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The levirate proper not found in Greece.

The levirate, or marriage with deceased husband's brother, seems to have had no place in Greek family law. The wife was of no kin necessarily to the husband; and so it would not tend to strengthen the transmission of blood if the next of kin married the widow on taking the inheritance of his relative deceased without issue. The wife in Greek law could not inherit from her husband, whose property went to his father's or mother's relations; and only when it became a question of finding an heir to her son, and failing all near paternal kinsmen, could the [pg 028] inheritance pass through her, and then as the mother of her dead son, not as widow of her dead husband. Even then, being a woman, she had no right of enjoyment, only of transmission. She could only inherit on behalf of her issue by a second husband, and failing her issue the inheritance would pass to her brothers and so on. In Greece the claim upon the δαήρ (Latin levir) for marriage seems to have begun with his brother's daughter, not his brother's widow.

The widow returned to her guardian.

The childless widow on the death of her husband had to return to her own family or whoever of her kindred was guardian (κύριος) of her, and if she wished, be given again in marriage by him.65

The woman at Athens even after marriage always retained her κύριος or guardian,66 who was at once her protector and trustee. He was probably the head of the οἶκος to which she originally belonged—her next of kin—and had great power over her.67

A case there is68 where the heir to the property also takes the wife of the previous owner; but in this case the husband may have been κύριος of his own [pg 029] wife, and so could bequeath, or give her away to whomever he liked.69

In the Ordinances of Manu, the limitations of the levirate are very strictly defined.70 In the case of a man leaving a widow, she must not marry again, or she lost her place in heaven by his side.

But if she was childless, the next of kin of her husband must beget one son by her; he did not marry her, and his connection with her ceased on the birth of a son.

Marriage of near relations.

The laws of Manu otherwise are strict against the marriage of close relations; a restriction not found in Greece.

Isaeus71 mentions that it was thought quite natural for a man to marry his first cousin in order to concentrate the family blood, and prevent her dowry or whatever property might come to her from going outside his οἶκος, and we know that even marriage with a half-sister (not born of the same mother) was not forbidden.

There are more instances than one in Homer of a man marrying his aunt, or niece.

The nearest resemblance to the levirate in Greece is the occasional custom at Sparta, mentioned already, of a wife being “commissioned” to bear children by another man into the family of her husband. But this exists in Manu, side by side with the above-mentioned custom of levirate proper.

The levirate among the Israelites.

Among the Israelites, the levirate was in full force; the craving for continuance was the same as among the followers of Manu and the Greeks; and [pg 030] the custom with regard to heiresses is so vividly told that it is worth quoting at some length.

Deut. xxv. 5. “If brethren dwell together and one of them die and have no child, the wife of the dead shall not marry without unto a stranger: her husband's brother [i.e. next of kin] shall go in unto her and take her to him to wife and perform the duty of an husband's brother to her.

“And it shall be that the firstborn which she beareth shall succeed in the name of his brother that is dead, that his name be not put out of Israel.

“And if the man like not to take his brother's wife, then let his brother's wife go up to the gate unto the elders and say, ‘My husband's brother refuseth to raise up unto his brother a name in Israel, he will not perform the duty of my husband's brother.’

“Then the elders of his city shall call him and speak unto him: and if he stand to it and say, ‘I like not to take her,’ then shall his brother's wife come unto him in the presence of the elders, and loose his shoe from off his foot, and spit in his face, and shall answer and say: ‘So shall it be done unto that man that will not build up his brother's house (LXX. οἶκος).’

“And his name shall be called in Israel, ‘The house (οἶκος) of him that hath his shoe loosed.’ ”

The case of Tamar.

Such was the scorn felt for the man who refused to perform the duties of nearest kinsman. In the thirty-eighth chapter of Genesis is told the story of Tamar, the wife of Judah's eldest son who died childless. The second son's refusal to raise up seed to his brother because he knows that his own name will not be perpetuated thereby, but his brother's, meets with summary punishment. “And the thing that he did was evil in the sight of the Lord, and He slew him also.”72 Afterwards, when it was reported to her father-in-law that Tamar had a child by some one not of his family, he was exceedingly wroth, and said, “Bring her forth and let her be burnt.” Accordingly, after he had received his own “tokens” from her hand, [pg 031] his approval of her action, in her desire to perpetuate the name of her dead husband, is all the more striking, and shows how real such a claim as Tamar's was in the practice of those days, extreme though her action was felt to be. And Judah acknowledged his tokens and said, “She hath been more righteous than I: because that I gave her not to Shelah my [youngest] son.”

The case of Ruth.

The statement of the customary procedure in Deuteronomy is very picturesquely illustrated and fulfilled in detail in the story of Ruth, who though only a daughter-in-law takes the position of heiress through a sort of adoption by her mother-in-law Naomi, on her refusal to go back to her own people. “Where thou goest, I will go: where thou lodgest, I will lodge: thy people shall be my people, and thy God, my God. Where thou diest will I die, and there will I be buried.” She accepts Naomi's hearth her kin, her religion, and finally her tomb.

