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One of the most transformative periods in British history is the reformation – the break away of the British crown from Rome. This took place after Henry VIII was unable to receive annulment of his marriage from his sister-in-law Catherine of Aragon to marry Anne Boleyn and produce a male heir to the throne. This issue preoccupied England between 1527 and 1535. In this essay, we will present an in-depth analysis of the issues relating to Henry’s troubled levirate marriage and the Levitical argument that marrying one’s brother’s wife is in violation of the laws of incest. We will look at this through an overview of the key rabbinic texts on this subject, which would have likely been sought and studied by Henry’s Oxford Hebraist scholars, among others, in support of his divorce. In conclusion, we will offer insight into the reasoning of both sides of this dispute and demonstrate how they may both in fact be found in the classic sources pertaining to levirate marriage in Jewish family law.

 

Brief history

 

Catherine of Aragon married Arthur Prince of Wales in 1509, which considerably raised the stature of England in Europe during the 16thcentury.[1] After a few months Arthur passed away and Pope Julius II gave a dispensation for the younger brother Henry VIII to marry his brother’s widow. Henry and Catherine had five children, but only one survived, Princess Mary (b. 1516). By 1527, it was clear that Catherine had passed the age of having more children while Henry desired a male heir to secure the Tudor dynasty. Henry desired Anne Boleyn, a member of Henry’s household, and thought to have a child with her. As the pope sanctioned the marriage, however, only the incumbent pope Clement VII was able to annul it, which he was unwilling to do, despite having done so for Henry’s brother-in-law the Duke of Suffolk a short while before.[2] The difference was that after 1527 Rome and Pope Clement VII had become subject of Charles V, Catherine’s nephew.

 

At that time Cardinal Thomas Wolsey (1515-1529) was Henry’s first minister, Lord Chancellor and Chief Councillor. He was superior ecclesiastical authority in England and a commission was granted in April 1528 by the pope to be administered jointly by Wolsey and Lorenzo Compeggio. The court opened on 31 May, 1529, and heard the case put forward by Henry VIII and Catherine on 21 June. Other scholars from Oxford and Cambridge were also commissioned to support the annulment of the marriage.[3] As Wolsey was appointed by the pope to serve as legate of Rome to England he could not go against Rome. The commission was destined to fail also due to the lack of Compeggio’s support for Henry and on the appeal of Catherine the commission was recalled to Rome in July.

 

Henry replaced Wolsey and appointed in his place Sir Thomas Moore in 1530. Moore however was also reluctant to be involved in the annulment of the marriage.[4] After enormous effort in trying to persuade Rome to support the annulment of his marriage, Henry summoned parliament and removed England’s allegiance to Rome, abolishing the pope’s ecclesiastical powers in England through a number of statues.[5] Henry appointed Protestant Thomas Cranmer as Archbishop of Canterbury and on 23 May 1533, Thomas Cranmer declared Henry and Catherine's marriage annulled. Five days later, he declared Henry and Anne's marriage valid, after she was already pregnant and Anne gave birth to Elizabeth I on 7th September 1533. Disappointed that it was not a boy, however, and following a subsequent miscarriage in May 1536, Henry orchestrated a palace coup and had Anne executed for adultery. He subsequently married Jane Seymour, who died in surgery after giving birth to Prince Edward VI.[6]

 

Levitical argument

 

The strategy of Henry VIII to marry his second wife Anne Boleyn was to prove that the pope’s dispensation for him to marry his brother’s widow was invalid. This would automatically terminate his marriage as if it never existed, allowing him to marry another woman. Henry was also aware there was a minority opinion in Western Christendom that agreed with his view that the marriage of his brother’s widow, Catherine of Aragon was in fact invalid.[7] As part of the work of the commission, diplomat and humanist Richard Pace recommended Henry VIII to approach Oxford Hebraist Robert Wakefield (d. 1537/8) to help find support for his divorce from Rabbinic sources.[8] Wakefield began Hebrew studies in Tudor England and was appointed Regius Praelector of Hebrew[9] at Oxford in 1529, later becoming canon of Henry VIII’s college, now Christ Church College.[10] Wakefield was knowledgeable in Jewish teaching and held the works of Ibn Ezra, David Kimchi, Maimonides, Nachmanides and Rashi in high esteem.[11] He therefore suggested to Henry that ‘the best learned and most excellent authors of the interpreters of the Hebrew’ could defend him.[12] Thomas Cranmer, then a young tutor, also suggested that a body of evidence should be gathered from scholars from across Europe to support the Leviticus case for the annulment of the marriage. This included asking the Jews in Italy for their opinion of the laws of Leviticus.[13] The new Bishop of London John Stocksley seems to have been the person to suggest around November 1529 that the Italian rabbinical authorities should indeed be consulted. This began the process to consult and obtain support from the Jews of Venice for Henry’s divorce.

 

Henry VIII and the Jews of England

 

We will first present the state of the Jews in England during the reign of Henry VIII to understand why Jews in England were not in a position to be consulted. Between the years 1290 when Edward I expelled the Jews from England and 1656 when Jews were re-admitted under Oliver Cromwell, there were officially no Jews in England. There were however Jews living in secret, as marranos. After the expulsion of the Jews from Spain in 1492, many Jews continued to live under Spanish and Portuguese rule, adopting Christianity in the open while observing Jewish practice in secret. Some of these Jews settled in England, establishing the early Sephardic community in London and Bristol. This community was however broken up by Henry VII as part of the negotiation of his son Arthur Prince of Wales’ marriage to Catherine of Aragon in 1501.[14] Jorge Anes, progenitor of the distinguished British family Ames, had been living in London with his family since 1521.[15] Jewish business families were involved with finance and loans with the English government in 1532. When Diogo Mendes, the head of the Antwerp branch that conducted also business in London, was threatened with prosecution on the charges of Judaising, Henry VIII intervened to have him released.[16] By 1536 a small secret Jewish community was already established in London. By 1550, the community was about 100 people.[17] The community however came to the attention of the government by its discovery by the Inquisition and Henry VIII was compelled to break the community up and most left the country while those remaining made sure to conceal their Judaism.[18]

 

After a few years, a new community became established in London, though much smaller than its predecessor, with a larger one in the port city of Bristol. This lasted until the accession of Queen Mary in 1553 and the return of England to Catholicism, when the Jewish community was broken up again. The Bristol community was completely dispersed while the London community went into further hiding until the accession of Elizabeth who brought the country back to Protestantism.[19] The community, some of whom arose to prominence, was subsequently maintained until 1609 when it once again came to an end under James I. This was due to the trial of Rodrigo Lopez, Queen Elizabeth’s trusted Jewish physician, who was accused of a plot against the queen, and was hung. This caused anti-Jewish sentiment to spread, forcing the Jewish community to disperse, though some families, like members of the Anes family became absorbed in the local population.[20] Jews were officially allowed to return under Oliver Cromwell through the effort of Menasseh ben Israel in 1656. As there was no English Jewish community to consult regarding Henry’s divorce attention was turned to one of the most prominent Jewish communities of Europe at the time in Venice.

