erbee/ui/Uni, Testamente und Ehesachen. Berlin, 17S7. DISSOLUTION OF MARRIAGE. A legally valid marriage is dissolved either — 1. By the death of one of the parlies, or 2. By divorce. CHAPTER XIV. DISSOLUTION BY DEATH. §60. In order to establish the dissolution of a marriage by death, so that the surviving party be permitted to remarry, death must be proved beyond any doubt. Great difficulties often arise in this respect in cases where, for instance, the husband died abroad, or where he was lost Ijy an accident. The difficulty in ascertaining the actual death of a person was naturally still greater in former times, when the means of communication and investiga- tion were not as developed as in our days. The Talmudic Law is very minute in its regulations providing for such cases. C-) (1) See Talm. Yebamoth, chapters X., XV. and XVI. ; Maim. Geru- sliin XII. 15— XIII. 29; Eben Ha-Ezer XVII. -S-SS. In the rabbinit:al provisions concerning tliis subject, only the case of the absent hus- band's death is considered, because he, on account of his usual pur- 108 EVIDENCE OF DEATH. 109 a. THE EVIDENCE OF DEATH. §61. The following are the leading principles of the rab- binical provisions regarding the evidence of death : The death of the absent husband must with certainty be proved either- — (1) by the testimony of persons who witnessed either his demise or his funeral, or (2) by an unmistakable identification of his dead body. The testimony to the death must be of such a nature as to exclude every possibility of mistake. A testimony based solely upon circumstantial evidence, or upon mere conjecture and presumption, is of no value. If, for in- stance, the husband was known to have been on board a ship which was wrecked at sea, his death is not suffi- ciently proved by this fact, as he might have been saved by another ship which was passing. In a smaller body of water, however, the boundaries of which are within the reach of the eyes, the evidence that the boat perished and no one on it was seen to be saved, is sufficient to establish the death. A report that the husband died in a battle, if not corroboiated by the evidence that he was actually buried, is no sufficient piroof to permit the wife to remarry, as in the confusion of a battle field a mere trance caused by severe woun(fe might have been mistaken for actual death. (^) suits, happens oftener to be abroad and on journeys. Besides, it must be remembered that the Talmudic La* still had polygamous institutions in view, in which the husband's death was of greater legal consequence than the wife's, in regard to a contemplated remar- riage of the surviving party. Compare Franhel's GrundUnien, p. 40, note 2. (1) Eben Ha-Ezer XVII. § 32. 110 MARRIAGE DISSOLVED BY DEATH. h. THE WITNESSES TO THE DEATH. § 62. Concerning the witnesses testifying to a husband's death, the Talmudic Law is not as strict as in regard to testimony in general. In this respect, there is a rab- binical maxim : " Some allowance is to be made in favor of the unfortunate woman, who otherwise would have to remain in eternal widowhood." {^) While in all criminal and civil cases, and in all matrimonial affairs, it was an established rule of law that " everything must be proved by two witnesses," the testimony of a single witness was considered sufficient in this instance, :since in most cases it would be impossible to find two witnesses to prove the death of the absent husband. Besides, the one witness could not be presumed to testify falsely in this instance, as he must expect that the possible return of the still living husband would clearly demonstrate the falsehood of that testimony. (2) Also the testimony of a woman, or of near relatives, and of other persons otherwise regarded as incompetent witnesses by the Rabbinical Law, can be admitted to establish the death of an absent persoii. Excluded from such testimony are, however, persons mentally deranged, and besides, such persons as are presumed to have a spite against the unfortunate woman, since they might intend to bring her into difficulties by a false report of her hus- band's death. ,(3) (1) ^iDI nS irpx S;i.r:7 nVM. Talm. Yebamoth, p. 88. (2) Maim. Gerushin XII. 15 and XIII. 29. (3) Talm. Yebamoth, p. 113; Maim. Gerushin XII. 16; Eben Ha- Ezer XVII. 4. EVIDENCE OF DEATH. Ill Under certain circumstances, even hearsay evidence, as well as written statements, though otherwise not accepted in the Jewish law, are admitted as sufficient proof of a person's death. C. CONSEQUENCES OF A PREMATURE REMARRIAGE. § 63. If the