Elimelech and his two sons dying in Moab, Naomi and both her daughters-in-law are left widows in a strange land. If Naomi had other sons, upon them would have devolved the duty of taking Orpah and Ruth to wife. But Naomi declares herself73 too old to marry again and be the mother of sons, and implores her daughters-in-law to return to their own people in Moab, where she hopes they will start afresh with new husbands, a course which seems always to have been open to wives in tribal communities. Orpah does so, but Ruth elects to remain with Naomi, and returning with her to Bethlehem takes her chance [pg 032] among the kindred of Elimelech. Happening to arrive at Bethlehem at the beginning of the barley harvest, it so chances that Ruth goes forth to glean upon that part of the open field which belonged to Boaz—a rich man of the συγγενία of Elimelech, who, having heard of her devotion to Naomi and the house of his late kinsmen, protects her from possible insult from strangers and treats her richly. On her return home Naomi informs her that Boaz is of their next of kin (τῶν ἀγχιστευόντων)74 whose place it was to redeem property sold or lost by a kinsman. This duty is thus set forth in Leviticus:—

Dependence on the next of kin.

Lev. xxv. 25. “And if thy brother be waxen poor and sell some of his possession, then shall his kinsman (ἀγχιστεύων) that is next to him come and shall redeem that which his brother hath sold.”

An instance of it in practice is given in Jeremiah.

Jerem. xxxii. 8. “So Hanameel mine uncle's son came to me in the court of the guard according to the word of the Lord and said unto me, ‘Buy my field, I pray thee, that is in Anathoth which is in the land of Bethlehem: for the right of inheritance is thine, and the redemption is thine: buy it for thyself.’ ”

But on Ruth's applying to Boaz, he informs her that though he is ἀγχιστεύς, i.e. within the reach of the claim on the next of kin, yet is there one ἀγχιστεύς who is nearer than he, and who must first be asked.

“Now Boaz went up to the gate and sat down there, and behold the near kinsman of whom Boaz spake came by, unto whom he said, ‘Ho, such an one! turn, aside, sit down here,’ and he turned aside and sat down. And he took ten men of the elders of the city and said, ‘Sit ye down here,’ and they sat down. And [pg 033] he said unto the near kinsman, ‘Naomi that is come again out of the country of Moab selleth the parcel of land which was our brother Ehmelech's: and I thought to disclose it to thee, saying, “Buy it before them that sit here and before the elders of my people.” If thou wilt redeem it, redeem it; but if thou wilt not redeem it, tell me that I may know; for there is none to redeem it beside thee, and I am after thee.’ And he said, ‘I will redeem it.’ Then said Boaz, ‘What day thou buyest the field of the hand of Naomi thou must buy it also of Ruth the Moabitess, the wife of the dead, to raise up the name of the dead upon his inheritance.’ And the near kinsman said, ‘I cannot redeem it for myself lest I mar my own inheritance; take thou my right of redemption on thee; for I cannot redeem it.’ ”

The rendering of the Vulgate of the kinsman's reply is more easily understood:—“I yield up my right of near kinship: for neither ought I to blot out the continuance (posteritas) of my family: do thou use my privilege, which I declare that I freely renounce.”

“And he drew off his shoe. And Boaz said unto the elders and unto all the people, ‘Ye are witnesses this day that I have bought all that was Elimelech's … Chilion's and Mahlon's of the hand of Naomi. Moreover Ruth, the wife of Mahlon, have I purchased to be my wife to raise up the name of the dead upon his inheritance, that the name of the dead be not cut off from among his brethren and from the gate of his place: ye are witnesses this day.’ And all the people that were in the gate and the elders said, ‘We are witnesses … May thy house be like the house of Perez whom Tamar bare unto Judah’ &c.”

Now Boaz was sixth in descent from this Perez whose mother Tamar, as quoted above, had been in much the same position as Ruth.

It is interesting to read further that the son born of this marriage of Ruth and Boaz is taken by the women of Bethlehem to Naomi, saying, “There is a son born to Naomi,” emphasising the duty of the heiress to bear a son, not into her husband's family, but to that of her father.

[pg 034]

The story of Ruth is not, therefore, an exact example of the custom of levirate. But it illustrates incidentally the unity of the family. The sons of Elimelech died before the family division had taken place, and the house of Elimelech their father was thus in jeopardy of extinction. If Naomi had come within the proper operation of the levirate, the next of kin ought to have married her, but by her adoption of Ruth as her daughter, she gave Ruth the position of heiress or ἐπίκληρος, whilst the heir born to Ruth was called son, not of Ruth's former or present husband, but of Elimelech and (by courtesy) of Naomi, Elimelech's widow, through whom the issue ought otherwise to have been found.