 

Venice’s Rabbis

 

Richard Croke who was in Bologna at the time travelled to Venice to consult the rabbis. It appears that this would have been also the time when Henry procured his 9-volume original set of Daniel Bomberg’s Talmud, subsequently deposited at Westminster Abbey, to assist his scholars with the effort to find original Jewish legal sources to support the annulment of the marriage.[21] Richard Croke wrote back that the Jews confirmed that while Deuteronomy allowed for levirate marriage the law is not obligatory and not observed in practice.[22] This was conveyed to Henry in the name of two Venetian Jewish figures: Jewish convert and professor of Hebrew Marco Raphael and physician Rabbi Elijah Menachem Halfan.[23] Raphael first argued that if Henry wants, he may marry a second wife according to Jewish law. When that view was rejected, Raphael suggested that based on the laws of levirate marriage the marriage was invalid. The rationale was since the purpose of the marriage was to sustain the offspring of his brother, the fact that Henry did not have a male child from Catherine, the marriage in the first place was evidently not to continue his brother’s line, thus invalidating the marriage in the first place.[24] This opinion was included in the collection of opinions presented to Parliament.

 

Henry however requested to receive their opinion in writing stating that the Levitical law has always been holy and intact, and never abolished or weakened. On the other hand, the law of Deuteronomy was never in force except when the conditions therein expressed were present, thus permitted by the Levitical Law, but was never observed, even by the Jews themselves, since the destruction of Jerusalem, except in matters concerning inheritance.[25] The Jews in Venice were however divided. Mark (Marco) Raphael[26] and Rabbi Elijah Menachem Halfan supported Henry, while respected physician and Rabbi Jacob Mantino (d. 1549), despite loyalist John Casale referring to him as ‘his very great friend and a most learned man’,[27] did not.[28] Rabbi of Modena Jacob Raphael ben Yechiel Chaim Peglione also did not support Henry, writing in a responsa that both Leviticus and Deuteronomy were valid and the latter was applicable when the brother had no children. In addition, the supporters of Henry were not willing to put their support in writing so as not to be seen as rebelling against the established authority.[29] Finally, the overall seeking for support of Italian Jews for Henry’s position came to an end when a Roman Jew was compelled to marry the widow of his brother, who died without children.[30] Without the support of the Jews of Italy, in June, 1530, the strategy changed to challenging the jurisdiction of the pope over England.

 

Substance of the argument

 

In light of the importance of the subject of levirate marriage in Jewish law to the settlement of Henry’s marriage, we will present a study of the laws of levirate marriage in Jewish Biblical and rabbinic tradition, which would have no doubt been part of the deliberations of Henry’s Hebraist scholars and the rabbis of Venice. The main argument presented in support of the divorce is that Henry had no intention to carry his brother’s name; on the contrary it was to produce his own heirs to the throne through Catherine of Aragon. This he argued put him in violation of Leviticus:[31] “Do not uncover the nakedness of your brother’s wife; it is the nakedness of your brother.” And:[32] “If a man marries the wife of his brother, it is indecency. It is the nakedness of his brother that he has uncovered; they shall remain childless.” A further development of this argument came from Richard Wakefield, that the verse prohibiting marrying one’s brother’s widow promises that the transgressor will be without children. Wakefield suggested that the translation should be consulted in the original Hebrew and not in the Vulgate and the word ‘ariri indeed means without sons thus applying directly to Henry’s situation as punishment for having violated Leviticus. Let us look at this argument in detail and evaluate its validity from the perspective of Jewish teaching.[33]

 

Natural law

 

The first[34] mention of the performance of levirate marriage in the Torah is in the Biblical story of Judah and Tamar:[35] “Then Judah said to Onan: Join with your brother’s wife and do your duty by her as a brother-in-law, and provide offspring for your brother.” The Midrash states: Judah observed the Torah before it was given.[36] Rabbi David Kimchi (1160-1265) suggests that the practice of levirate marriage was common practice long before Sinai. Ancient Near Eastern laws mention the practice, including the Hittite laws, as Indo-European and Melanesian cultures.[37]

 

Jewish law contradiction & reconciliation

 

While Jewish Biblical law clearly sanctions levirate marriage, an underlying tension exists due to a contradiction in the text that came to the fore in Henry’s times. In Deuteronomy it states:[38]

 

When brothers dwell together and one of them dies and leaves no son, the wife of the deceased shall not be married to a stranger, outside the family. Her husband’s brother shall cohabit with her: he shall take her as his wife and perform the levir’s duty. The first son that she bears shall be accounted to the dead brother, that his name may not be blotted out in Israel.

 

In Leviticus however it states the opposite:[39] “Do not uncover the nakedness of your brother’s wife; it is the nakedness of your brother,” and[40] “If a man marries the wife of his brother, it is indecency. It is the nakedness of his brother that he has uncovered; they shall remain childless.”

 

This contraction was dealt with in a number of ways in various rabbinic works. In the 9th century work Pesikta Rabati[41] it observes that the law of levirate marriage is part of a section of Jewish law that remains beyond reason (chuka). This is also reflected in the 5th century Midrashiccomment[42] that this is one of the places in the Torah where two conflicting sources were uttered in unison at Sinai.[43] A logical reconciliation of this contradiction is however presented by anonymous 13th century Spanish compendium of Jewish law Sefer Hachinuch[44] that argues that the prohibition against having relations with one’s brother’s wife is applicable except in a case where the brother died childless, in which case Jewish law requires levirate marriage. To deal with the contradiction in a more legalistic manner, the Tosafot applies the principle that when you have a positive injunction (levirate marriage) in contradiction with a negative prohibition (not to marry one’s brother’s wife) the positive overrides the negative.[45] In summary, the tension between Deuteronomy and Leviticus is acknowledged, though, in the final analysis, the basic permission of the Deuteronomy source to perform levirate marriage remains intact, despite the Leviticus source.

 

Beyond the basic permission of the Deuteronomy source, however, Jewish law develops along a legal trajectory that goes from permission to perform levirate marriage to in fact discouraging and according to some prohibiting the performance of the ceremony altogether, as is the custom nowadays in Israel and Jewish communities across the world. The development of this law is similar to other areas in Jewish law that sets out with a basic law but then develops due to the circumstances or interpretation to a degree that allows for the law to end up quite different than its original simple reading.[46] For the purpose of our study to understand the use of the rabbinic works to sanction Henry VIII’s divorce, I will aim to outline this trajectory of the law from the Biblical period to contemporary Jewish law. We will then be in a position to apply this to the 16th century debate in defence of Henry’s position.