husband whose death had been believed returns after his wife's remarriage, she is to leave her first hus- band as well as the second one. Besides, she forfeits her dowry {Kethuha) from the first and the second hus- band, and her children born in that second marriage are regarded as born in adultery, (i) In view of these disastrous consequences of a prema- ture remarriage, the wife had to be Very careful not to (1) Tal. Yebamoth, p. 87&; Maim. Gerusbin X. 5; Eben Ha-Ezer XVII. 56. — The supposed evidence of the fir^ liusband's death hav- ing thus been proved to be false, it did not dissolve the first marriage ; hence the second marriage is void, and to \>4 regarded merely as an adulterous connection. But neither can the first marriage be continued, as by the Jewish Law no man is permitted to continue to live with his wife after her having committed adultery (see above, p. 27). Although the law just quoted refers only to voldntaky adultery, still its rigor was also applied to the present case, in order to punish the woman for her over-hasty remarriage. In American courts it has been ruled that, lo justify a second mar- riage by the wife, there must be a general report of the husband hav- ing died at some particular place, and by some particular means,, as by shipwreck, which the report specifies. By the statutory law of some of the United States it is provided that, if a husband or wife, upon any false rumor, in appearance well founded, of the death of the other, when such other has been absent seven years (according to some statutes, five, or even two years), shall marry again,, he or she shall not be liable to the pains of adultery (or bigamy) ; but the second marriage is under all circumstances void ; the former mar- riage, however, remains in force. See Kent's Comm. II, 79; Bishop's Marriage and Div. (fourth edition), I. §§ 298 aqd 710. 112 MARRIAGE DISSOLVED BY DEATH. contract a second marriage before having used every means to ascertain, beyond any doubt, that her former husband was actually dead. For this reason, the state- ment of a wife before a court that her absent husband died abroad was accepted so as to permit her to enter a new marriage. Her statement was, however, not credited, in case she was known to have lived "in disharmony and ■quarrel with her husband, or where her statement ap- peared to rest on mere conjecture, (i) d. IDENTIFICATION. §64. Regarding the identification of the corpse of one who Tiad been killed by an accident, the Rabbinical Law is very strict. Only infallible signs on the body found, such as the distinctly recognizable features in the not yet decomposed face, or remarkable abnormities of the limbs, are admitted as proofs of ideHtity. Other marks on the body, or garments and objects found on the same, are not regarded as sufficient to establish the identity. (^) 6. ABSENT AND NOT HEARD OF. § 65. The circumstance of a person being absent for a long period of time without having been heard of, is by the Jewish law no evidence of his death, such as to entitle the wife to remarry, since nothing but actual death, or (1) Talm. Yebamoth, p. 114b; Maim. Gerusllin XIII. 1-5; Eben Ha- Ezer XVII. 43. (2) Maim. Geruahin XIII. 21, 22; Etaen Ha-Ezer XVII. 22-28. EVIDENCE OF DEATH. 113 a divorce by the husband, can dissolve the marriage tie. (1) /. RESOLUTIONS OF RABBINICAL CONFERENCES. § 66. Modern rabbis are generally of the opinion that the Talmudic rules concerning the evidence of death are somewhat obsolete, being in some respects defective and insufficient foi' our time, in which the ways and means of ascertaining the death or the whereabouts of a lost person, or of establishing the identity of a found body, o replaced by the vernacular, and that in the case where a Jewish marriage has been dissolved by the decision of competent courts, and the husband refuses to submit to (1) Especially by the late Dr. Z. Frankbl, in his Zeitschrift, vol. I. 132 THE JEWISH DIVORCE LAW the act of the Jewish Oet, the wife stjall be permitted to remarry without such a document. These motions were referred to a committee for report in the expected third Synod, which, however, has not yet been convened. h. PROPOSITION SUBMITTED TO THE PHILADELPHIA CONFERENCE. § 79. More decided was tlie Rabbinical Conference of Phila- delphia ( 1869 ) ; it entirely indorsed the views which HoLDHEiM had advanced. Among other propositions submitted to this Conference by the late Rev. Dr. Ein- HORN was also one regarding Divorce. It reads substan- tially as follows : " The ESSENTIALLY clvll