 

Biblical law – levirate marriage preferred

 

In Jewish law there are two options when faced with the death of one’s married brother without children: one is to perform levirate marriage. Another option is to issue a release called chalitza (lit. the removing of the shoe) that releases one from the obligation of levirate marriage. These two options are outlined in the Biblical text.

 

Option one – levirate marriage (yibum):[47]

 

When brothers dwell together and one of them dies and leaves no son, the wife of the deceased shall not be married to a stranger, outside the family. Her husband’s brother shall cohabit with her: he shall take her as his wife and perform the levir’s duty. The first son that she bears shall be accounted to the dead brother that his name may not be blotted out in Israel.

 

Option two – release (chalitza):[48]

 

But if the man does not want to marry his brother’s widow, his brother’s widow shall appear before the elders in the gate and declare, “My husband’s brother refuses to establish a name in Israel for his brother; he will not perform the duty of a levir.” The elders of his town shall then summon him and talk to him. If he insists, saying, “I do not want to marry her,” his brother’s widow shall go up to him in the presence of the elders, pull the sandal off his foot, spit in his face, and make this declaration: Thus shall be done to the man who will not build up his brother’s house! And he shall go in Israel by the name of “the family of the unsandaled one.”

 

From the framing of the law as first and second alternative options, there is clearly a preference for levirate marriage: “not to blot out the name of one’s brother.” This was in fact the custom in many ancient cultures, practised, as mentioned, among the Israelites before Sinai, as with the family of Judah and Tamar, and incorporated in the Biblical law for posterity. The rationale behind the law is an act of kindness for the deceased brother who left no children in his memory.[49] According to the Zohar it is a kindness to the deceased that allows his soul to rest in peace.[50]

 

1st dispute – Abba Saul and the Sages

 

While the Torah prefers levirate marriage, rabbinic law disputes the application of the law of levirate marriage in practice. I will present an overview of this change in attitude first articulated in the mishnaic period in the 2nd century, continued in the amoraic period in the 5-6th century, deepened further in the medieval period and continues until the modern day. The basic text that articulates the divergence from the Biblical law is a dispute quoted in the tractate of Bechorot between 2nd century sage Abba Saul[51] and his contemporaries (chachamim), as to whether the option of levirate marriage should precede chalitza or chalitza should precede levirate marriage - essentially weakening or revoking the levirate marriage law:[52]

 

Abba Saul said: If a levir married his sister-in-law on account of her beauty, or in order to gratify his desires, or with any other ulterior motive, it is as if he has infringed the law of incest; and I am even inclined to think that the child from such a union is an illegitimate child (mamzer). But the Sages say: levirate marriage is acceptable however he cohabits with her, regardless of intent.

 

Both opinions deduce their views from the Biblical text. For Abba Saul, the statement:[53] “He shall take her as his wife and perform levirate marriage”, points to the requirement to have intent to fulfil the duty of levirate marriage when marrying.[54] Without such intent, the marriage infringes on the Leviticus law of incest against marrying one’s brother’s wife. For the sages, the text:[55] “Her yavam (brother in law) shall cohabit with her,” implies cohabitation may be regardless of intent. The Talmud proceeds to present three texts that side with the opinion of Abba Saul, opposing levirate marriage due to intent. The first text is in tractate Bechorot:[56]

 

The mitzva of levirate marriage (yibum) precedes the mitzva of chalitza. At first they were intent on fulfilling the mitzva, now that they are not intent on fulfilling the mitzva, they said, the mitzva of chalitza precedes the mitzva of levirate marriage.

 

A further two texts are more semantic based on the mention of the option of chalitza before levirate marriage, unlike the Biblical framing of chalitza as the second option. One is from tractate Yevamot:[57] “Fifteen women exempt their co-wives from chalitza and from levirate marriage (yibum). The Talmud mentions chalitza before yibum reflective of the opinion of Abba Saul that chalitza precedes yibum.” A second text is from the Tosefta:[58] ”A woman who cannot have children, an elderly woman and all other women may perform chalitza or levirate marriage.” The mention of chalitza before levirate marriage in the latter two cases implies the preference of chalitza over levirate marriage. The conclusion of the 2nd century rabbis thus appears to be that post destruction of the Temple levirate marriage should not be performed.

 

2nd dispute – Talmudic sages

 

A similar dispute can be found among the later Talmudic rabbis (amoraim). The main proponents to follow Abba Saul against levirate marriage are Shmuel and Bar Kapara who issued the following statements:

 

The first text is from tractate Ketubot:[59]

 

Rav Tuvi bar Kisna said in the name of Shmuel:[60] we do not issue a writ of rebelliousness (igrot mered) on a woman awaiting (refusing) the levir. The reason for this is since nowadays they do not have intent for the sake of a mitzva. The mitzva of chalitza is therefore preferable to the mitzva of levirate marriage.

 

A second text is from tractate Yevamot:[61] Bar Kapara (3rd century) taught: A person should always cleave to chalitza (rather thanlevirate marriage). Despite the conclusion of the earlier sages to follow Abba Saul against levirate marriage, an overwhelming number of texts point to the opposite, reflecting a retraction of the endorsement of the view of Abba Saul for the view of the sages that levirate marriage is preferable. Due to the interest of Henry’s Hebraists to analyse the original Talmudic text to gain insight into this issue, we will present six key texts that are utilised by the medieval legalists to formulate their view on this dispute:

 

1.     Rami bar Chama (4th century) said in the name of Rabbi Yitzchak:[62] They went back to saying that the mitzva of levirate marriage is preferable to the mitzva of chalitza.[63] For originally they agreed with Abba Saul but later they came to agree with the sages who maintain that levirate marriage is preferential regardless of intent.[64]

2.     The law of the rebellious woman who may be penalised applies even pertaining to a woman who is waiting to marry the levir, indicating the preference is the mitzva of levirate marriage as opposed to chalitza.[65]

3.     He may acquire her through levirate marriage even against her will or if performed against his will.[66]

4.     There was a levir who came before Rabbi Chiya bar Abba (3rdcentury) with his sister in law. Rabbi Chiya bar Abba said to her: My daughter, stand up and perform levirate marriage. Upon the woman refusing, Rabbi Chiya bar Abba persuades the brother-in-law to perform chalitza to release her to remarry. [67] Rabbi Chiya bar Abba, in this case, shows preference for levirate marriage over chalitza.