character of the Jewish form of con- cluding marriage and of divorce has been settled beyond ques- tion by theological researches, (i) and the highly important ronsequences resulting from the two acts conflict with this character just as little as, for instance, the religious prohibi- tion of theft conflicts with the nature of purchase or heritage, liy which property is acquired, and which certainly belongs to the forum of civil law. The marriage relation in itself is, in- deed, even from the standpoint of reform, a religious institu- tion, and so is certainly also the entrance into that relation a RELIGIOUS act ; this view, however, can npt deprive the means BY WHICH SUCH A RELATION IS ENTERED UPON — the forms of acquiring a certain person for such a union — of their civil character; and the Bible nowhere speaks of any religious forms with reference to the act of concluding marriage. But the religious consecration of marriage, an institution to which religion attaches such high importance, could not and should not be omitted. Divorce still more clearly appears as f^ civil (i) Especially Holdheiji's Autonomic der Rabbinen. IN MODEKX TIMES. 133 act, recognized only, if not merely tolerated by religion. The Bible does not mention the Bill of Divobce (Dent. xxiv. 1) as a subject of positive command, but only incident- ally as a written instrument which the husband has to exe- cute and to deliver to the wife he intends to dismiss; and though it PRESUPPOSES an immorality in the woman {Ervath dabar) as the cause of dismissing, it by no means commands the dismissal, and confines itself only to prohibiting the remar- rying of the divorced woman after she had contracted another marriage which again had been dissolved. Rabbinical Juda- ism also, though in various cases considering divorce a religious duty, could not remove the civil character of divorce and intro- duce a religious form for that act. It prescribes no benedic- tions for it, as it does for the act of concluding marriage. The concluding words of the bill of divorce (^KiB"! HE'D m — ' Ac- cording to the Law of Moses and Israel'), the high antiquit}' of which is by no means established beyond doubt, confer in nowise a religious character on the act, as indeed some authori- ties maintain that these very words were anciently in use also in other Jewish documents which had no religious character at all. (1) According to the opinion of R. Simon, a bill of divorce executed by a non-Jewish court has full force. (Gittin, 106.) And how could religion, if not raising its -voice in protest, assume in this matter any other but a passive position ? Where two persons unite in community for life, it is the function of religion to offer consecration, sanctification and blessing, as God consecrated and blessed the covenant of the first couple. But if the holy bonds are severed, religion can only tolerate the act in sorrow and silence ; It may offer con- solation to the innocent sufferer or rebuke .the conscience uf the guilty, but certainly can not invest the act with its conse- cration. Religious forms of divorce, are without root in the soil of our history, and can but be artificial. I therefore do not believe that it is the intention of this Conference to create a religious consecration where none ever existed and where there is nothing to consecrate. (i) Compare Maimonides' and Heller's Oommentary tIiKhnaJ;i- dayim IV. 8; Toscphoth to Baba Bathra, p. l&2a, S. v. 'Z"?, and Nissiia to Gittin, 106, and Mishna Gittin, 856. 134 THE JEWISH DIVORCE LAW " But it may appear to us as an imperious duty to recog- nize, IN THE NAME OF RELIGION, tlie dissolution of Jewisli marriages, which, according to the Rabbinical Code, is effected, without a judicial process, by the parties themselves, under the [supervision and direction of an expert scholar (chacham), as an act exclusively belonging to the function of the judicial authorities of the State, and to declare the so-called ritual Get, in all cases, as of no effect. " It is different, however, with the grounds of divorce. On this point Judaism must reserve to itseff the examination of the provisions of the State laws. Before the forum of the law of God, "which regards husband and wife as one person, divorce can be justified only on the grouAds of an actual dis- turbance of the moral basis of conjugal life, as, for instance, by conjugal infidelity, criminal abandonment of home, and the like, whether on the part of the husband or the wife. As, according to our religious views, softie of the provisions <-if the Rabbinical Code must be rejected, for instance, those which regard childlessness or certain Idathsome diseases, or even the engagement in a disgusting trade, as sufficient grounds for divorce * * * * ; so .the State law may sometimes decree the divorce on grounds which are insuffi- cient to religion, and the latter may be forced to record its veto against the dissolution of the holy covenant. In ques- tions involving one of the most important institutions, relig- ion must not unconditionally and blindly submit to the State law, and would, in refusing its sanction, when requested to remarry people thus divorced, only protect its good right without trespassing upon the sphere of the State. Such a conflict were, of course, to be regretted ; but it must not be forgotten that its anticipation will in many cases prevent the de^iire for obtaining a judicial divorce. * * * . * " It Ta&Y, however, be appropriate for the rabbi, in such eases, after a close examination of the contents of the judicial document of divorce, and after having approved of the causes as religiously sufficient, to certify to the fact, Mith the concur- eence of some of his colleagues." (') (1) Protokollc, p. 56-58. IN MODERN TIMES. 135 G. RESOLUTIONS PASSED BY THAT CONFERENCE. § 80. This proposition was elaborately discussed in the Con- ference, which, in general, agreed with the views expressed itherein. Two dissenting members (^) made a motion to the effect that the ritual Get' should not be entirely abol- ished, but only modified according to the views and cir- cumstances of our time, in the way as proposed by the progressive rabbis in Germany. But the motion was lost. The same was the case with the motion from an- other side, (^) to strike out that passage which reserves to the rabbi the right to examine the grounds of a divorce -decreed by the civil courts. Finajly, the following reso- lution (') was passed, which essentially embodies the views •expressed in the submitted proposifion : "The dissolution of marriage is, on Mosaic and Rabbinical .grounds, a civil act only, which never received religious conse- cration. It is to be recognized, therefore, as an act emanating -altogether from the judicial authorities of the State. The so- •ealled ritual Get is in all cases declared null and void. " The dissolution of marriage, pronounced by a civil court, is also fully valid in the eyes of Judaism, if it can be ascer- tained from the judicial documents that both parties con- sented to the divorce ; where, however, the court issues a decree against one or the other party, by constraint, Judaism recognizes the validity of the divorce then only, if the cause ^assigned is sufficient in conformity with the spirit of the Jew- ish religion. It is recommended, however, that the officiating rabbi, in rendering a decision, obtain the concurrence of com- petent colleagues," (* ) (1) The Rev. Brs. Sonneschein and Miblzixer. (2) The Rev. Drs. S. Hirsch and Ohron*k. (3) On motion of the Rev. Dr. S. Adlek, (^) Protokolle,%. 26-36. 136 THE JEWISH DIVOHCE LAW il. EXPLANATORY REMARKS TO THE RESOLUTIONS PASSED. § 81. One or two points in the above resolution may here be further explained. In declaring that " the dissolution of marriage, pronounced by a civil court, is also fully valid in the eyes of Judaism, if it can be ascertained from the judicial documents that both parties consented to the DIVORCE," the resolution does not refer to a mutual agree- ment of the parties to be divorced, but to a final consent on both sides, in a case where one of the parties, on some complaint, petitions for a divorce, and the other party, without contesting the allegations, is willing to ac- cept the divorce ; for mutual consent of the parties, with- out proved complaints from either side, is, by the laws in the United States, not sufficient for divorce. {}) Regarding the reservation made in this resolution, that the rabbi, before remarrying a divorced party, is to ex- amine the causes for which the judicial divorce has been granted, it appears from the proceedings of the Confer- ence that such a reservation was necessary in view of the great laxity in granting divorces which notoriously exists ill some parts of this country, especially in Territories and States where, in addition to the specified causes, a general discriminating power is vested in the courts. There it not rarely occurs that a judicial divorce is obtained by one of the parties on very loose grounds, -and sometimes even without the knowledge of the other party. In such cases it is certainly the duty of the rabbi to refrain from giving religious sanction to a second marriage, where the former one was so frivolously dissolved. ^ ^ (1) See ProtokoUe, p. 36, note ; compare, also, above, p. 121, note. IN MODERN TIMES. 