5.     A daughter of Rabi Papa’s father-in-law fell to the lot of a levir who was unworthy of her but who insisted on contracting with her levirate marriage. When the levir came before Abaye, he tricked him by saying: submit to her with chalitza and you will thereby wed her. This story implies that had it been an appropriate marriage, levirate marriage would have been recommended. [68]

6.     A certain man, who lived in the land of Israel, fell under the obligation of marrying a sister-in-law at Be Hozae.[69] He came to Rabbi Hanina and asked him if it was proper to go down there to contract levirate marriage with her. Rabbi Hanina replied: His brother married a heathen (a term for a Jewish woman from Be Hozae) and died, and this one would follow him! In this case, had it not been for the need to leave Israel Rabbi Hanina would have instructed him to perform levirate marriage.[70]

 

In all the above six texts, in particular the first text stating the retraction by the rabbis to follow Abba Saul, there is an assumption that levirate marriage is preferred according to Jewish law. Despite this, the sources are mixed leaving open for protracted dispute amongst the legalists who to follow: Abba Saul who is concerned about lack of intent and prefers chalitza to prevent infringement of incest or the sages who are not concerned about intent and prefer levirate marriage

 

3rd dispute - French versus Spanish rabbis in medieval period

 

As the sages of the Talmud were divided on this question, so were the rabbis of the medieval period: some followed Abba Saul while some followed the Sages, each drawing their conclusion from the above texts respectively. The following is a lengthy list of twenty six rabbis from Spain, France, Germany and Italy, between the 11th and 16th century  who supported levirate marriage over chalitza:[71] Achai Gaon, Isaac Alfasi, known as the Rif (1030-1103),[72] Simcha of Vitry (d. 1105),[73] Joseph ibn Migash (11th century – c. 1141), Samuel ben Meir (1085 – c. 1158), known as Rashbam,[74] Isaac the Elder (c. 1115 – c. 1184), known as the Ri ha-Zaken,[75] Zerachiah ha-Levi of Gerondi, known as the Rezah (c. 1125-c. 1186), Abraham ben David, known as Ra’avad (c. 1125 - 1198), Maimonides (1135-1204),[76] Eliezer ben Yoel HaLevi of Bonn, known as Ra'avyah (1140–1225), his father Joel haLevi of Bonn, Meir Abulafia, commonly known as the Ramah (1170-1244), Isaiah di Trani ben Mali (c. 1180 – c. 1250), Jonah Gerondi (1180-1263), his cousin Nachmanides (1194-1270),[77] Shimon Hameili, his disciple Efraim, Yehonasan Milunil, Aharon ha-Levi (1235 – c. 1290), known as Ra'ah, Shlomo ben Aderet (1235–1310), Yom Tov ben Avraham Asevilli (1260s – 1320s), known as Ritva,[78] Vidal of Tolosa, known after his work Magid Mishneh (14th century), Nissim of Girona (1320 –1376), his disciple Isaac ben Sheshet Perfet, known as the Rivash (1326–1408),[79] Ovadiah ben Abraham of Bartenura (c. 1445 – c. 1515), and David ben Solomon ibn (Abi) Zimra, known as the Radbaz (c. 1479-1573).

 

The following is a list of twelve rabbis from Germany, France, Austria and North Africa between the 11th and 13th century who followed the view of Abba Saul: Kairouanan Rabbi Chananel (990-1053), [80] Shlomo Yitzchaki, known as Rashi (1040-1105),[81] his son-in-law Ezriel ben Nathan, known as Rivan (c. 1065-c. 1105), Eliezer ben Nathan of Mainz (1090–1170), known as Ra'avan,[82] Jacob Tam (1100-1171), Judah ben Isaac Messer Leon (1166–1224),[83] Samson ben Abraham (c. 1150 – c. 1230), also known as the Rash of Sens,[84] Moses ben Jacob of Coucy, known as the Semag (d. 1260), Isaac ben Moses of Vienna (1200-1270), [85] Isaac of Corbeil, known by his work the Semak (d.1280), Perez ben Elijah of Corbeil (d. 1295), and Mordechai ben Hillel HaKohen (c. 1250 - 1298).

 

Countries

 

To provide a clearer geographical context for the period prior and around the 16th century when Henry tried to consult the rabbis about his levirate marriage, we will present a few testimonies found in rabbinical works by countries between the 13 and 15th century: 13th century French Tosafist Rabbi Peretz of Corbeil (d. 1295) writes that the custom in Germany in his day was to perform levirate marriage, while the custom in France was not to.[86] In the 15th century, Italian Rabbi Joseph Colon, known as Maharik (c. 1420 - 1480), testifies that the custom in all the German lands (b’chol eretz Ashkenaz) was to perform chalitza and not levirate marriage. In the 16th century Radbaz (c. 1479-1573) testifies that while some had the custom in Germany to perform chalitza, as testified by Rabbi Joseph Colon,[87] he clarifies that the custom in all of the Sephardic lands, Provence, Catalan, the majority of Germany, the Middle Rhine communities of Mainz, Worms and Speyer, known as Shum, Egypt, Israel, Damascus and Turkey was to perform levirate marriage. Clearly, at the time of the 16th century, then, the majority of Jewish communities besides France and parts of Germany were performing levirate marriage.

 

England

 

It is not clear what the practice would have been in England. This was of course not relevant for the time of Henry in the 16th century as the Jews were still forbidden to live in England openly until the 17th century, 1656, under Oliver Cromwell. Nevertheless, the question may be asked about the 13th century before the expulsion in 1290. The only source that addresses this is the 13th century English compendium on Jewish law Etz Chaim[88] (published 1279) by Rabbi Jacob ben Judah Chazzan of London. As he states in his introduction, his work is largely modelled on Maimonides and this can be seen in his laws of levirate marriage where he first cites the view, as does Maimonides, that the primary mitzva is to perform levirate marriage:[89]

 

It is a positive commandment of the Torah for a man to marry the widow of his paternal brother, whether betrothed or married, if he died without leaving children, as it states:[90] "And one of them dies childless…her husband's brother should cohabit with her." If the levir or the yevama (widow) does not want to perform levirate marriage, it is a positive commandment of the Torah to perform chalitza and she is permitted to marry another man, as it states:[91] "She shall... remove his shoe. Nevertheless, the mitzva of levirate marriage takes precedence.

 

After stating this position, however, he cites the opinion of Rabbi Jacob Tam:

 

But Rabbeinu Tam rules that the mitzva of chalitza takes precedence in today’s times because the halacha follows Abba Saul. This may be deduced from the language of the first mishna in tractate Yevamot. Furthermore, Bar Kappara taught that one should always follow chalitza, like Abba Saul.