137 e. coNCLUsio:^. In conclusion, we must repeat Here what has already been stated above, in the chapter on the Sources op the Jewish Marriage Law, that the resolutions and decisions of modern Rabbinical Conferences and Synods have not yet been generally accepted as auth&ritative by the Jewish community. Even many of the pfogressive rabbis, both in this country and abroad, have yet some hesitation in acting upon them in tlieir official capacity, so long as these resolutions have not been indorsed by a general Synod, to- be convoked by a majority of the* congregations. The strictly conservative rabbi, who regards the dicta of the Shulchan Aruch as the ever-binding law in Israel, will, of course, not yield even to the authority of such a Synod, and consequently refuse to sanction a second marriage of a woman who has been divorced by a judicial decree without having obtained a ritual Get from the former husband. I THE END.] '*' INDEX. PAGE. Aaronites or Cohanim, meaning of, - - - - - 59 Special Prohibitions concerning the Marriage of, - 59 Resolutions passed regarding the Prohibitions, - 59, 60 Abandonment, Ground of Divorce, in Modern Laws, - - 127 Abba Areka, Protesting against giving Minor Daughters in Mar- riage, --.-.- - 73 Absent and not heard op, - - - - - 112 Adultery, treated in the Mosaic Lavf as a Capital Crime, - 20 The Wife's, can not be condoned, but necessitates a Divorce, 27, 124 Persons guilty of, not permitted to marry the Partner of their Crime, ------.-42 Strong Suspicion of. Cause for Divorce, •- - - 122 Ground of Divorce in Modern Legislation, - - - 127 Affinity. See Consanguinity. Age, Legal, for Contracting Marriage, - - - 71 and note. Agent, Betrothal through, formerly admitted, - - - 80 Bill of Divorce delivered by, .... 12s Agreement, of Parties, sufficient for Divorce, according to Jew- ish, but not according to the Laws in the United States, 121 and note. Aeusin, one of the Rabbinical Terms for Betrothment, - 7(i AuB on Intermarriage, ------ 50 Aunt, Marriage of Nephew with, prohibited, - - 35,38,39 Authority of the Modern Rabbi in regard to Marriage and Di- vorce defined, - - - - - - 22, 84, 94, 130 Autonojiy, Jewish, in all Matrimonial Affairs, "ceased in Modern times, - - - - - .- - 22, 93, 130 1.39 140 INDEX. B. FASE. Baldachis. See Chuppa. Barrenness, AVhether a Ground of Divorce, - - - li3 Be-ah, Term for a certain Primitive Mode of" contracting Mar- riage, - - - - - - - "78) note. Benaey, De Hebrxorum Leviratti, - . - - note, 55 Benediction of Betrothal, - - b - - 82 Of Nuptials, 84, 85, 90, 93 Beechath Akusin, meaning Benediction of Betrothal, - S3 Berchoth Nissu-in, meaning Benedictions of Nuptials, - - 84 Beteothment, Its Nature in the Rabbinical Law diflerent from that' in Modern Law, ...... 7(i How effected, ----■„-- 77 sq. Former Interval between Betrothal and Nufitials, - - 82 Combination of both Acts, - - - - - 85, 90 Bill of Divorce, Rabbinical Rules concerning, - - - 12s Form of, 129 Resolutions of the Philadelphia Conference, concerning, - 135 Bishop on Marriage and Divorce, 8, 26, 34, 37, 68, 73, 100, 111, 121, 127 Brother's Wipe, Marriage with, prohibited, - - - 35 Former Exception in Case of Levirate, . - - 55 C. Causes OP Divorce, By the Jewish Law, - . . 121-124: Considered in Modern Laws, - - . _ 125-127 Chalitza, Meaning of, - - - 55 Biblical Precept, ------- 56 Modern View of, ----- - 57 Resolutions passed concerning, - - - - 58 Change op Religion, A Cause for Divorce, - - - 122, 123 Children, Religious Status of, in Mixed Marriages, - - 97 Chuppa, Meaning of, - - - - - - 83 Representation of, ------ 85 Not generally used in Our Time, - - - - 90 Civil Marriage, ------- 93 Synodical Resolutions concerning, - - - - 94. Code of the Rabbinical Marriage Laws, when and by whom estab- lished, -----... 22 Modifications of its Provisions in Modern Times, - - 23 Cohabitation, ----- 99,101,122,124,125 Combination of Betrothal and Nuptials, ... g5 Conditional Consent, - - - - - 67, 68 INDEX. 141 PAGF.. Condonation of Wife's Proved Adultery not admitted in the Jew- ish Law, - - - - - - - - 27, 1-4 Conferences, Rabbinical, modifying some Laws of the Jewish Marriage Code, ------- 23 Their Resolutions not generally accepted, - - - 24, 137 Conjugal Rights and Duties, - - - - 98-104 consanguisity amd affinity. ch. vj - - - - 33 Prohibitions of, based on Morality ; hence binding upon all Nations, -------- 3j Biblical Degrees of, - - - - - - 35 Their classification, - - - '- - - 41 DiflFerent Reasons for the Prohibitions, - - - 3g Talmudical Extensions, - - - - - 31, 38, 41 The Guiding Principle of the Extensions, - - 37, note. Marriages within the Bibliflp,! Degrees void ; within the Tal- mudical, voidable, ------ 33 Consent of Parties : Essential in contracting JIarriage, - - - - 66 But mere consent not sufficient ; it must be accompanied by a certain legally established act, - - - - 77 Consent OP Parents, whether required for Marriage, - - 69 Consequences of a Premature Remarriage, ... m Contract op Marriage, differs from other Contracts, - 24, 25 Cousins, Marriage between, permitted, but in Ohi6 unlawful, - 40 and note. Crime, Committance of, as Ground of Divorce in fhe Jewish Law, 123 In Modern Law, ------ 127 -Cruelty, as Ground of Divorce, in the Jewish Law, - - 123 In Modern Law, ------- 127 Cup op Wine, Custom of, at the Marriage Ceremdny, - - 85, 93 D. Deaf and Dumb, the Marriage of, - - - 70, 71 and note. Death, Dissolving Marriage, - ' - - - - 108 Evidence of, ------ 109-114 Deceased Wipe's Sister, Marriage with, permitted, - 39 Where not permitted, . - - - 39, note 1 Degrees : Within which Marriage Prohibited, - - - 33-38 Biblical, 34-36 Talmudical Extensions of, - - - - - 37, 38 Not Objectionable Degrees, - - - - -39,40 Table of Prohibited, 41 122, 123 123 81, 122 12?, - 10& 115 - 116 116 11!> - 120 120 121 -124 125 -127 128 129' 130 -187 142 INDEX. Deseetion. See Abandonment. Diseases, Certain, as Ground of Divorce, - Disgusting Trade as Ground of Divorce, DisKEGAHD of Eitual Lavi^s, - - - - - Dissoluteness of Morals a Cause for Divorce, - Dissolution of Marriage, - - - - - Divorce, Ethical View of, , . _ . . Necessarily admitted by Law, - - - - Mosaic Regulations, ------ Eabbinical Provisions to prevent Inconsiderate Divorces, Kestriction of the Eight of , - - - Different Kinds of, ----- - Causes of, in the Jewish Law, Modern Legislation concerning, ... - Bill of, - - - - - The Jewish Law of, in Modern Times, Divorced Woman, When prohibited to be remarried to her Former Husband, -------- 42 Lapse of Time required before contracting af New Marriage, 61, 62 Dotal Property, ------ ]^04, 105 Doubtful BBTKOTiurBNT, ------ 81 Dowry, 30, 86, 120, 121 Forfeiture of, ------ - 120 DusCHAK on the JMosaic-Talmudic Marriage Law, - - 7, note. On Marriage of the Deaf and Dumb, - - - 71, note. E. Eben Ha-Ezer, Name of the Eabbinical Code pf Marriage Laws, 22 Einhorn on Intermarriage, ------ 51 Eitual of Wedding Ceremony, - - - - 93, note. On Divorce, 132-134 Engagement, - - - - ^ - - - 77 Error and False Eepresentation, Whether affecting the Mar- riage Contract, ------- 59 Ethical Doctrines, Distinction between, and IjAw, - - 13 Ethical View of Marriage, ..... i^sq. Of Divorce, -----.. 115 Evidence op Death, Eabbinical Eules concerning, - - 109-112 Resolutions of Modern Eabbis concerning, - - 1 13, 114 Extensions, Rabbinical, of the Prohibited Degrees, - - 37, 38 INDEX. 14o F. PAGE. False Representation, whether aflfecting the Marriage Contract, 69 Force, Consent obtained by, ----- qq Form op Marriage, not fixed in the Mosaic Law, - - - 20 But established in the Talmudic Law, - - - 21, 75 In Ancient Times, Chap. X. - - - - - 75-89 In Modern Time, Chap. XI. ----- 90-93 Form of Kethuba, ------- 87 Form op the Bill of Divorce, ----- 129 Formula of Betrothment, - - - - - - 78, 79 Of the "Wedding Ceremony, ----- 92 Frankel, Z., Grundlinien des mosaisch-talmudi^clien Ekerechts, 7, 26 (note); 73, 79, 95, 109, 113, 121 G. Gaonim (title of the Highest Authorities after the Close of the Talmud; modifying some Provisions of the Talmudic Law, - 21 Geiger, on Eeforms needed in the Jewish Maniage Law, - 23, note. On Intermarriage, ------ 50 On Chalitsa, - - - - - - - 58, note. On the Eitual Get, ------ 131 Gerschom, Celebrated Eabbi (eleventh century-) interdicted Po- lygamy, Eestricted the Husband's Right of Divorce, Gekushin, name of Maimonides' Treatise on Divorce, Get, the Talmudic Term for the Bill of Divorce, GiTTiN, name of the Talmudic Treatise on Divorce, Gutmann, on Levirate Marriage, - - •- - H. Habitual Drunkenness, a Cause for Divorce in Modern Legisla- tion, ------- Hamburger, Talm. Encyclopsedia, HiRSCH, S., on Intermarriage, HocHMUTH, on Marriage of the Deaf and Dumb, Holdheim, on Reform of the Jewish Marriage Law, On Intermarriage, On Divorce, ------ HuEBScH, on