 

The general rule in Halachic compendiums is that when two views are brought the first is the primary opinion.[92] This would suggest that the practice in England followed the medieval German custom to practise levirate marriage as opposed to chalitza, as was the custom of France.[93] A short analysis of the opinion of Maimonides might however prove otherwise pertaining to determining the custom of medieval England. Maimonides also first states levirate marriage is preferable[94] but in laws of divorce,[95] he appears to contradict himself by quoting the view of Bar Kapara: “One should always be closer to chalitza.” This question is posed and remains unanswered by Rabbi Abraham Hiyya de Boton (c. 1560 – c. 1605) in his commentary on Mishneh Torah, Lechem Mishneh.[96] Rabbi Mas'ud Chai ben Aharon Rokeach (1689– 1768) in his commentary Ma’aseh Rokeach,[97]  and Rabbi Abraham ben Judah Leib (1788-1848) in his commentary on Mishneh TorahNachat Eitan,[98] answers that while Maimonides follows the view that ulterior motives don’t render levirate marriage incest, unlike Abba Saul, and for this reason when there is uncertainly whether there is ulterior motives (stam) we don’t obstruct levirate marriage, he, nevertheless, is in agreement that when there are evident ulterior motives, levirate marriage is undesirable, hence the second statement by Maimonides discouraging levirate marriage in such cases. This view may be interpreted to be also the custom as presented by Jacob ben Judah Chazzan of London. In principle, he follows the view that levirate marriage takes precedence in an ideal setting, however is in agreement that nowadays one should follow Rabbi Jacob Tam who follows the view of Abba Saul, when the norm is to have ulterior motives in marrying one’s sister-in-law either for financial reasons or pleasure. According to this reading, England would have followed the customs of nearby France not to practise levirate marriage in the 13th century.

 

4th dispute - 16th century-today

 

The divergent views of the Jewish community on this subject became more delineated according to Sephardic and Ashkenazic lines in the 16thcentury. This was due to the landmark codification of Jewish law Shulchan Aruch by Rabbi Joseph Karo (1488-1575) that reflected in principle the view of Sephardic heritage. Added to the text were the glosses by Rabbi Moses Isserles, known as the Rema (1520-1572), intended to reflect the Ashkenazik customs. Both were combined into one volume by printer of Hebrew books Yitzchak Prostitz of Krakow, who was the first to print the Shulchan Aruch with the glosses of Rabbi Moses Isserles in 1570 (Orach Chaim) and 1578 (the remaining sections).[99] 

 

In the laws of levirate marriage[100] Rabbi Joseph Karo cites the opinion of the sages that levirate marriage is preferable, while citing a second opinion that chalitza is preferable. His bringing the opinion that prefers levirate marriage first and the opinion of Abba Saul second indicates that Rabbi Joseph Karo follows the first opinion that prefers levirate marriage over chalitza. In the glosses of Rabbi Moses Isserles[101] he quotes the view of Rabbi Jacob Tam that one should not practise levirate marriage due to ulterior motives, following the view of Abba Saul. With this statement Rabbi Moses Isserles standardizes the Ashkenazic view that levirate marriage should not be performed nowadays. Rabbi Yechiel Michel Epstein (1829-1908) testifies in the 19th century that in Mizrachi(lit. Eastern) lands levirate marriage is performed, while in Germanic countries, France, Russia, Poland and Austria levirate marriage is not practised at all (lo nohagu klal).[102] This dispute however appears to have been finally resolved in favour of the Ashkenazic custom whereby nowadays the Jewish community completely shuns levirate marriage. It has been outlawed in Israel by the chief rabbinate since 1950.[103]

 

Venice

 

We will now apply this dispute to the courting of Henry VIII and pope Clement VII of the rabbis of Venice in the 16th century to support their views for and opposed the annulment of Henry’s marriage. As the views of the French and German rabbis were divided on this matter it is of no surprise that the view of the rabbis in Venice was also divided. This was unlikely due to personal gain or political fear to support either side, although Mantino and Raphael were both rewarded respectively for their stand on the issue. Mantino, who was born in Spain, and came to Italy after the expulsion of the Jews in 1492, would have certainly followed the view of the Spanish rabbis who supported levirate marriage, as did the Italian rabbis as expressed by Italian Tosafist Isaiah deTrani in the 13thcentury and Rabbi Obadiah Bartenura in the 16th century. A possible reason why Raphael and Halfan supported Henry may have been due to their view that Jews of England were not subject to the customs of Italy and Spain and but rather the view of the French rabbis who did not practise levirate marriage.[104]

 

Ex post facto

 

While the prevailing view of the Ashkenazic rabbis was not to perform levirate marriage, would this have been sufficient to invalidate a consummated levirate marriage, as in the case of Henry? The validity of a levirate marriage for ulterior motives ex post facto is subject to dispute. This question depends on how one views the weight of the concern of ulterior motives as expressed by Abba Saul. If the concern were actual incest this would invalidate the marriage. If it is merely of rabbinic concern bordering on incest but not actual incest it would not have the power to invalidate the marriage. There are three opinions regarding this matter. Nachmanides argues that the opinion of Abba Saul is that levirate marriage is not valid when done with ulterior motives and is in violation of the Leviticus law against incest, not to marry one’s brother’s wife.[105] 17th century Polish Rabbi Samuel ben Uri Shraga Feivish argues that even if the concern of ulterior motives is Biblical in origin and one is committing incest, nevertheless, ex post facto, the levirate marriage is a valid marriage.[106] Rabbi Shlomo ben Aderet (1235–1310), suggests Abba Saul is merely stating that levirate marriage for ulterior motives is bordering on Biblical incest ( k’pogea b’ervah) but not actual incest.[107] Spanish Rabbi Joseph ibn Habiba, who flourished in the 14th and 15th century, comments[108] that the concern of Abba Saul is rabbinical in origin and if performed with ulterior motives the marriage would remain valid.

 

Based on the above opinions regarding the view of Abba Saul, one may have a better understanding of the deliberation pertaining to Henry’s divorce. If one is to assume the maximalist view of Nachmanides pertaining to Abba Saul’s opinion that intent is fundamental for the consummation of levirate marriage - otherwise one is committing incest - Henry was correct in his argument that his marriage to his sister-in-law Catherine of Aragon was indeed invalid and violated the Levitical law against incest. Likewise, one can find support for the view of Clement VII who was opposed to annulling the marriage of Henry stating that the levirate marriage was valid. This view was supported by the majority view that firstly rejected the view of Abba Saul in 16th century Italy, and secondly even if there was concern for intent, as argued by Henry, the majority view is that this does not carry sufficient weight to annul levirate marriage retroactively.