Intermarriage, - . - - Wedding Ritual, - - - - - Husband and Wipe, ----- Husband's Duties, - - - - His Rights, - - - - T, - - 30 - 120 - 21 - 12s 20, note. 23, note. ;isla- - 127 128, note. 52, note. - 71, note. 23, note. - 52, note. 131 - 97, note. 93, note. 98-107 98-101 - 102 - 112 TO 123, IL'7 95 i- - 123 127 33, 124 72-74 70 144 INDEX. I. Identification, Rabbinical Rules concerning, Idiots, incompetent to contract Marriage, III Treatment, as Ground of Divorce, . - - Illegitimacy, not regarded in Hereditary Succession, Impediments to Makriage. See Prohibited Mai^riages, and Quali- ficalioni to contract Marriage. Impotesce, a Ground of Divorce in the Jewish Kaw, In Jlodern Laws, - - . i . - Incestuous Marriages, are null and void from the beginning, IsPANT Marriages in Former Times, . - - - Insane Persons, incompetent to contract Marriage, Insults, as Ground of Divorce, ----- 122 Intermarriage, or Mixed Marriages : Biblical Prohibition to intermarry with Certain Nations, - 45 The Assigned Reason applicable also to Other Nations ; hence the Rabbinical Extension of the Prohibition to Gentiles in General, - - - - - - -40 Christian Emperors interdicting Intermarriage, with Jews under Penalty of Death, ----- 46 The Question of Intermarriage submitted to the French San- hedrin by Napoleon I. ; Evading Answer of the Sanhedrin, 47 The Question before the Braunschweig Rabbinical Confer- ence, ^-------48 The Decision not indorsed by the Augsburg Synod, ibid., note. Weighty Reasons against Intermarriage, - - - 49 Opinions on the Subject : Philippson's, ------- 43 Geiger's, .-.-"..- 50 Aub's, -------- 50 Einhorn's, ----- - 51 Wise's, 52-54 Interval between the Act of Betrothal and Njiptials in Former Times, -------- 82 Intoxication, when invalidating the Marriage Contract, - 70 Ishuth, Name of Maimonides, Treatise on Marriage, - - 21 IssERLES, Kabbi Moses, Glossator to the Rabbinical Code of Mar- riage Laws, -------- 22 J. Jastrow and Szold, Wedding Ritual, - - - 93, note. Jurisdiction of Jewish Courts in Matrimonial Affairs abolished in Modern Times, - - - - - - 22, 130 IXDEX. 115 K. PAGE. Kalisch, M., on Marriage, - - - -* 7, 26 (note), 39 Karo, Eabbi Joseph, author of the Rabbinical Code, - - 21 Kaseph, meaning a Piece of Money, one of the TTo^mer Means of contracting Marriage, ------ 78 In Later Times, replaced by tiio Wedding Ring, - - 79 Kbthuba, Meaning and Purpose of, ' - - - 85, 86 Form of, - - 87 Former Importance of, - - - - - - 88 Why unnecessary in Our Time, . . , - gg Kethuboth, Name of tlie Talmudic Treatise on Dower and Mar- riage Settlements, - - - - - 20, note. KiDDusHiN, Term for Betrothal or the Act of contraeting Marriage, 27, 76 Name of one of the Talmudic Treatises on Marriage, - 20, note. KoHBN, or Cohen, meaning a Descendant of the Priestly Tribe, identical with Aaronitc, ----- 59^ gy L. Landsbergee, on the Custom of abstaining from celebrating Mar- riage between Pasach and Shabuoth, - 7 - 64, note. XiAW, Distinction between, and Ethical Doctrine, - - 13 Sources of the Jewish Law of Marriage, - - 20-22 Legal View of Marriage, . . . - . 25 Levirate, meaning of, ----- 55 -Levitical Degrees, meaning of, - . - . 30 1,o:e-w, Tjeojiold, EheTechtUche Studieii, - - 7, 20 ^note), 79, 80 Lucid Intervals, Marriage contracted in, valiil. .- - - 70 XuNACY, an Impediment to Marriage, - - - - 70 M. Maimonides, Rabbi Moses, author of a Code of the Talmudic Laws, _-...... 21 Mamzer, Meaning of the Term, ----- 43 Prohibition concerning, - - - - - 43, 44 The Offspring of, 96 :Maeital Ddtibs and Rights, - - - - 98-104 Marriage, its Importance and Sacredness, - ... 13 Ethical View of, - - - - » - - 15 Legal View of, ------ 05 Is more than a mere Civil Contract, - - - - 26 Prohibitions concerning, ----- 33 When void and when voidable , - - - 33, 124 Qualifications to contract, - ^ - - - gg 146 INDEX. PAGE. Form of concluding, ------ 75 Consummation of, ----- - 83 Modern Mode of solemnizing, - - - - - 00 Jewish Marriage placed under the Authority of the Laws of the Country, ------- 94 Civil Marriage, - - - - - - 93, 94 Dissolution of, - - - - - - - 108 Markiage Settlements, . - . - §6, 88, 89 Mental Capacity, an Essential Requirement for contracting Marriage, - - - - - - - 66, 70 Me-un, meaning of the Term, ----- 72 MiNOE, when regarded as, - ' - - - -71 Marriage contracted by, void, ----- 71 Minoe Dauqhtee, Exception formerly made in:favor of, - 72-74 Mixed Marriage. See Intermarriage. Religious Status of Children in a, - - - - 97 Modern Mode of Solemnizing Marriage, - - - 90-93 Modification of the Jewish Law of Marriage and Divorce, 22-24 Monogamy and Polygamy, Ch. IV. . _ _ . 28-32 See Polygamy. Mourning, a Temporary Impediment, - - - - 63 N. Neohse Melug, Meaning of, - - - - - 105 Nedunja, meaning Dotal Property, - . . - 1Q4 Nephew, prohibited to marry his Aunt, - _ _ 35^ 3g Niece permitted to marry her Uncle, - . - . 3(> Nissu-iN, Hebrew Term for Nuptials, - - - - 83 Not Objectionable Degrees, - - - - - 39, 40 Nuptials, Essential Ceremonies of, - - - - - 8S Religious Ceremonies of, - - - - - 84 The Joint Act of Betrothal and Nuptials, - - - 85 Ceremonies of, in Modern Times, . - - - 90-93 O. Obstructive Days for celebrating Marriage, - - - 63-65 OiTSPEiNQ of Lawful and Unlawful Marriages, - - 95-97 P. Paraphernal Property, meaning of, - - - - 104 Permitted Degrees, - - - - - - 39, 40 Philippson, Dr. Ludwig, on Intermarriage, - - - 48 On the Principle underlying the Prohibited t)egrees, 39, note. INDEX. 147 PAGE. PoLYQAMY, contravening the Will of God and'.the De.sign of l\Iar- riage, --------- 16 Prevailing among all Oriental Nations, it was tolerated by the Mosaic and the Talmudic Laws, but restricted and never very common among Israelites, - - ■ , 28-30 Was regarded as Incompatible with Domestic Peace and Hap- piness, ------- 29, note. Expressly interdicted by a Rabbinical Synod under Rabbi Gershom, in the eleventh century, - - - 30 Resolutions passed by the Philadelphia Rabbinical Confer- ence concerning Polygamy, - - - - - 31 Not directly condemned in the New Testament, but prohibited by the Laws of Justinian, and since regarded by all Civil- ized Nations as a Punishable Crime, - . - 32 PEEGXANt Y, a Temporary Impediment to Marriage, - - 62 Pkiok Maekiage, undissolved, how affecting a New Marriage Con- tract, ------ 31^ 111 and note. Prohibited Marriages, ----- 33-60 Prohibited Degrees. See Degrees. Property, Wife's, ------ 104-107 PuBEKTY, Age of, when assumed in the Jewi^ Law, - - 71 In the Common Law, ----- Ibid., note. Q. Qualification's required to contract Marriag$, - - - 66 Of Witnesses, 81 R. Rabbi. See Authority. Rabbinical Conferences, modifying the Jewish Marriage Law, 23 Refusal of Connubial Rights, as Ground of Divorce, - - 122, 124 To follow to another Domicil, ----- 122 To maintain the Wife, as Ground of Divorce, - - 123, 127 Resolutions, passed by the : Braunschweig Rabbinical Conference, - - - 48 Jewish Synod of Augsburg, - 58, 60, 62, 65, 81, 92, 94, 114 Philadelphia Conference, - - - 31, 58, 59, 92, 113, 135 Saalschubtz, Mos. Eecht., ----- 7, 117 Sabb.<.tii and Fe.stivai.s, Marriage not perinil,ted to be contracted on, --------- Go Sanhedkin, French, Declaration of, concerning Intennaiiiat,'e, 47 14S INDEX. PAGE. y.vxiTAEY Considerations, Divorce on accoupt of, - - 12.5 SiiAMMAi AND HiiXEL, Schools of, differing 'in the Interpretation of the Mosaic Law concerning the Causes of Divorce, - - 119 Shidduchin, Babbinical Term for Engagement, - - 77 SH'TAR,«i:ieaning a Writing, - - - - - 78 One of the Former Means of contracting Marriage, - 79 Shulciian Arucii, General Name of R. Jqseph Karo's Code of Rabbinical Laws, - - - * - - - 21 Solemnization- of Marriage in Modern Time, - - - 90-93 SoPHERiM (the Scribes) , enacting New Regulations of the Marriage Law, 21 Extending the Prohibited Degrees, - - - - ;!.3, 37 Spadones, Prohibition concernig, -,---- 44 Step brother and Step-sister, Marriage between, whether per- mitted, . - - - I - - - 40 Suckling Child, a Temporary Impediment'to the Mother's Mar- riage, -------- g2 Synodical Resolutions concerning this Impediment, - - 62 Suspicion, Impediments to Marriage on account of, - - 43 Synods, Modern, modifying some Provisionfe of the Jewish Mar- riage Law, --------23 T.— Y. Table of Prohibited Degrees, ----- 4x Tempokaky Impediments, - . . _ . qi TeKANOTH ShUM, ---,-.- 1Q7 Tzon Piarzel, meaning of, - - - - - 105 Uncle and Niece, marriage of, permitted, - - - - 39 Violation op Moral Decency, as Ground of Divorce, - 122 Void and Voidable, Distinction between, regarding Marriage, 33, 34 and note, 66, 124 W— Y. ■\Vechsler, B., on the Formalities of the Act of Divorce, 23, note. Wedding Ring, Origin of, - ■ - - - 79 and note. Symbolical Meaning of, - - -• - go and note. One or two Wedding Rings, - - - - - 91 Resolutions concerning, - - -* - - - 92 Widow, Lapse of Time required before her remarriage, - 61, 62 Widower, Lapse of Time required before hiff remarriage, - 63 Wife's Duties and Rights, - . - . . X03 Property, ------- 104-107 INDEX. 149 PAGE. Wise, I. 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