 

Conclusion

 

We began by presenting the story of Henry VIII’s levirate marriage and his desire to have it annulled based on the Leviticus law against incestuous relationship with one’s brother’s wife. While at the onset his argument seems preposterous from the perspective of Jewish law and out of sync with basic Jewish teaching on the subject of levirate marriage, clearly sanctioned by Deuteronomy, after a lengthy in-depth analyses of the post-Biblical rabbinical development of the law and its fractious dispute that lasted for almost two thousand years, one can in fact find support for Henry’s position from the perspective of Jewish law. Although Henry of course was not subject to Jewish law, he clearly desired to live a life consistent with Jewish law on this subject, as evident by following the Oxford Hebraists to consult the rabbis on this subject that changed the course of British history for almost five hundred years.

____ 

Footnotes


[1] History of Britain, Ed. Kenneth O. Morgan, p. 271.

[2] Katz, David S., The Jews in the History of England 1485-1850, p. 15.

[3] The Reign of Henry VIII: Politics, Policy and Piety, ed. Darmian MacCulloch, p. 146 & p. 153.

[4] History of Britain, Ed. Kenneth O. Morgan, p. 282.

[5] Act of Annates (1532), the Act of Appeals (1533), the Act of Supremacy (1534), the First At of Succession (1534), the Treasons Act (1534) and the Act of the Pope’s Authority (1536).

[6] His other wives are Anne of Cleves, whose marriage was never consummated, Catherine Howard, who was executed for adultery, and Catherine Parr.

[7] History of Britain, Ed. Kenneth O. Morgan, p. 281.

[8] The Oxford History of Classical Reception in English Literature: Volume, edited by Rita Copeland, 1 p. 523.

[9] A position established by Henry VIII that preceded the Regius Professorship of Hebrew.

[10] The Regius professorship in Hebrew was established at Cambridge in 1540 and Oxford in 1546.

[11] Fronda, Rahel “Jewish Books and their Christian Readers - Christ Church Connections” p. 13. His extensive annotations in the margins of his copy of Rashi’s commentary made its way to Corpus Christi College (ibid, p. 24).

[12] Katz, David S., The Jews in the History of England 1485-1850, p. 21.

[13] Katz, David S., The Jews in the History of England 1485-1850, p. 15.

[14] Hyamson, Albert M., The Sephardim of England, p. 3.

[15] Sigal, Phillip, The Emergence of Contemporary Judaism, Volume 3: From Medievalism to Proto-Modernity in the Sixteenth and Seventeenth Centuries (Pittsburgh Theological Monographs), p. 162.

[16] Hyamson, Albert M., The Sephardim of England, p. 4.

[17] Ibid, p. 5.

[18] Ibid, p. 6.

[19] Ibid, p. 7.

[20] Ibid, p. 9.

[21] An early reference to this set of Talmud located at Westminster Abbey is from 4thJuly, 1629 when John Selden wrote to Sir Robert Cotton asking to borrow a Babylonian Talmud from the Abbey. He wrote: “NobleSir, Your favors are always so great and ready upon all occasions to me that I take upon me the confidence to trouble you in all kinds. I have much time here before me and there is in Westminster Library the Talmud of Babylon in divers great volumes. If it be a thing to be obtained, I would beseech you to borrow them…” In 1956 an exhibition was on display at the Victoria Albert Museum celebrating the return of the Jews to England, for which Westminster Abbey submitted a volume of this Bomberg edition of the Talmud, together with two other volumes: a volume of the Babylonian Talmud and Akeidat Yitzchok. Jack Lunzer who attended the exhibition discovered that the Bomberg volume was wrongly covered by the 16th century Oxford binder as Biblio Rabinica. Lunzer subsequently arranged to visit the library at Westminster Abbey where the librarian Mr. Nixon showed him that the Abbey had in fact the full nine-volume set of the Bomberg Talmud, albeit covered with a thick layer of dust. Many years later, in 1980, Mr. Lunzer was able to procure on behalf of the Abbey through Sotheby’s the Abbey’s title deed in exchange for them granting Lunzer’s Valmadonna Trust the set of the Talmud. It was sold in 2015 to an American businessman.

[22] Katz, David S., The Jews in the History of England 1485-1850, p. 24.

[23] Son of astronomer Abba Mari Halfan, and grandson of Joseph Colon.

[24] Yaakov Bar Yosef, H Schonfield, History of Jewish Christianity, p. 98.

[25] Katz, David S., The Jews in the History of England 1485-1850, p. 30.

[26] Letters and Papers, Foreign and Domestic, Henry VIII, Volume 4, 1524-1530 – see 14 citations in the index: Raphael, Mark, a Jew, 6156, 6236, 6239, 6240, 6250?, 6266, 6300, 6375, 6398, 6414, 6541, 6656, 6786. Raphael, p. 1395. By 4th March, 1531, Marco Rafael, who had renounced Judaism, was resident in England, and was in great favour with the King for having written against the dispensation granted by Julius II. He was employed by the Signory as a secretary in the cypher department (Calendar of State Papers Relating To English Affairs in the Archives of Venice, Vol. 4, 1527-1533, pages vii-xxxvii.  www.british-history.ac.uk/cal-state-papers/venice/vol4/vii-xxxvii . Accessed 25 August, 2017). He was subsequently also rewarded by being granted a license to import six hundred tons of Gascon and two woads in 1532 (Gardner, Letters and Papers of Henry VIII, v. 485). It’s not clear if he converted before giving his opinion about the divorce or after, thus allowing him to move to England.

[27] Calendar of State Papers Relating To English Affairs in the Archives of Venice, Vol. 4, 1527-1533, pages vii-xxxvii.  www.british-history.ac.uk/cal-state-papers/venice/vol4/vii-xxxvii  . Accessed 25 August, 2017.

[28] Mantino, born in Spain, left with the expulsion of the Jews 1492, graduated in medicine from the University of Padua in 1521, and practiced first in Bologna, then Verona in 1527 and Venice in 1528, where he lived with special privileges exempted from wearing the Jewish hat (Judenhut). In 1529, he was consulted by Clement VII regarding the divorce and in reward for opposing Henry’s supporters, who also sought his support, was appointed lecturer in medicine in Bologna. In 1533 he was invited to Rome and in 1534, Pope Paul appointed Mantino as his personal physician, while serving in Rome as rabbi with the title Gaon. Between 1539-41 he was appointed professor of practical medicine at the Sapienza in Rome. In 1544 he returned to Venice and died in 1549 while accompanying, as physician, the Venetian ambassador to Damascus (Encyclopedia Judaica).

[29] Katz, David S., The Jews in the History of England 1485-1850, p. 35.

[30] Katz, David S., The Jews in the History of England 1485-1850, p. 41.

[31] 18:16.

[32] 20:21.

[33] See Scarisbrick, J.J., Henry VIII, p. 165 (Yale University Press) where it lists five main arguments, including the one mentioned in this essay: 1. Levirate marriage is a ceremony, like circumcision, that is only relevant to Jews but not to Christians. 2. Levirate marriage is only permitted when the dead brother’s marriage was consummated, which there was no evidence that was the case with Arthur (see Maimonides, Laws of Yibum 1:1 that states the laws of levirate marriage applies ‘whether betrothed or married). 3. The law of levirate marriage in Deuteronomy should be interpreted allegorically, not literally. 4. Deuteronomy does not refer to a brother, which is prohibited, but rather a relative (as per the Karaite interpretation, forcefully rejected however by Ibn Ezra in his commentary on Deuteronomy 25:5). See also: Katz, David S., The Jews in the History of England 1485-1850, p. 19. 

[34] According to Ibn Ezra (Deuteronomy 25:5), the marriage between Ruth and Boaz in the Book of Ruth is not a case of levirate marriage, as Boaz was not a brother of Mahlon, Ruth’s deceased husband. See Josephus in his Antiquities of the Jews (5:9). See also Yale Ziegler, Ruth: From Alienation to Monarchy pp. 395-403 for a detailed study of this subject.

[35] Genesis 38:8.

[36] Vayikra Rabba 2:10.

[37] See Edward Westermarck, The History of Human Marriage, vol. 3, (New York: Allerton Book Co., 1922), pp. 207-29, 261-63.

[38] 25:5-10.

[39] 18:16.

[40] 20:21.

[41] 14:1.

[42] Exodus Rabbah 28:4.

[43] The same is the case regarding ‘remember’ the Sabbath and ‘observe’ the Sabbath.

[44] 202:1.

[45] Tosafot, Yevamot 4a. Another rationale is that the case of levirate marriage whereby something is initially prohibited and then becomes permitted is a concept in Jewish law summarised by the legal statement: The Torah forbids and the Torah permits (Sha’alot U’teshuvot Radbaz vol. 4:108).

[46] The laws of capital punishment, polygamy, divorce without consent, indentured slaves, annulment of loans during the Sabbatical year, the wayward child (ben soreh umoreh), among others, are examples of this process taking place within Jewish law.

[47] 25:5-6.

[48] 25:7-10.

[49] Sefer Hachinuch 598. By the child performing mitzvot in this world it serves as a merit for the soul of his father’s brother.

[50] Chukat. The performance of levirate marriage and the birth of child acts as a body for the reincarnation of the deceased to come back in the world to fulfill the commandment to procreate. The release of chalitza allows for the release of the soul to rest in peace under the Divine presence (Shechinah) without immediate reincarnation.

[51] Another well-known teaching of his is the concept of imitatio dei, found in Talmud Shabbat 133b: Abba Shaul says: Ve’anveihu (“and I will glorify Him”, from the verse in Exodus 15:2: “This is my G‑d and I will glorify Him”) should be interpreted as if it were written in two words: Ani vaHu, me and Him [G‑d]. Be similar, as it were, to Him, the Almighty: Just as He is compassionate and merciful, so too should you be compassionate and merciful.

[52] Bechorot 13a; Yevomot 39b and 109a (the view of Bar Kapara that one should follow Abba Saul); Ketubot 64a.

[53] 25:5.

[54] Rashi’s commentary to the Talmud Yevamot 39b.

[55] 25:5.

[56] 13a.

[57] Yevamot 2a. See 3a.

[58] Yevamot 2:4. Compiled by Rabbi Chiyya, disciple of Rabbi Judah the Prince. Sha’alot U’teshuvot Radbaz vol. 4:108.

[59] Ketubot 64a.

[60] Shmuel was a disciple of Rabbi Judah the Prince (Introduction to Mishneh Torah).

[61] Yevamot 109a. Bar Kappara, as Shmuel, was a disciple of Rabbi Judah the Prince (Introduction to Mishneh Torah). Sha’alot U’teshuvot Radbaz vol. 4:108.

[62] The Rosh has the version “in the name of Rabbi Yochanan.”

[63] Yevamot 39b.

[64] There is general rule that when the Talmud writes that they retracted, the halacha follows the retraction. Similarly is the case when the Talmud states an opinion without dispute. See Sha’alot U’teshuvot Radbaz vol. 4:108. Similar retractions in Jewish law can be seen in Mishna Eduyut 1:12 and Yevamot 16:7. Or Zorua argues however that Halacha does not always follow a retraction in the law, as can be found in the Talmudic dispute regarding the trustworthiness of a butcher to remove the Gid Hanasheh or sciatic nerve that is forbidden to eat in Judaism (Chullin 93b). See Or Zarua 443 and Nimukke Yosef commentary to the Rif, Yevamot 13a.

[65] Ketubot 63a & b.

[66] Kiddushin 14a. Yevamot 8b &19b. Shulchan Aruch, Even Haezer 166:6. Hagahot MaimoniyutHilchot Yibum veChalitza 1:1. Intention for the purpose of levirate marriage is not necessary for the consummation of the levirate marriage; the act of cohabitation alone if done consciously is sufficient. This source is utilized by the Riva to support the view of the sages that levirate marriage is preferable despite possible lack of intention for the sake of the mitzva.

[67] Yevamot 106a. Sha’alot U’teshuvot Radbaz vol. 4:108.

[68] Yevamot 106a. Sha’alot U’teshuvot Radbaz vol. 4:108.

[69] Capital of the Persian province of Khuzistan.

[70] Ketubot 111a.

[71] See Sha’alot u’Teshuvot Radbaz 108, Hagahot MaimoniyutHilchot Yibum veChalitza 1:1 and Encyclopedia Talmudis (Yibum) for the extensive list of rabbis on both sides of this debate.

[72] Yevamot 13a.

[73] Hagahot MaimoniyutHilchot Yibum veChalitza 1:2.

[74] Mordechai.

[75] Or Zarua 443. Radbaz (ibid) mentions he follows the view of Abba Saul.

[76] Mishneh TorahHilchot Yibum veChalitza 1:2. See also Pirush Hamishnayot, Bechorot 1, and Sefer Hamitzvot, positive commandment(aseh) 217. In Hilchot Gerushin10:16, Maimonides appears to contradict himself by quoting Bar Kapara: “One should always be closer to chalitza.” This question is posed and remains unanswered by Rabbi Abraham Hiyya de Boton (c. 1560 – c. 1605) in Lechem Mishneh. Rabbi Mas'ud Chai ben Aharon Rokeach (1689– 1768) in his commentary Ma’aseh Roeach, vol. 2 (Hilchot Gerushin 10:16 and Hilchot Yibum veChalitza 1:2) and Rabbi Abraham ben Judah Leib (1788-1848) in his work commentary on Mishneh Torah, Nachat Eitan (Hilchot Yibum veChalitza 1:2), answers that while Maimonides follows the sages’ view that ulterior motives don’t render levirate marriage incest, unlike Abba Saul, and for this reason when there is uncertainly whether there is ulterior motives (stam) we don’t obstruct levirate marriage. He, nevertheless, is in agreement that when there is evidently ulterior motives, levirate marriage is still undesirable, thus the second statement by Maimonides discouraging levirate marriage in such cases.

[77] Commentary on the Talmud Yevamot 39b.

[78] Nimukke Yosef commentary to the Rif, Yevamot 13a.

[79] Responsa 509. He cites the opinion of the Rif and Maimonides and then says this opinion is the correct one, unless the man is married already – chalitza then should come first.

[80] He first ruled like the Sages and then retracted like Abba Saul (Tosafot Yevamot39b). His second opinion is his conclusive view (Hagahot MaimoniyutHilchot Yibum veChalitza 1:1).

[81] Teshuvot Rivash 209; Tur Even Haezer 165.

[82] His maternal grandfather Rabbi Eliezer ben Yoel HaLevi of Bonn (Ra’avyah), followed the view preferring levirate marriage.

[83] Or Zarua 443.

[84] Or Zarua 443.

[85] Or Zarua 443.

[86] Hagohat haSemak 286. It writes: In Ashkenaz the custom to ‘also’ perform levirate marriage.

[87] Sha’alot u’Teshuvot Radbaz 108.

[88] Section 52, Hilchot Yibum veChalitza, in the Leipzig manuscript.

[89] Beginning of chapter and beginning of chapter 2, folio 473 & 475 in the Leipzig manuscript.

[90] Deuteronomy 25:5.

[91] Deuteronomy 25:9.

[92] Beit Yosef commentary on the TurEven Haezer 165.

[93] While there was a close relationship between the great rabbis of England and Northern France, the work of Etz Chaim was influenced by the teachings of the great rabbis of England that included the illustrious rabbinical family of Rabbi Moses of London, and his sons Elijah Menachem of London and Berachia of Lincoln, whose family originally came from Mainz, Germany, where the practice was to perform levirate marriage, as testified by French Tosafist Rabbi Peretz of Corbeil (d. 1295).

[94] Mishneh TorahHilchot Yibum veChalitza 1:2. See also Pirush Hamishnayot, Bechorot 1, and Sefer Hamitzvot, positive commandment(aseh) 217.

[95] 10:16.

[96] He says this a kushya atzumah (a might difficulty) in Maimonides.

[97] Vol. 2, Hilchot Gerushin 10:16 and Hilchot Yibum veChalitza 1:2.

[98] Hilchot Yibum veChalitza 1:2.

[99] See Akiva Aaronson’s “People of the Book: Five Hundred Years of the Hebrew Book from the Beginning of Printing to the Twentieth Century” (Fedheim).

[100] Even Haezer ch. 165:1.

[101] Even Haezer ch. 165:1.

[102] Aruch Hashulchan 165:15. In 165:14 he writes: We have never seenlevirate marriage practiced in our country (Lo rainu yibum b’mdinoseinu). He concludes however if both the levir and the widow request to marry, one may perform levirate marriage even if there are ulterior motives.

[103] DaykanDinei Nissiun veGeirushin, p. 153; Schereschewsky, Dinei Mishpacha, p. 213; Klein, Isaac, A Guide to Jewish Religious Practice, The Laws of Marriage, p. 389. Israeli law allows for imprisonment to compel a man to perform chalitza (Menachem Elon, Jewish Law: History, Sources, Principles, p. 831.

[104] Although 13th century English Rabbi Jacob ben Judah Chazan appears to follow the Spanish custom by citing the view that supports levirate marriage first and then mentions Rabbi Jacob Tam’s opinion. See Beit Yosef commentary to the TurEven Haezer 165. See however footnote 71 regarding the reconciliation of the contradiction in Maimonides, whereby commentaries argue that the view that levirate marriage is preferable may refer to a case where the levir intends to do it for the purpose of the mitzva. This would not negate the preference for chalitza, as per the opinion of Rabbeinu Tam, when the premise is that people don't have correct intentions. This would imply that Jacob ben Judah Chazzan's citing of Rabbeinu Tam is in fact reflecting that the practise in England of the 13th century was not to perform levirate marriage, as was the case in France.

[105] Yevamot 39b. This is based on the reading of the mishna, Yevamot 5:1: “One who had intercourse with his yevama, whether whether due to coercion or willingly; or…intentionally, i.e., he knew she was his yevama and nevertheless had intercourse with her without intent to perform levirate marriage…has thereby acquired his yevama.” Nachmainides argues that Abba Saul, who says intent of the mitzva is necessary for levirate marriage, must be of the opinion that the marriage under coercion is not valid. See also Beit Meir 165 who suggests that the marriage without proper intent would not take hold due to it being an incestuous relationship. The reasoning of Nachmanides is that the woman only becomes permitted, in his view of the opinion of Abba Saul, when the act of levirate marriage is performed. Accoridngly, the opinion of the sages (or those who have a more minimalist of Abba Saul’s opinion) the permission of the woman takes place with the death of the husband without children. Encyclopedia Talmudit 21:350, footnote 940.

[106] Beit Shmuel commentary to Shulchan Aruch, Even Haezer, 166:5.

[107] Sh’alot u’Teshuvot Harashba 1:1165. Unclear, according to Rashba, whether this is Biblical or Rabbinica in origin (see Encyclopedia Talmudit 21:351, footnote 941).

[108] Nimmuḳe Yosef commentary to the Rif, Yevamot 18a. He proves this from the mishna Yevamot 5:1: “One who had intercourse with his yevama, whether…intentionally, i.e., he knew she was his yevama and nevertheless had intercourse with her without intent to perform levirate marriage…has thereby acquired his yevama.” Nimmuḳe Yosefconcludes that since the Talmud does not point out that this mishna must exclusively follow the view of the sages who are not concerned about intent indicates that this also follows Abba Saul in a case when the act of levirate marriage had already been consummated albeit without proper intent. Abba Saul’s view must merely be in the first instant and rabbinic in origin but not applicable ex post facto. This view is also the understanding of the Ritva in the opinion of Abba Saul.

Edited by Sora Feldman